Opinion
C/A 1:22-2812-JD-SVH
05-05-2023
Tammy H. B.,[1] Plaintiff, v. Kilolo Kijakazi,[2] Acting Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Shiva V. Hodges, United States Magistrate Judge.
This appeal from a denial of social security benefits is before the court for a Report and Recommendation (“Report”) pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying her claim for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether she applied the proper legal standards. For the reasons that follow, the undersigned recommends that the Commissioner's decision be reversed and remanded for further proceedings as set forth herein.
I. Relevant Background
A. Procedural History
On October 19, 2016, Plaintiff protectively filed applications for DIB and SSI in which she alleged her disability began on July 18, 2013. Tr. at 164-72, 173-80. Her applications were denied initially and upon reconsideration. Tr. at 122-26, 129-34. On July 18, 2019, Plaintiff had a hearing before Administrative Law Judge (“ALJ”) Ethan Chase. Tr. at 42-66 (Hr'g Tr.). The ALJ issued an unfavorable decision on October 9, 2019, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 24-41. Subsequently, the Appeals Council denied Plaintiff's request for review. Tr. at 1-7.
Plaintiff brought an action seeking judicial review in this court on March 22, 2021. Tr. at 772. On October 26, 2021, the court issued an order granting the Commissioner's motion to remand, reversing the decision of the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g), and remanding the action for further administrative proceedings. Tr. at 770-802. The ALJ held a second hearing by telephone on April 15, 2022. Tr. at 732-69. On April 27, 2022, the ALJ issued a partially-favorable decision, finding Plaintiff was not disabled prior to April 1, 2020, but became disabled on that date and continued to be disabled. Tr. at 708-31. Because the case had previously been remanded by the court, Plaintiff had the option to either: (1) file written exceptions with the Appeals Council within 30 days; or (2) file a new civil action in federal court. Tr. at 708-09. Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on August 22, 2022. [ECF No. 1].
The notice of decision informed Plaintiff that the ALJ's decision would “become final on the 61st day following the date of this notice” and that she would subsequently “have 60 days to file a new civil action in Federal district court.” Tr. at 709.
B. Plaintiff's Background and Medical History
1. Background
Plaintiff was 49 years old at the time of the first hearing and 52 years old at the time of the second hearing. Tr. at 46, 944. She completed the General Educational Development (“GED”) tests, obtaining a high school equivalency certificate. Tr. at 46. Her past relevant work (“PRW”) was as a waitress and dining room attendant. Tr. at 47. She alleges she has been unable to work since June 6, 2014. Tr. at 768.
During the second hearing, Plaintiff's counsel acknowledged a gap in the medical evidence prior to June 6, 2014, and moved to amend her alleged disability onset date to coincide with the medical evidence.
2. Medical History
On June 16, 2014, an MRI of Plaintiff's cervical spine showed a posterior annular bulge with central disc protrusion, mild central canal stenosis with flattening of the ventral thecal sac, and mild-to-moderate left neural encroachment at ¶ 3-4; a central-to-right parasagittal annular tear with a small disc herniation, flattening of the ventral cord, mild central canal stenosis, and mild bilateral neural foraminal encroachment at ¶ 4-5; and posterior annular bulging, flattening of the ventral thecal sac, moderate-to-several bilateral neural foraminal encroachment, and bilateral perineural cyst at ¶ 6-7. Tr. at 1399-1400. An MRI of Plaintiff's right shoulder indicated minimal thickening of the distal supraspinatus and infraspinatus tendons, mild hypertrophic degenerative changes of the right AC joint with minimal underlying impingement syndrome, type II down-sloping acromion, trace bursitis in the subacromial/subdeltoid bursa, and abnormal fluid surrounding the inferior labrum. Tr. at 1401-02.
Plaintiff followed up with orthopedic surgeon Gene Massey, M.D. (“Dr. Massey”), on June 19, 2014, to review the MRI results. Tr. at 1403. She reported having been injured in a motor vehicle accident (“MVA”) on July 18, 2013, having been evaluated by Dr. Anderson, having received cervical epidural steroid injections (“ESIs”) from Dr. Sauer, and having participated in physical therapy. Tr. at 1405. Dr. Massey assessed C4-5 central disc herniation, C5-6 left foraminal stenosis, C6-7 right disc osteophyte complex with severe foraminal stenosis, right upper extremity (“RUE”) radiculopathy, and right shoulder subacromial bursitis. Tr. at 1405. He referred Plaintiff for electromyography (“EMG”) and nerve conduction studies (“NCS”) and to an orthopedic shoulder specialist and prescribed Cyclobenzaprine 10 mg every 12 hours, Neurontin 300 mg at bedtime, and Norco 5-325 mg every eight hours. Tr. at 1405-06. He indicated Plaintiff should remain out of work until after her next visit. Tr. at 1407.
Plaintiff presented to Kimberly A. Cecchini-Purgavie, D.O. (“Dr. Cecchini-Purgavie), for EMG and NCS on July 16, 2014. Tr. at 1414. Dr. Cecchini-Purgavie indicated EMG and NCS of the bilateral upper extremities (“BUEs”) and cervical paraspinal region did not show any evidence of cervical nerve root irritation, myopathy, plexopathy, peripheral neuropathy, or pronator syndrome and were considered normal. Tr. at 1417.
Plaintiff reported she was unable to tolerate oral anti-inflammatory drugs and endorsed worsening neuropathic pain in her neck and BUEs on July 24, 2014. Tr. at 1420. Dr. Massey prescribed a topical pain cream, referred Plaintiff to a pain management physician, and authorized her to return to work with the following restrictions: work limited to four hours per day; no pushing, pulling, or excessive lifting; sedentary work with ability to change positions; and three shifts per week. Tr. at 1420, 1422.
Plaintiff complained of arm pain on exertion, muscle weakness, arthralgia/joint pain, back pain, swelling in the extremities, numbness, frequent or severe headaches and migraines, and hair loss on August 29, 2014. Tr. at 1428. She requested surgical intervention. Tr. at 1429. Dr. Massey noted tenderness of the bilateral paracervicals and right trapezius, tenderness over the right deltoid, pain elicited by motion, trace right triceps weakness, decreased sensation of the middle finger, and positive Spurling's test on the right. Tr. at 1428-29. He stated Plaintiff had failed considerable non-operative treatment and recommended she proceed with anterior cervical discectomy and fusion (“ACDF”) at the C6-7 level. Tr. at 1429. He indicated Plaintiff should remain out of work pending her next evaluation. Tr. at 1430.
Plaintiff returned for a preoperative visit on October 3, 2014. Tr. at 1435. Dr. Massey indicated he would provide Plaintiff with a bone growth stimulator following surgery, as he felt it was medically-necessary to expedite her arthrodesis. Id. He prescribed Norco 7.5 mg and Cyclobenzaprine 7.5 mg. Id.
Plaintiff was hospitalized at Grand Strand Regional Medical Center (“GSRMC”) October 8 through October 10, 2014. Tr. at 1372. Dr. Massey performed ACDF at Plaintiff's C6-7 level. Id. Following surgery, Plaintiff had some difficulties with pain, muscle spasms in her neck and shoulders, and urinary retention. Id. Upon discharge, she was instructed to wear a neck brace for comfort, avoid heavy lifting over 10 pounds, avoid strenuous bending or twisting, and follow up with Dr. Massey within two weeks. Tr. at 1373.
Plaintiff developed post-surgical complications and was readmitted to GSRMC from October 16 until October 20, 2014, for urinary retention, urinary tract infection (“UTI”), and post-operative fever. Tr. at 1378. She received intravenous antibiotics and had difficulty voiding her bladder. Tr. at 1379. Although she was able to void after a Foley catheter was removed, studies showed a significant amount of residual urine in her bladder. Id. Plaintiff was instructed on procedures for self-catheterization to avoid urinary retention and UTIs. Id.
Plaintiff followed up with urologist Robert Jansen, M.D. (“Dr. Jansen”), on November 6, 2014. Tr. at 531. She complained of back pain and dysuria with gross hematuria over the prior few days. Id. She noted minimal residual urine with self-catheterization. Id. Dr. Jansen noted urinalysis was positive and prescribed Bactrim DS for a UTI and Diflucan 150 mg to prevent a yeast infection. Id.
On December 19, 2014, Plaintiff complained of new onset thoracic pain with possible radicular symptoms. Tr. at 1443. Dr. Massey ordered an MRI of Plaintiff's thoracic spine and indicated she should remain out of work until her next evaluation. Tr. at 1443, 1445.
On January 8, 2015, an MRI of Plaintiff's thoracic spine showed mild facet hypertrophy at ¶ 9-10 and T10-11 and a small T2 hyperintense focus within the right hepatic lobe that was possibly a cyst. Tr. at 1447.
Plaintiff returned to Dr. Massey on January 13, 2015. Tr. at 1448. Dr. Massey referred Plaintiff to physical therapy and indicated she should remain out of work and follow up in six weeks. Tr. at 1450, 1452.
Plaintiff participated in physical therapy at Next Step Rehabilitation from January 23 to March 23, 2015. Tr. at 1506-1517. She made progress with cervical mobility and endurance. Tr. at 1508.
Dr. Massey noted Plaintiff seemed to be doing well on February 24, 2015. Tr. at 1456. He refilled Tramadol, authorized Plaintiff to remain out of work for four additional weeks, and indicated he would consider releasing her to light duty work at her next visit. Id.
Dr. Massey declined to authorize Plaintiff to return to work on March 24, 2015, because she had recently been diagnosed with walking pneumonia and was under antibiotic treatment. Tr. at 1461. He stated Plaintiff seemed to be fusing well and should continue a home exercise program and bone stimulator use. Id.
On April 21, 2015, Dr. Massey noted Plaintiff had multiple bouts of walking pneumonia since her surgery and continued to complain of neck pain. Tr. at 1466. He indicated Plaintiff had recently undergone a chemical peel for skin cancer. Id. He ordered an MRI of the cervical spine to rule out a deep infection and indicated Plaintiff should remain out of work until her next visit. Tr. at 1467.
On May 28, 2015, an MRI of Plaintiff's cervical spine showed postoperative findings of C6-7 anterior fusion and no changes to the small central C4-5 and the left paracentral C5-6 disc herniations, but worsening moderate-to-severe left foraminal stenosis at ¶ 5-6 and mild-to-moderate bilateral C3-4 foraminal stenosis that had worsened slightly on the right. Tr. at 1470-71.
Dr. Massey released Plaintiff to return work requiring no pushing, pulling, or excessive lifting in excess of 10 pounds on June 4, 2015. Tr. at 1474-75.
On July 16, 2015, Plaintiff reported increased neck and back pain and numbness in the C5-6 distribution since returning to part-time work. Tr. at 1478. Dr. Massey noted Plaintiff was tender over the cervical paraspinals, had full strength of the BUEs, and had normal sensation from C5 to T1. Id. X-rays showed solid appearance of the hardware and good progression of the fusion. Id. Dr. Massey believed Plaintiff's symptoms were related to deconditioning from surgery and the duration of her injury. Tr. at 1479. He indicated Plaintiff remained limited to working 15 hours per week with no pushing, pulling, or excessive lifting greater than 10 pounds. Tr. at 1479, 1480.
Plaintiff continued to endorse worsening back pain and radiating right leg pain in a sciatic distribution down to the foot on August 27, 2015. Tr. at 1484. Dr. Massey noted positive seated straight-leg raising (“SLR”) test on the right and ordered an MRI of Plaintiff's lumbar spine. Tr. at 1485.
On October 13, 2015, an MRI of Plaintiff's lumbar spine showed minimal degenerative changes at ¶ 4-5 and L5-S1. Tr. at 424.
Plaintiff followed up with Dr. Massey to review results of the MRI on October 20, 2015. Tr. at 410. Dr. Massey explained the MRI showed no evidence of significant degeneration, stenosis, herniation, or nerve compression. Id. He indicated he saw no explanation for Plaintiff's radiating leg pain and suspected it was muscular, as Plaintiff likely placed increased burden on her lower back to compensate for her neck problems. Id.
On November 12, 2015, Plaintiff complained of cramping and back pain that radiated through her right lower extremity (“RLE”) and numbness and tingling in her bilateral arms. Tr. at 406. Dr. Massey referred Plaintiff for EMG and NCS of the BUEs. Tr. at 407. He indicated he considered Plaintiff's back issues to be related to her cervical spine. Id.
Plaintiff presented to her primary care physician (“PCP”) Joseph Papotto, D.O. (“Dr. Papotto”), on November 16, 2015. Tr. at 582-85. Dr. Papotto recorded normal findings on physical exam, aside from trace edema. Tr. at 584. He assessed abnormal weight gain, cervical disc disorder, fibromyositis, and edema. Tr. at 585
On December 11, 2015, EMG and NCS showed evidence of moderate bilateral C6, C7, and C8 radiculopathy. Tr. at 419.
Dr. Massey reviewed the EMG and NCS findings with Plaintiff on January 5, 2016, noting they showed bilateral C6 to C8 nerve root irritation and radiculopathy. Tr. at 403. He recommended repeat MRI of the cervical spine to evaluate the disc at ¶ 4-5. Id.
Plaintiff presented to Dr. Jansen as a walk-in patient for urine retention on January 13, 2016. Tr. at 533. Dr. Jansen inserted a Foley catheter to drain Plaintiff's bladder and instructed her to leave the catheter inserted for several days before removing it and to follow up three days later. Id. He assessed retention of urine. Id.
On January 19, 2016, an MRI of Plaintiff's cervical spine showed postsurgical changes at ¶ 6-7 with degenerative disc disease (“DDD”) above greater-than-below the fusion; moderate narrowing of the spinal canal at ¶ 4-5 and C5-6 with trace retrolisthesis at ¶ 5-6; most significant foraminal narrowing at ¶ 5-6 on the left with moderate-to-severe left foraminal narrowing and suspected compression of the existing left C6 nerve root; and less-pronounced narrowing at other levels. Tr. at 413.
Plaintiff followed up with Dr. Massey to discuss the MRI results on January 29, 2016. Tr. at 397. She reported numbness and tingling in her bilateral arms and back pain that radiated down her right leg with numbness and tingling in her toes. Tr. at 399. Dr. Massey noted the MRI showed worsening stenosis at ¶ 4-5 and C5-6 and stated the findings were consistent with Plaintiff's worsening symptoms. Tr. at 400. He discussed conservative and surgical treatment options, but concluded surgery was necessary. Id. Plaintiff opted to proceed with surgery. Id.
Plaintiff reported worsening back pain and radiating right leg pain in a sciatic distribution to the foot with associated cramping on February 25, 2016. Tr. at 395. She indicated intramuscular steroid injections had been ineffective. Tr. at 395-96. She endorsed weight gain, exercise intolerance, chest pain on exertion, arm pain on exertion, shortness of breath when walking, cough, muscle aches and weakness, frequent severe headaches, migraines, restless legs, fatigue, swollen glands, and sinus pressure. Tr. at 396. Dr. Massey noted the workers' compensation provider had authorized Plaintiff to proceed with neck surgery. Id. He observed Plaintiff to be tender over the bilateral cervical paraspinals. Id. He indicated Plaintiff should participate in physical therapy pending neck surgery. Id.
Plaintiff presented to physical therapist Liesel M. Barker (“PT Barker”) for an initial evaluation on February 25, 2016. Tr. at 430. PT Barker noted Plaintiff's doctor had imposed a 10-pound lifting restriction. Id. She observed 4+/5 strength in the BUEs on manual muscle testing and decreased ROM of the cervical spine. Tr. at 430-31. She recommended skilled physical therapy to decrease pain, improve function, and increase strength and ROM. Tr. at 431. Plaintiff subsequently participated in 12 physical therapy sessions. Tr. at 435-69.
On April 6, 2016, Dr. Massey performed ACDF at Plaintiff's C4-5 and C5-6 levels, removal of hardware and anterior cervical instrumentation at ¶ 6-7, anterior cervical interbody cage placement at ¶ 4-5 and C5-6, and anterior cervical instrumentation from C4 through C6. Tr. at 342-44.
Plaintiff presented to physician assistant Janelle A. Morgan (“PA Morgan”) for a postoperative visit on April 21, 2016. Tr. at 384. She reported numbness in her fingers, trapezial pain, and concern as to ROM of her neck. Tr. at 386. PA Morgan observed swelling and limited active and passive ROM and noted Plaintiff was not neurovascularly intact. Id. She indicated Plaintiff's wound was clean, dry, and had no signs of drainage or infection. Tr. at 386-87. PA Morgan consulted with Dr. Massey, who recommended they give it more time. Tr. at 387.
Plaintiff reported arm pain on exertion, muscle weakness, back pain, swelling in the extremities, numbness, and migraines on May 31, 2016. Tr. at 383. Dr. Massey indicated Plaintiff was progressing well, despite some paresthesia in her hands. Id. He prescribed Norco 7.5-325 mg every six hours and Terocin patches for neck pain. Tr. at 384.
On July 12, 2016, Plaintiff reported increased pain following coughing spells due to an upper respiratory infection. Tr. at 380. She described pain in her neck that radiated to her right shoulder and caused numbness and tingling in her bilateral hands. Id.
On August 15, 2016, Dr. Papotto noted Plaintiff had lost 23 pounds. Tr. at 577. He recorded normal findings on physical exam and prescribed Diazepam for muscle spasms. Tr. at 577, 578.
Plaintiff presented to physical therapist Brenden M. Blaschke (“PT Blaschke”) for a physical therapy evaluation on August 16, 2016. Tr. at 473. PT Blaschke noted Plaintiff had a five-pound lifting restriction per her doctor's order. Id. He observed reduced cervical ROM and decreased sensation to light touch on the right from C5 to C8 and on the left at ¶ 4-5. Tr. at 474. He recommended physical therapy three times a week for six weeks to decrease pain, improve function, increase strength and ROM, return Plaintiff to her premorbid state, and allow her to return to work. Tr. at 474. Plaintiff followed up for 12 visits and demonstrated moderate improvement in active ROM and a mild decrease in guarding, although she continued to be weak and guarded with cervical movements. Tr. at 479-521.
Plaintiff endorsed numbness and tingling along the back of her neck, neck pain, and BUE symptoms on August 23, 2016. Tr. at 377. Dr. Massey noted examination of the BUEs showed 5/5 strength in the deltoids, biceps, triceps, wrist extensors, wrist flexors, and intrinsics. Id. He indicated Plaintiff had intact sensation from C5 to T1, negative Hoffman's sign, and 2+ radial pulses. Id. He instructed Plaintiff to continue physical therapy and medications. Tr. at 378.
Plaintiff reported numbness and tingling along the back of her neck, neck pain, and numbness in her arms on September 27, 2016. Tr. at 374. Dr. Massey recommended a functional capacity evaluation, prescribed Mobic, and refilled Gabapentin and topical analgesic patches. Tr. at 375.
Plaintiff complained of a four-day history of migraine or sinus headache and neck pain on December 30, 2016. Tr. at 569. Dr. Papotto recorded normal findings on physical exam, except for nasal obstruction, cervical tenderness, and flushed, erythematic left cheek. Tr. at 571-72. He assessed headache, cervical disc disorder, and sinusitis and refilled Tramadol and Cyclobenzaprine. Tr. at 572.
Plaintiff presented to anesthesiologist Stephen E. Boatwright, M.D. (“Dr. Boatwright”), for an initial pain management consultation on January 30, 2017. Tr. at 597. She reported lower back and neck pain with limited ROM and frequent loss of feeling in her right arm. Tr. at 598. She indicated she performed minimal activities of daily living (“ADLs”) and often took breaks. Id. She noted her pain was increased by prolonged walking, standing, and sitting with her head tilted down. Id. Dr. Boatwright observed tenderness at the base of the skull, trapezius, and cervical and lumbar spine. Id. He noted sensory changes to the right forearm in the C5-6 dermatome. Tr. at 600. He prescribed Neurontin 300 mg and Norco 7.5-325 mg, planned to titrate Gabapentin, and referred Plaintiff for physical therapy. Tr. at 597.
Plaintiff continued to complain of neck pain with BUE symptoms and back pain on February 13, 2017. Tr. at 640. Dr. Massey reviewed x-rays of the cervical spine and noted “some subsidence at the C5-6 level and fragmentation of the graft,” but “[n]o evidence of hardware failure.” Tr. at 641. He recommended EMG and NCS of the BUEs to rule out peripheral compression as the source of Plaintiff's symptoms. Id.
On February 15, 2017, Plaintiff returned to Dr. Cecchini-Purgavie for EMG and NCS. Tr. at 637, 1495-98. Dr. Cecchini-Purgavie observed diminished reflexes in Plaintiff's bilateral biceps, brachioradialis, and triceps. Tr. at 637. On the right, she noted C5 decreased sensation of the outer upper arm, C6 decreased sensation of the radial forearm, thumb, and index finger, and C7 decreased sensation of the middle finger. Id. On the left, she recorded C5 decreased sensation of the outer upper arm and C6 decreased sensation of the radial forearm, thumb, and index finger. Id. Her impression was cervical root radiation on the right at ¶ 5, C6, and C7 and on the left in the C5-6 distribution. Tr. at 638.
Plaintiff presented to nurse practitioner Mary P. McKinney (“NP McKinney”) in Dr. Boatwright's office on February 22, 2017. Tr. at 660. She reported increased neck and back pain. Id. NP McKinney increased Norco to 10-325 mg and advised against taking Valium and Cyclobenzaprine together. Id.
On February 23, 2017, Dr. Massey indicated the EMG and NCS revealed persistent cervical nerve irritation from C5 through C7. Tr. at 635. He recommended a CT scan to rule out pseudoarthrosis and opined that it was likely chronic nerve damage due to Plaintiff's injury. Id. He also recommended an MRI of the lumbar spine. Id.
On February 27, 2017, an MRI of Plaintiff's lumbar spine showed lumbar spondylosis without significant central canal stenosis and small disc protrusions into the right L4-5 and left L3-4 neural foramen with possible contact of the exiting left L3 nerve root. Tr. at 642.
Dr. Massey reviewed results of a CT scan of Plaintiff's cervical spine and an MRI of her lumbar spine on March 9, 2017. Tr. at 631. He noted the MRI of the lumbar spine showed mild, multilevel spondylotic changes and small areas of disc bulging, but no evidence of nerve compression, and the CT scan showed possible pseudoarthrosis at ¶ 5-6 with a possible broken screw at ¶ 5-6. Id. He recommended an external bone growth stimulator for possible delayed union and a rheumatological evaluation for Plaintiff's continued neck and back pain, as he was concerned about a possible inflammatory arthropathy. Id.
On March 22, 2017, NP McKinney refilled Cyclobenzaprine HCl 10 mg and Norco 10-325 mg, prescribed Gabapentin 300 mg, and instructed Plaintiff to continue a home exercise plan for core stability and weight management. Tr. at 664. She noted sensory changes in the C5-6 dermatome of the right forearm. Tr. at 666.
Plaintiff followed up with NP McKinney to review the MRI and CT scan results on April 11, 2017. Tr. at 668. She reported pain and limited ROM in her neck with tensing up on the right side of her neck and loss of feeling in her right arm. Tr. at 669. NP McKinney indicated they would hold off on cervical ESIs, as Plaintiff continued to use the bone stimulator. Id. She observed tenderness and reduced ROM in Plaintiff's lumbar and cervical spines and sensory changes in her right forearm in the C5-6 dermatome. Tr. at 669-70. She recommended diagnostic medial branch blocks (“MBBs”) at ¶ 3, L4, and L5 and refilled Norco and Cyclobenzaprine. Tr. at 668.
Dr. Boatwright administered MBBs at Plaintiff's right L3, L4, and L5 levels on April 24, 2017. Tr. at 672-73.
Plaintiff presented to physical therapist Tracy Cobb (“PT Cobb”) for an evaluation on April 25, 2017. Tr. at 685. She rated her pain as a nine and described being awakened by pain, difficulty finding a comfortable position, weakness, and loss of function and motion due to pain, stiffness, and swelling. Id. PT Cobb noted Plaintiff had a five-pound lifting limit. Id. She observed forward head and rounded shoulders posture, increased lumbar lordosis, guarded neck and trunk mobility, decreased sensation in the right C6 distribution, 3+/4 BUE strength, 4-/5 left lower extremity (“LLE”) strength, 3+/5 RLE strength, antalgic gait with guarded trunk and slow pace, and moderate tightness in the right trapezius and scalene. Tr. at 686. She noted pain and reduced ROM with all motion of the cervical and lumbar spine, BUEs, and RLE. Id. She recommended two physical therapy sessions per week for eight weeks. Tr. at 688.
On May 2, 2017, Plaintiff reported her pain decreased from an eight to a two to three on a 10-point scale in the four hours following the MBBs, providing 80% post-injection pain relief. Tr. at 674. She continued to report pain in her neck and right arm as an eight. Id. NP McKinney observed tenderness and limited ROM in Plaintiff's neck and back and sensory changes in the C5-6 dermatome of the right forearm. Tr. at 675. She recommended a second set of diagnostic MBBs at Plaintiff's L3, L4, and L5 levels. Tr. at 674. She indicated Plaintiff would be a candidate for radiofrequency ablation if she received 50-75% pain resolution from the MBBs. Id.
Dr. Boatwright administered MBBs at Plaintiff's right L3, L4, and L5 levels on May 8, 2017. Tr. at 677-78.
On May 11, 2017, Plaintiff reported back pain without radiation and neck pain with numbness in the bilateral arms in the C6 distribution. Tr. at 628. Dr. Massey recommended a CT scan to evaluate for pseudoarthrosis at the C5-6 level. Tr. at 628.
On May 15, 2017, Plaintiff reported 90% pain relief immediately following the most recent MBBs and described her pain as decreasing from a nine to a two to three in the four-hour period following the procedure. Tr. at 680. NP McKinney observed tenderness at the base of Plaintiff's skull, in the trapezius area, in the paraspinal muscles, and over the lumbar facets at ¶ 3, L4, and L5. Tr. at 681. She noted limited ROM and swelling to the right side of the neck, increased pain on provocative testing to the lumbar spine, slightly flexed-forward gait, and sensory changes in the right forearm C5-6 dermatome. Tr. at 681-82. She recommended right lumbar L3 through L5 radiofrequency ablation of the lumbar medial nerves of the facet joints. Tr. at 680.
On May 19, 2017, a CT scan of Plaintiff's cervical spine showed ACDF of the C4 through C6 levels with fractures through both C6 screws; a bone plug spacer at the C6-7 level; and no acute cervical fracture or bony central canal stenosis. Tr. at 295-96.
On May 30, 2017, Dr. Boatwright performed radiofrequency ablation of the lumbar medial branch nerves on the right at ¶ 3, L4, and L5. Tr. at 108384.
Plaintiff presented to Dr. Papotto for evaluation of her blood pressure on June 13, 2017. Tr. at 1173. She indicated her blood pressure had been significantly elevated at 180/101 mmHg when she underwent a recent procedure. Id. However, her blood pressure was 134/80 mmHg during the visit. Tr. at 1174. Dr. Papotto assessed elevated blood pressure reading without diagnosis of hypertension and cervical disc disorder. Tr. at 1176.
Plaintiff presented to the Neurosurgery Spine Clinic at the Medical University of South Carolina (“MUSC”) on July 11, 2017. Tr. at 981. She complained of neck pain with radiation into the right arm and occasional pain on the left and dropping items with her right hand more often than her left. Id. She also endorsed myalgias, arthralgias, stiff joints, neck and back pain, headaches, dizziness, and paresthesia. Id. On exam, Sunil Patel, M.D. (“Dr. Patel”), observed grip weakness greater on the right than the left. Id. He reviewed a CT scan of the cervical spine that showed a broken screw at the C6 fusion level, pseudoarthrosis at ¶ 5-6, and spondylosis at ¶ 3-4. Id. He recorded normal findings on physical exam. Tr. at 982. He assessed cervical radiculopathy and cervical spondylosis with myelopathy and radiculopathy. Tr. at 1001.
On July 14, 2017, nurse practitioner Margaret K. Brothers (“NP Brothers”) suggested Plaintiff undergo a re-exploration ACDF for hardware removal and possible replacement. Tr. at 1009.
Plaintiff was hospitalized at MUSC Health from August 23 to August 26, 2017. Tr. at 967-72. She underwent exploration of prior ACDF, removal of C4-6 anterior cervical instrumentation, and C3-C4 and C5-C6 ACDF with interbody graft/integrated anterior plate instrumentation. Tr. at 968. During the procedure, one of the surgeons injured Plaintiff's carotid artery and performed primary repair with sutures. Id. Plaintiff complained of dysphagia and demonstrated impaired swallowing ability. Tr. at 1039, 1059. She was released on a liquid diet and was instructed to follow up one to three times a week for dysphagia treatment. Tr. at 968.
Plaintiff complained of tingling in her feet and legs on March 1, 2018. Tr. at 1156. Dr. Papotto noted cervical tenderness and edema and prescribed Furosemide 20 mg daily. Tr. at 1160. He acknowledged Plaintiff had numbness and tingling in both arms. Id. He assessed abnormal liver function results, abnormal weight gait, hemangioma of liver, and cervical disc disorder. Id. He admonished Plaintiff to lose weight. Id.
On April 23, 2018, an MRI of Plaintiff's thoracic spine showed an unchanged liver lesion and small disc bulges with the largest at ¶ 7-8 that did not significantly narrow the spinal canal or produce any significant neuroforaminal narrowing. Tr. at 1113.
On May 18, 2018, Dr. Boatwright indicated Plaintiff had been under his care since August 18, 2017, and could not work due to multiple pain and surgical issues. Tr. at 979.
On July 25, 2018, Plaintiff endorsed mild fatigue, sleep disturbance, weight gain, joint stiffness, occasional leg cramps, painful joints, depressed mood, and stressors. Tr. at 1087-88. She complained of lower back pain with radiation into her bilateral legs and painful neck pain that radiated into her bilateral shoulders. Tr. at 1088. She indicated she had experienced constant right arm numbness since starting physical therapy. Id. Dr. Boatwright observed Plaintiff to appear stressed and to be posturing and guarded. Id. He noted positive compression pain more to Plaintiff's right arm and hand than her left. Id. He found tenderness and increased pain with extension and rotation of Plaintiff's back and noted provocative testing increased axial pain with some extension to the legs and thighs. Tr. at 1089. He recorded sensory changes to the RUE in the C6 dermatomal distribution, 5/5 hand grip, and positive Spurling's test with radiation to the right scapula and RUE to the first two digits. Id. He prescribed Methylprednisolone therapy pack 4 mg and instructed Plaintiff to stop physical therapy, as it appeared to be aggravating her neck pain and radicular symptoms. Tr. at 1086. He assessed failed cervical back syndrome and cervical disc disorder at ¶ 5-6 with radiculopathy. Id. He continued Amitiza for drug-induced constipation, MS Contin ER 15 mg and Percocet 10-325 mg for spine pain, Topamax, and Diazepam. Tr. at 1087.
Plaintiff followed up with MUSC Neurosurgery for swelling in her neck, cervical pain, and numbness on August 10, 2018. Tr. at 1074. She indicated her swelling tended to increase as the day went on, but NP Brothers did not observe swelling on exam. Id. NP Brothers recommended Plaintiff follow up with her PCP for a more thorough workup as to her swelling. Id.
On August 30, 2018, Dr. Papotto noted cervical tenderness on exam. Tr. at 1152. He indicated Plaintiff had lost 18 pounds, had mild edema in her ankles, and had improved lab study results due to weight loss. Id. He refilled Plaintiff's medications. Id.
On November 19, 2018, Plaintiff indicated she had been seen in the emergency room on October 16, 2018, after sustaining a fall and losing consciousness. Tr. at 1092. She described increased neck pain, increased frequency and severity of headache, upper right-sided shoulder pain, new increased numbness and weakness in her right arm, increased pain in her upper and lower back, difficulty lying on her right side, and cough due to increased pain and inflammation. Id. She indicated she experienced increased difficulty performing self-care, had to have assistance due to balance instability, experienced sharp pain in her neck, and had increased pain with raising her arm to chest level, sitting and standing for long periods, bending, and physical movement and activity. Tr. at 1092-93. She rated her pain as an eight, but noted her medication helped to provide some relief and allowed her to live a more active lifestyle than she otherwise would. Tr. at 1093. Dr. Boatwright continued Percocet, Diazepam, Amitiza, Neurontin, Topamax, and MS Contin. Tr. at 1091. He referred Plaintiff to a neurologist for EMG and NCS of her BUEs and bilateral lower extremities (“BLEs”). Id.
On December 4, 2018, EMG and NCS of Plaintiff's BLEs showed bilateral sensory neuropathy and RLE active S1 radiculopathy. Tr. at 1082. NCS of Plaintiff's BUEs were within normal limits with no evidence carpal tunnel syndrome or ulnar neuropathy. Id. Michael McCaffrey, M.D. (“Dr. McCaffrey”), indicated cervical paraspinal testing was not performed due to previous cervical surgery. Id.
On December 19, 2018, Plaintiff endorsed continued pain in her cervical spine with radiation into her bilateral shoulders and increased pain in her lower back with tightness and stiffness of her lumbar spine that made it difficult for her to bend. Tr. at 1095. She rated her pain as a seven to an eight and indicated she had increasing difficulty with all care and required assistance due to balance instability and “seeing stars.” Id. However, she further indicated her medication provided some relief and allowed her to be more active. Id. Dr. Boatwright noted Plaintiff was using medications to attempt to obtain reasonable pain control, but it had been difficult, and he was unable to prescribe higher doses. Tr. at 1094. He recommended psychiatric treatment for support and coping. Id. He stated Plaintiff had a severe disease and her severe pain was valid. Id. On exam, Dr. Boatwright noted tenderness of the neck with ROM restricted in all planes and tender bilateral facets, positive Spurling's test to the left shoulder and upper arm area, mildly decreased hand grip on the right, and anxious appearance. Tr. at 1096. He stated Plaintiff complained of depressed mood, stressors, and difficulty sleeping. Id.
Plaintiff continued to report neck and back pain, radicular symptoms in her neck and upper extremities (“UEs”), and severe headaches on January 21, 2019. Tr. at 1098. She rated her pain as a seven and indicated her medication provided some relief and allowed her to be more active than she would be without it. Id. Dr. Boatwright observed flat affect, tenderness in the posterior occipital area of the head, positive Spurling's test to the left shoulder and upper arm, poor core strength and tone in the abdomen, bilateral paraspinous muscle tenderness in the back, brisk deep tendon reflexes in the RUE, mildly decreased hand grip on the right, and tenderness, restricted ROM in all planes, and tender bilateral facets in the neck. Tr. at 1098-99. He noted Plaintiff had chronic and progressive post-surgical pain that was not adequately controlled despite aggressive medical treatment. Tr. at 1097. He further indicated Plaintiff's current treatment was “borderline effective in reducing pain to tolerable levels.” Id. He recommended Plaintiff see a psychiatrist and therapist to assist with her pain and its emotional and depressive effects. Id. He continued MS Contin, Topamax, Neurontin, Percocet, and Amitiza, prescribed Mirapex and magnesium oxide for muscle spasms, and decreased Diazepam with the goal of weaning Plaintiff off Benzodiazepines because of the increased risk factors they presented. Tr. at 1097-98.
Plaintiff presented to licensed professional counselor Heather Partridge (“Counselor Partridge”) for an evaluation on January 28, 2019. Tr. at 1332. She indicated she had historically been cheerful and positive, but had been feeling down and depressed since 2017 when the screws in her back broke and caused her to experience severe pain. Tr. at 1333-34. She indicated it was difficult for her to accept that she was unable to return to the job she had been in for 17 years. Tr. at 1334. Counselor Partridge observed Plaintiff to be very tearful throughout the assessment. Id. She assessed adjustment disorder with depressed mood. Tr. at 1332.
On January 30, 2019, an MRI of Plaintiff's lumbar spine showed mild DDD and mild-to-moderate facet arthrosis slightly increased from the prior study, mild foraminal narrowing at a couple levels without any tight stenoses, and an indeterminate liver lesion. Tr. at 1101.
Plaintiff presented to physician assistant Kerri Frey (“PA Frey”) in Dr. Boatwright's office on February 20, 2019. Tr. at 1222. She reported her pain medication regimen provided reasonable pain control and increased mobility. Id. However, she rated her pain as an eight, endorsed increased cramping since starting magnesium oxide and Mirapex, and described increasing lumbar pain radiating down both legs and into her feet, neck pain radiating down her shoulders and into her arms and hands, and headaches. Tr. at 1222, 1223, 1224. PA Frey observed flat and anxious affect, positive Spurling's test to the left shoulder and upper arm, poor core strength and tone, bilateral paraspinous muscle tenderness, brisk deep tendon reflexes in the RUE, mildly decreased right hand grip, and tenderness, restricted ROM in all planes, and tender bilateral facets in the cervical spine. Tr. at 1224. She continued MS Contin, Topamax, Amitiza, and Neurontin, decreased Percocet from three to two times a day, and discontinued Diazepam, magnesium oxide, and Mirapex. Tr. at 1222-23. She noted Plaintiff had filled Diazepam 5 mg on January 21, as well as an old prescription for Diazepam 10 mg on January 22 and informed Plaintiff that she should continue to slowly taper off of Diazepam, as she would not refill it. Tr. at 1223. She indicated Plaintiff should consider bilateral lumbar transforaminal ESI and repeat radiofrequency ablation. Id.
On February 21, 2019, Dr. Boatwright included an addendum to Plaintiff's record noting he had discussed her inconsistent urine drug screen (“UDS”) with PA Frey and was dismissing her as a patient. Tr. at 1225.
On March 5, 2019, Plaintiff described problems sleeping, waking with stabbing pain in her heels, feeling hopeless at times, low energy, feeling tired all the time, and pain impacting her ability to engage in ADLs. Tr. at 1337. Counselor Partridge noted Plaintiff shared her recent stressors related to her health and was tearful throughout the process. Id. She assessed a current moderate episode of major depressive disorder (“MDD”) and indicated that Plaintiff continued to have chronic pain that impacted her depression. Tr. at 1336-37. She indicated that if Plaintiff's pain were better managed, she would likely see remission of her depression and planned to engage her in therapy to help her better manage her depressive symptoms. Tr. at 1337.
Plaintiff presented to Dr. Papotto for an annual physical on March 6, 2019. Tr. at 1142. Dr. Papotto observed cervical tenderness. Tr. at 1147. He noted Plaintiff had “had a falling out with Dr. Boatwright's office and [was] no longer seeing them so [had] no pain manager.” Id. He indicated Plaintiff needed to find another pain management physician, as he was unable to prescribe opioids. Id. He initially indicated he would take over prescribing Diazepam, but subsequently wrote: “Walmart would not fill Diazepam due to Pt. getting recent opioids from another provider tha[n] Boatwright. I will not re-send to another pharmacy since the patient never disclosed this to me.” Id. He referred Plaintiff to another pain management provider. Id.
Plaintiff presented to Dr. Papotto to discuss medication options on March 21, 2019. Tr. at 1138. She indicated she had not been accepted in the pain management office and requested another referral. Tr. at 1141. Dr. Papotto noted cervical tenderness on physical exam. Tr. at 1141-42. He increased Gabapentin to 600 mg three times a day and added Baclofen. Tr. at 1142.
On April 8, 2019, Plaintiff reported she had recently withdrawn from opioids because she had no doctor who would prescribe them. Tr. at 1339. Counselor Partridge recommended Plaintiff continue with cognitive behavioral therapy and follow up with pain management. Id.
On May 15, 2019, Plaintiff rated cervical and lumbar pain as a nine. Tr. at 1132. She also endorsed headaches, depression, and numbness in her right arm. Id. Gerald Congdon, M.D. (“Dr. Congdon”), noted right anterior shoulder tenderness, paracervical tenderness from C1 through C4, and paralumbar tenderness at ¶ 2 and L3. Tr. at 1133. He refilled Percocet 10-325 mg three times a day. Tr. at 1134.
Plaintiff rated her pain as a nine on June 12, 2019. Tr. at 1130. She endorsed cervical and lumbar spine pain, headaches, depression, and numbness in her right arm. Id. She indicated she was unable to perform ADLs. Id. Dr. Congdon noted paracervical tenderness from C1 through C4 and paralumbar tenderness at ¶ 2 and L3. Tr. at 1131. He refilled Cyclobenzaprine 10 mg daily and Percocet 10-325 mg three times a day. Id.
On June 27, 2019, x-rays of Plaintiff's cervical spine showed loss of the typical lordosis with straightening of the cervical spine, cervical changes from ACDF from C3 through C7, and mild disc space height loss at ¶ 7-T1. Tr. at 1120-21.
On July 1, 2019, physical therapist Melissa Gray (“PT Gray”) prepared a progress note in which she indicated Plaintiff had completed seven physical therapy sessions. Tr. at 1122. She noted Plaintiff reported bilateral pain that increased as each day progressed in her lower cervical/upper trapezius areas and lumbar regions at rest and with any bending or returning to standing. Id. She stated Plaintiff reported immediate improvement with aquatic therapy, but feeling sore afterwards. Id. She indicated Plaintiff complained she was unable to sleep on her right side and felt significant pressure in her bilateral lower cervical/upper trapezius regions and constant paresthesia in her BUEs with her arms going numb upon reaching past 90 degrees. Id. She acknowledged Plaintiff's reports of difficulty transitioning from sitting to standing, turning her neck to the right, reaching with her right arm past chest height, looking down, and looking down and to the right and her complaints of numbness in her feet and standing tolerance of about 20 minutes. Id. PT Gray noted Plaintiff's “[s]ubjective complaint of pain at cervical through lumbosacral area and paresthesia (B) UE's/LE's persists at a high level.” Id. She stated Plaintiff's cervical mobility had become more limited in flexion and bilateral rotation since she started therapy, but her right shoulder mobility had improved with aquatic therapy. Id.
Plaintiff described chronic pain in her neck and back, headaches, and numbness in her right arm on July 10, 2019. Tr. at 1127. She reported inability to perform ADLs. Tr. at 1128. Dr. Congdon observed paracervical tenderness from C1 through C4 and paralumbar tenderness from L2 to L3. Id. He refilled Percocet 10-325 mg three times a day. Tr. at 1129.
Plaintiff returned to Counselor Partridge for cognitive behavioral therapy on July 11, 2019. Tr. at 1340. She reported she had restarted pain management treatment and talk therapy was helpful. Id. Counselor Partridge encouraged Plaintiff to work on improving her communication with her family. Id.
On August 5, 2019, Counselor Partridge encouraged Plaintiff to practice assertiveness at home, ask for help, and focus on what was within her control. Tr. at 1342. Plaintiff reported her tendency to clean when she felt stressed had caused her increased physical symptoms. Id. She endorsed some built-up anger and said she was feeling down and sometimes wanted to yell. Id. Counselor Partridge referred Plaintiff to another counselor over the period she expected to be on maternity leave. Id. She encouraged Plaintiff to continue with counseling and to speak with her provider about medications to help with her MDD. Id.
Plaintiff returned to Dr. Congdon on August 7, 2019. Tr. at 1125. She described constant sharp, aching, stabbing, and throbbing pain that radiated from her neck down her right shoulder blade. Id. She also complained of muscle spasms in her back. Id. She rated her pain as a nine. Id. She described difficulty swallowing. Tr. at 1126. Dr. Congdon observed paracervical tenderness from C1 through C4 and paralumbar tenderness from L2 to L3. Id. He assessed degeneration of lumbar intervertebral disc, long-term use of opiate analgesics, degeneration of cervical intervertebral disc, and spasm of back muscles and prescribed Percocet 10-325 mg three times a day. Id.
Plaintiff presented to Stephen Smith, M.D. (“Dr. Smith”), for a consultative medical evaluation on August 17, 2019. Tr. at 701-06. She endorsed cervical pain upon turning her head to the right, sitting for extended periods, and bending over, as well as radiating pain down her BUEs that was aggravated primarily by lifting her arms above chest level. Tr. at 704. She also reported migraines that primarily occurred in rainy weather and upon looking at a computer for too long, reading a book, or looking down. Id. Dr. Smith observed Plaintiff to “walk with somewhat of an erect posture,” to not move her arms normally, and to have little movement of the cervical spine during ambulation. Id. Plaintiff demonstrated cervical flexion to 20/50 degrees, extension to 10-20/60 degrees, lateral flexion to 20/45 degrees, right rotation to 20/80 degrees, and left rotation to 45/80 degrees. Tr. at 701. She had lumbar flexion to 60-70/90 degrees, left shoulder abduction to 120/150 degrees, right shoulder abduction to 90/150 degrees, left shoulder forward elevation to 120/150 degrees, right shoulder forward elevation to 90/150 degrees, and bilateral internal rotation to 45/80 degrees. Id. Plaintiff demonstrated normal ROM in all other areas. Id. She showed normal bilateral grip strength, slow gait, 4/5 BUE strength, 5/5 BLE strength, no atrophy in the BUEs or BLEs, 2+ reflexes bilaterally, 2+ peripheral pulses bilaterally, and normal heel, toe, and tandem walk. Tr. at 702.
Dr. Smith provided the following impression:
Overall, the patient performed the exam with significant limitations in cervical spine and shoulders, though she did have other normal range of motion examinations, the exam was done very slowly and very cautiously as the patient seemed to be quite worried about some of the movements I asked her to do. She did have somewhat decreased strength in the upper extremities and was only able to squat down about 30% of the way.Tr. at 706.
Dr. Smith completed a medical source statement of ability to do work-related activities (physical). Tr. at 695-700. He indicated Plaintiff could lift and carry up to 10 pounds frequently and 11 to 20 pounds occasionally due to 4/5 strength and radicular symptoms. Tr. at 695. He estimated Plaintiff could sit for 15 minutes, stand for 20 minutes, and walk for 30 minutes at one time without interruption. Tr. at 696. His opinion as to Plaintiff's total abilities to sit, stand, and walk in an eight-hour workday is slightly confusing, as he indicated abilities to sit for four minutes, stand for two minutes, and walk for two minutes, but likely intended to suggest Plaintiff could perform these activities for four hours, two hours, and two hours, respectively, given his prior response. Id. He anticipated Plaintiff would be reclining over any period she was not sitting, standing, or walking. Id. He indicated Plaintiff could frequently perform reaching (other than overhead), handling, fingering, and feeling with the bilateral hands; never perform overhead reaching with the right hand; occasionally perform overhead reaching with the left hand; and occasionally push/pull with the bilateral hands. Tr. at 697. He noted decreased ROM in the shoulder, 4/5 strength, and good fine and gross manipulation skills in the hands. Id. He felt Plaintiff could frequently use her bilateral feet to operate foot controls, as she was able to perform heel/toe walk without much difficulty. Id. He opined that Plaintiff could never climb ladders, ropes, or scaffolds and could occasionally balance, stoop, kneel, crouch, crawl, and climb stairs and ramps. Tr. at 698. He felt Plaintiff could occasionally be exposed to unprotected heights and moving mechanical parts; could frequently operate a motor vehicle; and could frequently be exposed to humidity, wetness, dust, odors, fumes, other pulmonary irritants, extreme cold, extreme heat, and vibrations. Tr. at 699.
On August 19, 2019, Plaintiff complained of occasional dysphagia when she turned her head, but said she did not experience the same feeling when she swallowed while looking straight. Tr. at 1354. Christopher Brown, M.D. (“Dr. Brown”), indicated Plaintiff's symptoms were possibly related to a cervical osteophyte, given her extensive cervical spine history. Id. He assessed esophageal dysphagia and ordered an upper endoscopy. Id.
On December 9, 2019, Plaintiff reported continued difficulty with swallowing solid foods and described problems with food becoming stuck and painful. Tr. at 1348. Dr. Brown prescribed Protonix 40 mg. Tr. at 1350.
On June 8, 2020, Plaintiff reported her esophageal dysphagia was doing well on Protonix. Tr. at 1344. Dr. Brown assessed irritable bowel syndrome with constipation and esophageal dysphagia. Tr. at 1346.
Plaintiff requested weight control medication during an annual physical exam on July 30, 2020. Tr. at 1287. Dr. Papotto noted Plaintiff had gained 46 pounds over the prior year. Tr. at 1292. He found cervical tenderness on physical exam. Id. He prescribed Phentermine 37.5 mg twice a day and Cyclobenzaprine 10 mg three times a day. Id. He assessed allergic rhinitis, abnormal weight gain, cervical disc disorder, fibromyositis, hemangioma of liver, lumbar discogenic pain, and edema. Id.
Plaintiff presented to Dr. Papotto for an annual physical on September 29, 2021. Tr. at 1273. Dr. Papotto noted cervical tenderness on exam. Tr. at 1278. He assessed cervical disc disorder, abnormal weight gait, lumbar discogenic pain, and abnormal liver function test and prescribed Phentermine. Tr. at 1278-79.
Plaintiff presented to Dr. Papotto for routine follow up on February 1, 2022. Tr. at 1260. Dr. Papotto indicated Plaintiff had a chronic pain syndrome due to cervical and lumbar disc disease. Tr. at 1264. He continued Plaintiff on her current medication regimen and completed a physical capacities evaluation form at her request. Tr. at 1203-04, 1264.
C. The Administrative Proceedings
1. The Administrative Hearing
a. Plaintiff's Testimony
i. First Hearing
At the hearing on July 18, 2019, Plaintiff testified she last worked in early 2016. Tr. at 46. She stated she had worked at Compass Cove Resort as a server and manager for 17 years. Tr. at 47. She said she had stopped working because she was no longer able to fulfill her job duties after she sustained injuries in a work-related car accident in 2013. Id. She noted subsequently undergoing three surgeries. Id. She said she could no longer lift over five pounds and felt severe pain when she walked. Id.
Plaintiff explained she underwent fusion surgery at ¶ 6-7 in 2014, but continued to have severe headaches, pain, numbness in her hand, and difficulty lifting over five pounds following the surgery. Tr. at 48. She indicated she received a series of injections and participated in physical therapy prior to undergoing a second surgery. Id. She stated she underwent fusion from C4 to C7 in 2016. Tr. at 50. She said she visited a pain management doctor for severe pain around June 2017 and underwent imaging that showed the titanium screws used to fuse her spine had collapsed. Tr. at 51. She confirmed she underwent a third surgery in 2017 to remove the hardware. Tr. at 51-52.
Plaintiff testified her pain management physician had recently referred her to the surgeon because x-rays had shown collapse and narrowing at the C7-T1 level. Tr. at 52. She indicated the same surgeon had performed her first and second surgeries, but she had declined to return to him prior to the third surgery because he did not inform her about the screw malfunction. Tr. at 53. She stated Dr. Patel had performed her third surgery and she intended to return to him for consultation for a possible fourth surgery. Id.
Plaintiff testified her fingers on her right hand were completely numb and she lost feeling in her arms if she raised them above chest-level. Tr. at 55. She indicated she underwent NCS that showed neuropathy in her BUEs. Tr. at 56. She said she would lose feeling in her right hand, causing her to have difficulty gripping items. Id. She stated she was unable to lift over five pounds due to extreme pain throughout her neck area. Id. She noted her grip was a little better on the left. Tr. at 57. She said she also had difficulty with fine manipulation like keyboarding, picking up small objects, buttoning buttons, and fastening zippers. Id.
Plaintiff stated she used multiple medications for pain and sleep, including Gabapentin, Percocet, Flexeril, Topamax, and Mobic. Tr. at 58. She indicated her medication impaired her concentration and prevented her from focusing for more than 10 to 15 minutes at a time. Tr. at 61-62.
Plaintiff said she continued to have severe lower back pain that caused difficulty sitting for long periods. Tr. at 59. She testified she had undergone five ablation procedures to her lower back, but most of her recent treatment had been focused on her neck. Tr. at 59-60. She indicated she was participating in water therapy because she had difficulty with regular physical therapy. Tr. at 60. She stated she visited her pain management physician monthly. Id.
ii. Second Hearing
At the hearing on April 15, 2022, Plaintiff testified she last worked for about six weeks in 2020, after her husband lost his job. Tr. at 739. She said she had previously worked as a dining room manager for Compass Cove, where she supervised the servers, busboys, and frontline hostesses and sometimes had to fill in as a server or hostess, make tea and coffee, and fill in on the buffet line. Tr. at 740. She explained her job had also required she conduct banking for the business. Id. She indicated she had been injured in an MVA on her way to obtain change from the bank. Id. She said she had attempted to return to work after the MVA, but had noticed the loss of feeling in her hand upon dropping a coffee pot while attempting to pour coffee. Tr. at 740-41.
Plaintiff explained that she had been seeing Dr. Boatwright for pain management, but had been seen by a nurse practitioner in his absence who did not believe she needed as much medication as he had prescribed. Tr. at 740. She stated the conflict between Dr. Boatwright and the nurse practitioner led her to seek pain management treatment from another physician. Tr. at 742. The ALJ questioned Plaintiff further about this matter, as Dr. Boatwright's notes indicated he had dismissed her from the practice based on an inconsistent UDS. Tr. at 743. He also questioned Plaintiff about a note from her PCP indicating he would not send a prescription for Diazepam to another pharmacy because she had not disclosed that she was receiving opioids from another provider. Tr. at 744. Plaintiff stated the confusion might have occurred because she was switching from one provider to another, but she denied having intentionally tried to obtain prescriptions from multiple providers. Tr. at 744-45.
Plaintiff testified her lower back problems had worsened since the prior hearing. Tr. at 745. She said she had participated in eight weeks of aquatic therapy that had helped. Id. She stated she tried to keep moving. Tr. at 746. She explained that she felt “choked” if she looked down for an extended period. Id. She said she had “a lot of fluid buildup” around her neck. Id. She indicated the nerve problems in her arms and hands had stayed the same and she continued to have difficulty if she lifted them too high and brought them back down. Id. She described numbness and an “electric shock shooting feeling” in the back of her arms. Id.
Plaintiff stated she was unable to perform sedentary work because she could not sit for long periods. Tr. at 748. She said she had to shift positions every 15 minutes. Id. She indicated she needed to elevate her feet because the increased pressure of sitting straight up caused her to experience numbness in her BLEs. Id. She testified her neck would lock up or she would develop a choking sensation if she tilted her head down for longer than 10 to 15 minutes. Id. She denied being able to hold a phone for a long period. Tr. at 749. She said she could not work for longer than a four-hour shift. Id.
Plaintiff's counsel advised her of findings on a 2017 EMG and asked if her BUE symptoms had improved over the prior three to four years. Tr. at 750. Plaintiff denied any improvement and indicated her symptoms had worsened. Id. She said someone touching the back of her arms caused her to experience “the worst sensation.” Id. She stated she was unable to tolerate any pressure on her neck, as it caused numbness and a headache. Id. She indicated her doctors had discussed additional surgery, but offered injections to delay it. Tr. at 751.
Plaintiff stated she had recently obtained insurance after having none for a period. Id. She said she had limited ability to keep up with her medical treatment when she had no insurance. Id. She confirmed her prior treatment had included surgeries, radiofrequency ablation, physical therapy, injections, and medications. Id. She indicated that despite all the treatment, her symptoms had only worsened. Tr. at 752. She stated her daily routine included applying ice and trying to avoid activities that triggered her pain. Id.
Plaintiff said her inability to be active had caused her mental difficulty. Id. She said she could not sit on the bleachers to watch her sons' sporting events. Id. She indicated she had tried everything she could do to return to her prior level of functioning. Id. She explained that she had been really upset over the medication issues and felt a bladder infection had caused her UDS to be inaccurate. Tr. at 753. She said she was bothered by her doctor dismissing her by letter instead of giving her an opportunity to explain the discrepancy. Tr. at 753-54. She denied having failed a UDS since changing providers. Tr. at 754.
Plaintiff stated she continued to have bad migraines. Id. She said her headaches often occurred due to changes in the weather. Id. She described pain in the back of her neck. Id. She said she sometimes had to be in a dark room and use ice packs on her head to relax, as the medication was ineffective. Tr. at 755. She stated she sometimes experienced these headaches for two days at a time. Id. She indicated she experienced severe headaches two weeks per month. Id.
Plaintiff testified she slept on an inclined bed because she was unable to lie flat. Tr. at 756. She said she performed stretching exercises upon waking each morning. Id. She stated she spent about an hour each morning preparing and eating breakfast and doing dishes. Id. She indicated she subsequently sat and iced or elevated her legs. Id. She stated she tried to keep moving as much as possible throughout the day, but had to sit and perform stretching exercises, as well. Id.
Plaintiff indicated the work she had performed in 2020 had required little effort, but she was only able to do the job for a couple of a hours on a few days a week. Tr. at 757. She stated the job had required she stand and she had developed swelling in her feet due to the standing. Id.
Plaintiff described her pain as starting at a six and increasing to an eight or nine by the end of each day. Tr. at 757-58. She stated her worst pain was in her lower back. Tr. at 758. She said it could be exacerbated by bending to pick up an item, sitting, or placing any pressure on her lower back. Tr. at 758-59. She described unbearable tension and stiffness in her neck that required she sit and ice it. Tr. at 758.
Plaintiff testified none of the treatment methods she had tried had provided long-term relief of her symptoms. Tr. at 759. She said the ablations provided four or five months of relief, but her pain subsequently returned. Id. She stated she continued to have no feeling in her fingertips on the right. Tr. at 760. She explained that she dropped items at times and did not know when it might occur. Id.
Plaintiff stated her medications caused dry mouth and required she drink a lot of water. Tr. at 761. She said she felt sleepy if she sat and attempted to focus on something for more than a few minutes. Id. She indicated her inability to perform household chores and activities with her children had caused increased stress, depression, and anxiety. Tr. at 762. She denied taking medication specifically for depression or anxiety. Id.
b. Vocational Expert Testimony
Vocational Expert (“VE”) Julie Harvey reviewed the record and testified at the second hearing. Tr. at 764-67. The VE categorized Plaintiff's PRW as a dining room manager, Dictionary of Occupational Titles No. 310.137-010, as requiring light exertion and a specific vocational preparation (“SVP”) of 6. Tr. at 764. The ALJ described a hypothetical individual of Plaintiff's vocational profile who could perform sedentary work requiring occasional pushing and pulling; occasional postural activities; no climbing of ladders, ropes, or scaffolds; no overhead reaching; frequent handling, fingering, and feeling; and avoidance of concentrated exposure to excessive vibration. Id. The VE testified the hypothetical individual would be unable to perform Plaintiff's PRW. Id. The ALJ asked whether there were any other jobs the hypothetical person could perform. Id. The VE identified sedentary jobs with an SVP of 2 as an addresser, DOT No. 209.587-010, a document preparer, DOT No. 249.587-018, and a table worker, DOT No. 739.687-182, with 14,750, 16,850, and 21,350 positions in the national economy, respectively. Id.
The ALJ next described a hypothetical individual of Plaintiff's vocational profile who could only occasionally handle, finger, and feel. Id. He asked if the same jobs would still be available. Id. The VE testified those jobs would not remain. Id. The ALJ asked the VE if she could identify other jobs that would accommodate those restrictions. Id. The VE stated the only sedentary, unskilled job that the hypothetical individual could perform would be that of a call-out operator, DOT No. 237.367-014, with 18,650 positions in the national economy. Tr. at 765.
For a third hypothetical question, the ALJ asked the VE to consider an individual of Plaintiff's vocational profile and to assume the individual would routinely be off-task for 15% of an eight-hour workday, in addition to normally-scheduled breaks. Id. He asked if the individual would be able to perform any of the jobs the VE previously identified. Id. The VE stated the amount of time off-task would be unacceptable on an ongoing basis. Id.
The ALJ asked the VE if Plaintiff's PRW yielded any skills transferable to a sedentary job with the non-exertional limitations provided in the first hypothetical question. Id. The VE testified it did not. Id.
The ALJ asked the VE if her testimony as to time off-task and overhead reaching was addressed in the DOT. Tr. at 766. She stated it was not, but was instead based on research from other vocational sources. Id.
Plaintiff's counsel asked the VE to consider the restrictions in the first hypothetical question and to further consider that the individual would need to either recline or to elevate her feet to waist-level for a few hours each day. Id. He asked the VE if the additional restriction would preclude the jobs she previously identified. Id. The VE confirmed that it would. Id. Plaintiff's counsel asked the VE if that restriction would generally preclude all work. Id. The VE indicated it would. Id.
Plaintiff's counsel asked the VE to consider that the individual would likely miss two to three days of work per month. Tr. at 767. He asked if that would generally preclude jobs at the unskilled level. Id. The VE confirmed that it would. Id.
Plaintiff's counsel asked the VE to consider that the individual would be limited to sitting for 15 minutes at a time and a total of four hours in an eight-hour workday and standing for two hours in an eight-hour workday. Id. He asked if the restrictions would preclude the sedentary jobs she previously identified. Id. The VE testified it would. Id.
2. The ALJ's Findings
In his decision, the ALJ made the following findings of fact and conclusions of law:
1. The claimant meets the insured status requirements of the Social Security Act through March 31, 2019.
2. The claimant has not engaged in substantial gainful activity since the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. Since the alleged onset date of disability, June 6, 2014, the claimant has had the following severe impairment: degenerative disc disease of the cervical and lumbar spine (20 CFR 404.1520(c) and 416.920(c)).
4. Since July 18, 2013, the claimant has not had 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), 416.924 and 416.926).
5. After careful consideration of the entire record, the undersigned finds that since July 18, 2013, the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except occasional pushing and pulling, occasional postural activities, but no climbing ladders, ropes, or scaffolds, no reaching overhead, frequent handling, fingering, and feeling, and no exposure to excessive vibration.
6. Since July 18, 2013, the claimant has been unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. Prior to the established disability onset date, the claimant was a younger individual age 45-49. On April 1, 2020, the claimant's age category changed to an individual closely approaching advanced age (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. Prior to April 1, 2020, transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled” whether or not the claimant has transferable job skills. Beginning on April 1, 2020, the claimant has not been able to transfer job skills to other occupations (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Prior to April 1, 2020, the date the claimant's age category changed, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 CFR 404.1569, 404.1569a, 416.969, and 416.969a).
11. Beginning on April 1, 2020, the date the claimant's age category changed, considering the claimant's age, education, work experience, and residual functional capacity, there are no jobs that exist in significant numbers in the national economy that the claimant could perform (20 CFR 404.1560(c), 404.1566, 416.960(c), and 416.966).
12. The claimant was not disabled prior to April 1, 2020, but became disabled on that date and has continued to be disabled through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).
13. The claimant was not under a disability within the meaning of the Social Security Act at any time through March 31, 2019, the date last insured (20 CFR 404.315(a) and 404.320(b)).Tr. at 715-22.
II. Discussion
Plaintiff alleges the Commissioner erred for the following reasons:
1) the ALJ did not comply with SSR 96-8p in explaining the RFC assessment;
2) the ALJ failed to properly evaluate the medical opinion evidence; and
3) the ALJ did not evaluate her subjective symptoms in accordance with SSR 16-3p and Fourth Circuit precedent.
Plaintiff briefly asserts that “she met the requirements to be found disabled under Listing 1.04A.” [ECF No. 18 at 27]. Although the court's prior order found this argument meritorious, Tr. at 796, changes to the musculoskeletal listings resulted in elimination of Listing 1.04(A) and incorporation of its criteria with additional criteria into Listings 1.15 and 1.16, as part of the Revised Medical Criteria for Evaluating Musculoskeletal Disorders (“Revised Medical Criteria”), effective April 2, 2021. See 85 Fed.Reg. 78164-01, 2020 WL 7056412 (Dec. 3, 2020); compare 20 C.F.R. Pt. 404, Subpt. P, App'x 1 § 1.04(A), with 20 C.F.R. Pt. 404, Subpt. P, App'x 1 §§ 1.15, 1.16. Listings 1.15 and 1.16 are to be applied “to new applications filed on or after the effective date of the rules, and to claims that are pending on or after the effective date.” Id. The Revised Medical Criteria explain: “This means that we will use these final rules on and after their effective date in any case in which we make a determination or decision .... If a court reverses our final decision and remands a case for further administrative proceedings after the effective date of these final rules, we will apply these final rules to the entire period at issue in the decision we make after the court's remand.” Id. at n.2. Therefore, even if a claimant might have been found disabled as a matter of law under Listing 1.04 prior to the regulatory change, the agency applies the Revised Medical Criteria on remand, and the claimant must prove she meets all the requirements in Listing 1.15 or 1.16 to be found disabled as a matter of law. See Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (“For a claimant to show that his impairment matches a listing, it must meet all the specified medical criteria.”). Because meeting Listing 1.04(A) is insufficient to prove disability as a matter of law under the Revised Medical Criteria and Plaintiff fails to argue she meets the requirements of Listing 1.15 or 1.16, the undersigned finds her assertion unavailing and that she has waived the issue as to whether she was disabled as a matter of law under the listings.
The Commissioner counters that substantial evidence supports the ALJ's findings and that the ALJ committed no legal error in her decision.
A. Legal Framework
1. The Commissioner's Determination-of-Disability Process
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a “disability.” 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability as:
the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for at least 12 consecutive months.42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983) (discussing considerations and noting “need for efficiency” in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity; (2) whether she has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents her from doing substantial gainful employment. See 20 C.F.R. §§ 404.1520, 416.920. These considerations are sometimes referred to as the “five steps” of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).
The Commissioner's regulations include an extensive list of impairments (“the Listings” or “Listed impairments”) the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. §§ 404.1525, 416.925. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, she will be found disabled without further assessment. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that her impairments match several specific criteria or are “at least equal in severity and duration to [those] criteria.” 20 C.F.R. §§ 404.1526, 416.926; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's past relevant work to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. §§ 404.1520(h), 416.920(h).
A claimant is not disabled within the meaning of the Act if she can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, §§ 404.1520(a), (b), 416.920(a), (b); Social Security Ruling (“SSR”) 82-62 (1982). The claimant bears the burden of establishing her inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that she is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of “any final decision of the Commissioner [] made after a hearing to which he was a party.” 42 U.S.C. § 405(g). The scope of that federal court review is narrowly-tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to “try these cases de novo or resolve mere conflicts in the evidence.” Vtek v. Finch, 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. “Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed “even should the court disagree with such decision.” Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
B. Analysis
1. RFC Assessment
Plaintiff argues the ALJ did not explain the RFC assessment as required by SSR 96-8p. [ECF No. 18 at 16-31]. More specifically, she maintains the ALJ's finding that she could perform sedentary work fails to account for her UE problems and difficulty sitting for prolonged periods. Id. at 18, 27. She references evidence of UE pain and numbness, disputes the ALJ's conclusion that her symptoms had improved, and contends the ALJ failed to explain how she could perform frequent bilateral handling, fingering, feeling, and reaching, despite her symptoms. Id. at 19-25. Plaintiff points to findings throughout the record, opinion evidence, and her representations and asserts the ALJ failed to account for evidence that her lumbar spine pain and LE symptoms limited her ability to sit for prolonged periods. Id. at 27-31.
The Commissioner argues the ALJ sufficiently explained the basis for his RFC assessment, which was supported by substantial evidence. [ECF No. 22 at 13-19]. She maintains the ALJ specifically evaluated Plaintiff's ability to use her arms and explained his reasons for including specific RFC restrictions to account for her limitations. Id. at 14-16. She contends the ALJ considered Plaintiff's ability to sit for the time needed to perform sedentary work and provided a sufficient narrative discussion to support his conclusion. Id. at 16-17.
A claimant's RFC represents the most she can still do, despite limitations imposed by her impairments and symptoms. 20 C.F.R. §§ 404.1545(a), 416.945(a). It should be assessed based on all the relevant evidence in the record. See 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). It must reflect the ALJ's “consider[ation] of all allegations of physical and mental limitations or restrictions.” SSR 96-8p, 1996 WL 374184, at *5. The ALJ is required to identify the claimant's functional limitations and restrictions and evaluate her remaining capacities for work-related activities. Id. at *2. He must be mindful of the claimant's ability to meet the physical, mental, sensory, and other requirements of work on a regular and continuing basis, “mean[ing] 8 hours a day, for five days a week, or an equivalent work schedule.” SSR 96-8p, 1996 WL 374184, at *2, *7; see also 20 C.F.R. §§ 404.1545(a)(4), (b), 416.945(a)(4), (b).
This requires the ALJ include a narrative discussion of the restrictions in the RFC assessment that cites specific medical facts, such as medical signs and laboratory evidence, and non-medical evidence, including ADLs and observations, and “explain[s] how any material inconsistencies or ambiguities in the case record were considered and resolved.” SSR 96-8p, 1996 WL 374184, at *7. “The RFC assessment must include a discussion of why symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence.” Id. In Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019), the court emphasized that “a proper RFC analysis has three components: (1) evidence; (2) logical explanation; and (3) conclusion.”
Where the claimant asserts a functional limitation that could reasonably be caused by a medically-determinable impairment, that function is contested, and the ALJ should address it in the RFC assessment. See Dowling v. Commissioner of Social Security Administration, 986 F.3d 377, 389 (4th Cir. 2021). “[R]emand may be appropriate where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review.” Mascio, 780 F.3d at 636. The Fourth Circuit has warned that “[a]n ALJ has the obligation to consider all relevant evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding.” Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017) (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)). However, it has also directed district courts to accept an ALJ's statement that he has considered the whole record, “absent evidence to the contrary.” Reid v. Commissioner of Social Sec., 769 F.3d 861, 865 (4th Cir. 2014) (citing Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005) (“[O]ur general practice, which we see no reason to depart from here, is to take a lower tribunal at its word when it declares that it has considered a matter.”)).
The ALJ stated the finding that Plaintiff could perform a reduced range of sedentary work was supported by Dr. Smith's exam findings, treatment records that showed her “medications provide[d] reasonable pain control, increased mobility, and improved quality of life,” and physical therapy records that showed improvement in her “mobility and ability to perform activities of daily living.” Tr. at 719.
The ALJ indicated the RFC “also account[ed] for [Plaintiff's] low back pain. Id. He discussed the objective evidence as to Plaintiff's low back, noting NCS “were suggestive of sensory neuropathy,” EMG “was suggestive of active S1 radiculopathy,” a February 2017 MRI “revealed lumbar spondylosis without significant central canal stenosis and small disc protrusions possibly contacting the left L3 nerve root,” and a January 2019 MRI “revealed mild degenerative disc disease with mild to moderate facet arthrosis and mild foraminal narrowing.” Id. He explained:
This objective evidence supports limiting the claimant to sedentary work with postural limitations and no exposure to excessive vibration. More restrictive limitations are not
warranted, as her degenerative disc disease appears mild with no significant central canal stenosis. Furthermore, physical examination revealed 5/5 strength other than mildly decreased grip strength in the right hand (Ex. 20F/9; 24F/3).Id.
The ALJ's discussion of Plaintiff's RFC assessment fails to reconcile evidence as to the functional limitations imposed by her impairments as required by SSR 96-8p. The ALJ found that Plaintiff could perform sedentary work, but did not specifically and individually address her abilities to sit, stand, and walk. See Tr. at 717-20.
Pursuant to 20 C.F.R. § 404.1567(a) and 416.967(a), sedentary jobs are generally regarded as requiring sitting for most of the day with no more than occasional standing and walking. In reaching his conclusion that Plaintiff could perform work at the sedentary exertional level, the ALJ failed to reconcile evidence that she was limited to sitting for 15 to 20 minutes at a time and no more than four hours in an eight-hour workday. See Tr. at 696 (Dr. Smith's opinion that Plaintiff could sit for 15 minutes at a time and four hours in an eight-hour workday), 748 (testifying that she needed to shift positions every 15 minutes), 1122 (reporting a sitting tolerance of 20 minutes), 1203 (Dr. Papotto's opinion that Plaintiff required a job that permitted shifting positions at will every 20 minutes).
Although the ALJ considered Dr. Smith's opinion somewhat persuasive, but determined the proposed limitations were “not entirely consistent with the medical evidence,” he did not address Dr. Smith's impressions as to Plaintiff's siting ability and explained that he had found Plaintiff limited to sedentary, as opposed to light work, based on her chronic neck issues and low back pain. See Tr. at 720. He did not reconcile his conclusion with the fact that the sitting restriction Dr. Smith indicated was not consistent with work at the sedentary exertional level. The ALJ acknowledged Dr. Papotto's opinions that Plaintiff could sit for one hour in an eight-hour workday and would need to shift positions every 20 minutes, but concluded the opinion was generally “not persuasive,” without specifically explaining why the sitting restrictions were unsupported or inconsistent with the other evidence. See id. He found Plaintiff's statements were “not fully supported,” but declined to specifically address her allegation as to restricted sitting ability. See generally Tr. at 717-20. Even though the ALJ addressed the opinion evidence and Plaintiff's statements generally, he did not satisfy the requirements of SSR 96-8p because he failed to discuss why Plaintiff's symptom-related functional limitations and restrictions could or could not reasonably be accepted as consistent with the medical and other evidence.
The ALJ addressed Plaintiff's abilities to handle, finger, feel, and reach with greater specificity. He wrote: “As for her manipulative limitations, she can tolerate frequent handling, fingering, and feeling in spite of her subjective experience of pain and numbness in the upper extremities. This is consistent with the negative electrodiagnostic findings and her demonstrated gross and fine manipulative skills.” Tr. at 719. He indicated he based the postural and overhead reaching restrictions on the state agency consultants' opinions. Tr. at 720. While the ALJ provided a specific explanation for declining to impose greater restrictions on Plaintiff's abilities to handle, finger, feel, and reach, he did not adequately address evidence related to pain and numbness in her UEs as discussed below.
For the foregoing reasons, the undersigned recommends the court find the ALJ failed to comply with the legal standard outlined in SSR 96-8p in assessing Plaintiff's RFC.
2. Evaluation of Opinion Evidence
Dr. Papotto opined that Plaintiff: could sit, stand, and walk for one hour each during an eight-hour workday; could occasionally lift and push/pull one to 10 pounds; could never lift and push/pull over 11 pounds; could occasionally stoop, kneel, crouch, twist, and climb stairs; required a job that permits shifting positions at will from sitting, standing, or walking; needed to shift positions every 20 minutes; could occasionally reach in all directions; could never repetitively use her feet or hands; had no environmental restrictions; and should elevate her legs to a height of two feet for 80% of the time she was sitting. Tr. at 1203. He stated the restrictions began in November 2018 and had lasted or were expected to last for at least 12 months. Tr. at 1204. He stated his opinion was supported by radiographic and neurosurgical evidence and data. Id. He indicated he did not consider Plaintiff employable on a full-time basis in a competitive work environment that would not accommodate her restrictions. Id.
Plaintiff argues the ALJ failed to evaluate Dr. Papotto's opinion in accordance with the applicable regulations. [ECF No. 18 at 31-35]. She maintains Dr. Papotto's opinion was well-supported by his own records and the other evidence of record, and the ALJ should have given it controlling weight. Id. at 33-35. She asserts the ALJ erred in crediting a consultative physician's opinion over that of a treating physician. Id. at 35.
The Commissioner argues the ALJ properly evaluated Dr. Papotto's medical opinion. [ECF No. 22 at 23]. She points out that “[w]hile the ALJ was not persuaded by all of the limitations set forth in Dr. Papotto's opinion,” he included many similar limitations in the RFC assessment. Id. She maintains the ALJ considered the supportability of Dr. Papotto's opinion and noted the absence of an explanation for the indicated limitations. Id. at 24-25. She further contends the ALJ found Dr. Papotto's opinion was not consistent with the other evidence. Id. at 26-28. She concedes that the Fourth Circuit disapproved of the ALJ's decision in Radford v. Colvin, 734 F.3d 288, 295-96 (4th Cir. 2013), that favored the findings of “non-examining” state agency physicians over that of a treating physician, but points out that Dr. Smith was an examining physician. Id. at 28.
Because Plaintiff filed her claim for benefits prior to March 27, 2017, the ALJ was required to evaluate the medical opinions of record based on the rules in 20 C.F.R. § 404.1527 and § 416.927 and SSRs 96-2p, 96-5p, and 06-3p. Pursuant to these rules and regulations, a treating physician's opinion shall be accorded controlling weight, provided it is well supported by medically-acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence of record. See id. “[T]reating physicians are given ‘more weight . . . since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone[.]'” Lewis, 858 F.3d at 867 (quoting 20 C.F.R. § 404.1527(c)(2)).
The Social Security Administration rescinded these regulations and rulings effective March 27, 2017, and does not accord any particularized weight to opinions from treating physicians in cases filed subsequent to that date. See Rescission of SSR 96-2p, 96-5p, and 06-3p, 82 Fed.Reg. 15,263 (Mar. 27, 2017); 20 C.F.R. §§ 404.1520c, 416.920c (2017). The new regulations are not applicable to cases filed prior to March 27, 2017. See 82 Fed.Reg. 15,263 (stating the rescissions of SSRs 96-2p, 96-5p, and 06-3p were effective “for claims filed on or after March 27, 2017”); see also 20 C.F.R. § 404.1520c (stating “[f]or claims filed before March 27, 2017, the rules in § 404.1527 apply”); 20 C.F.R. §416.920c (stating “[f]or claims filed before March 27, 2017, the rules in § 416.927 apply”).
An ALJ may give less than controlling weight to a treating physician's opinion that is not well supported by medically-acceptable clinical and laboratory diagnostic techniques or is inconsistent with the other substantial evidence of record. SSR 96-2p, 1996 WL 374188, at *2 (1996). However, his assessment of the medical opinion does not end with the determination that it does not deserve controlling weight, as the ALJ is required to weigh all medical opinions of record based on the factors in 20 C.F.R. § 404.1527(c) and § 416.927(c). Johnson, 434 F.3d at 654; 1996 WL 374188, at *4 (1996). Pursuant to 20 C.F.R. § 404.1527(c) and 416.927(c), the ALJ must weigh the medical opinions of record based on “(1) whether the physician has examined the applicant, (2) the treatment relationship between the physician and the applicant, (3) the supportability of the physician's opinion, (4) the consistency of the opinion with the record, and (5) whether the physician is a specialist.” Johnson, 434 F.3d 654 (citing 20 C.F.R. § 404.1527).
The ALJ's discretion permits him “to give less weight to the testimony of a treating physician in the face of persuasive contrary evidence.” Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2011) (citing Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992)). However, if the ALJ declines to issue a decision that is fully favorable to the claimant, his decision “must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reason for that weight.” SSR 96-2p, 1996 WL 374188, at *5 (1996). The ALJ “must always give good reasons” for the weight he allocates to a treating physician's opinion. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
The ALJ found Dr. Papotto's opinion was “not persuasive.” Tr. at 720.
He wrote:
This check-the-box form contains minimal explanation for such extreme limitations. They are also inconsistent with the consultative examination findings, which do not suggest that such extreme limitations are warranted (Ex. 10F). Furthermore, the proposed limitations are inconsistent with Dr. Papotto's own treatment records, which document that the claimant appeared healthy, ambulated normally, and had normal muscle strength (Ex. 5F).Id.
The boilerplate language following the RFC assessment provides: “The undersigned has also considered opinion evidence in accordance with the requirements of 20 C.F.R. 404.1527 and 416.927.” Tr. at 718. However, the ALJ's explanation suggests he evaluated the opinion evidence in accordance with 20 C.F.R. § 404.1520c and § 416.920c, as he discussed his findings as to persuasiveness instead of weight and specifically addressed supportability and consistency, without addressing the other relevant factors under 20 C.F.R. § 404.1527(c) and § 416.927(c). See Tr. at 720; see also 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2) (providing the adjudicator must explain his finding as to the persuasiveness of each medical opinion based on its supportability and consistency). Thus, it appears the ALJ applied an incorrect legal standard in evaluating the opinion evidence.
If the court looks beyond the ALJ's evaluation of persuasiveness instead of weight and accepts his indication that he considered Dr. Papotto's opinion in accordance with 20 C.F.R. § 404.1527 and § 416.927, the ALJ still appears to have applied an incorrect legal standard. The undersigned declines Plaintiff's invitation to find Dr. Papotto's opinion was entitled to controlling weight, as the court should not “re-weigh conflicting evidence” or “substitute [its] judgment for that of the [Commissioner],” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). However, Plaintiff presents a meritorious argument that the ALJ did not provide a sufficient explanation to support his allocation of less than controlling weight to Dr. Papotto's opinion.
The Fourth Circuit has explained that pursuant to 20 C.F.R. § 404.1527(c) and § 416.927(c), “the [treating physician's] 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. Commissioner, Social Security Administration, 983 F.3d 83, 107 (4th Cir. 2020) (citing 20 C.F.R. § 404.1527(c)(2); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987) (emphasis in original). The ALJ's decision does not comply with this direction because he did not conclude Dr. Papotto's opinion was based on medically-unacceptable clinical or laboratory diagnostic techniques or contradicted by other substantial evidence in the record. See Tr. at 720. He found Dr. Papotto's opinion was inconsistent with Dr. Smith's findings, but he did not explain his conclusion and ignored consistent findings between the two opinions. See id. As noted above, both Drs. Papotto and Smith indicated Plaintiff would have to alternate between sitting, standing, and walking on a frequent basis. Compare Tr. at 696, with Tr. at 1203. While Dr. Papotto's treatment notes include few objective findings, the ALJ erred to the extent that he failed to address his opinion in light of the medically-acceptable clinical and laboratory diagnostic techniques within the record as a whole. See Tr. at 720.
In Arakas, 983 F.3d at 106, the court explained: “Upon deciding not to give controlling weight to a treating physician's opinion, ALJs must determine the appropriate weight to be accorded to the opinion by considering “all of . . . the factors” listed in the regulation, which include the length of the treatment relationship, consistency of the opinion with the record, and the physician's specialization.” (emphasis in original). Here, the ALJ disregarded Dr. Papotto's opinion because he found it was not supported by his explanation or treatment records and was inconsistent with Dr. Smith's exam, but his decision is devoid of discussion of the other relevant factors in 20 C.F.R. § 404.1527(c) and § 416.927(c). See Tr. at 720. Therefore, even if the ALJ's decision not to give controlling weight to Dr. Papotto's opinion were supported, he failed to engage in the further analysis required pursuant to 20 C.F.R. § 404.1527(c) and 416.927(c).
In light of the foregoing, the undersigned recommends the court find the ALJ failed to apply the proper legal standard in evaluating the medical opinions of record and that his evaluation of Dr. Papotto's opinion is not supported by substantial evidence.
3. Subjective Symptoms
Plaintiff argues the ALJ did not follow the direction in SSR 16-3p in evaluating her subjective symptoms, which were supported by the record. [ECF No. 18 at 36-37]. She contends the ALJ referenced normal findings and ignored abnormal findings on objective testing. Id. at 37-38. She maintains the ALJ did not explain which of her allegations were inconsistent with the record. Id. at 38-39.
The Commissioner claims Plaintiff is asking the court to reweigh the evidence in arguing the ALJ failed to consider certain evidence. [ECF No. 22 at 19]. She maintains the ALJ specifically acknowledged most of the evidence Plaintiff references. Id. at 21. She contends that ALJ relied on Dr. Boatwright's treatment notes, in addition to Plaintiff's treatment, the other objective evidence, her ADLs, and the medical opinions, in concluding her medications provided reasonable pain control, increased her mobility, and improved her quality of life and her symptoms could be controlled with treatment and would permit her to perform sedentary work. Id. at 22-23, 2931. She maintains the ALJ was not required to accept Plaintiff's testimony at face value. Id. at 23.
“Under the regulations implementing the Social Security Act, an ALJ follows a two-step analysis when considering a claimant's subjective statements about impairments and symptoms.” Lewis, 858 F.3d at 865-66 (citing 20 C.F.R. § 404.1529(b), (c)). “First, the ALJ looks for objective medical evidence showing a condition that could reasonably produce the alleged symptoms.” Id. at 866 (citing 20 C.F.R. § 404.1529(b)). After concluding the impairment could reasonably produce the symptoms the claimant alleges, the ALJ proceeds to the second step, which requires him to “evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's ability to perform basic work activities.” Id. (citing 20 C.F.R. § 404.1529(c)).
An ALJ “improperly increase[s]” the claimant's “burden of proof” where he requires the subjective description of symptoms to be verified by objective medical evidence. Lewis, 858 F.3d at 866. Thus, if an ALJ concludes a claimant has severe impairments that could reasonably cause the symptoms she alleges, the ALJ cannot reject the functional limitations the claimant alleges simply because there are not enough clinical signs and laboratory findings to corroborate the allegations. This does not require the ALJ to accept every representation a claimant makes regarding the intensity, persistence, and limiting effects of her symptoms, but it does require him to consider “whether there are any inconsistencies in the evidence and the extent to which there are any conflicts between [the claimant's] statements and the rest of the evidence, including [the claimant's] history, the signs and laboratory findings, and statements by [the claimant's] medical sources or other persons about how [her] symptoms affect [her].” 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4).
Relevant evidence the ALJ should examine includes statements “from the individual, medical sources, and any other sources that might have information about the claimant's symptoms, including agency personnel, as well as the factors set forth in [the] regulations.” SSR 16-3p, 2017 WL 5180304, at *6. These factors are: (1) the claimant's ADLs; (2) the location, duration, frequency, and intensity of the claimant's pain or other symptoms; (3) any precipitating or aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken to alleviate pain or other symptoms; (5) treatment, other than medication, the claimant receives or has received for relief of pain or other symptoms; (6) any measures the claimant uses or has used to relieve pain or other symptoms (e.g., lying flat on his back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and (7) other factors concerning the claimant's functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3).
“The record should include a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence.” Radford, 734 F.3d at 295 (citing Hines v. Bowen, 872 F.2d 56, 59 (4th Cir. 1989)). The ALJ must explain which of the claimant's alleged symptoms he found “consistent or inconsistent with the evidence in [the] record and how [his] evaluation of the individual's symptoms led to [his] conclusions.” SSR 16-3p, 2017 WL 5180304, at *8. Courts have interpreted the explanation requirement as imposing a duty on the ALJ to “build an accurate and logical bridge” between the evidence and the conclusions as to the intensity, persistence, and limiting effects of the claimant's symptoms. Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting Clifford v. Afpel, 277 F.3d 863, 872 (7th Cir. 2000)).
The ALJ acknowledged some of Plaintiff's allegations, writing:
The claimant alleges disability due to neck and back impairments that she claims cause chronic pain, numbness in the arms and legs, decreased strength, and irritability. According to the claimant, her symptoms limit her abilities to sit, stand, walk, lift over five pounds, bend, squat, perform overhead work, turn her
head, and perform activities of daily living. She also reports severe migraines whenever it rains or the weather changes, and these headaches cause her to lie down for days at a time (Testimony; Ex. 1E; 2E; 24E).Tr. at 718. He found Plaintiff's medically-determinable impairments could reasonably be expected to cause the symptoms she alleged, but found her “statements concerning the intensity, persistence, and limiting effects of [her] symptoms [were] not fully supported.” Id.
The ALJ discussed Plaintiff's treatment history, noting she had undergone three ACDF surgeries in October 2014, April 2016, and August 2017, was prescribed opiates, and participated in physical therapy. Tr. at 718-19. He cited diagnostic testing results that included MRIs of the cervical spine and EMG and NCS. Tr. at 718-19.
The ALJ acknowledged: “In spite of multiple surgeries, [Plaintiff] continued to have radicular symptoms and pain and was diagnosed with failed back syndrome, cervical (Ex. 16F/4).” Tr. at 719. However, citing treatment records that reflected “the claimant's medications provide reasonable pain control, increased mobility, and improved quality of life (Ex. 23F/5, 10; 24F/1), and physical therapy records that indicated “her mobility and ability to perform activities of daily living improved,” he concluded the “evidence support[ed] a finding that the claimant's symptoms can be controlled with treatment and allow for the performance of sedentary work.” Id.
He maintained evidence following the third surgery did not suggest Plaintiff's symptoms were “as severe as she alleged.” Id. He noted that when Plaintiff was discharged after her third surgery, “she had 5/5 motor strength throughout and sensation to light touch was intact bilaterally (Ex. 11F/4).” Tr. at 718. He also pointed to EMG and NCS on December 4, 2018, that “revealed no carpal tunnel syndrome or neuropathy in the upper extremities (Ex. 15F)” and “June 27, 2019, x-rays of the cervical spine [that] revealed postsurgical changes and only mild disc space height loss at ¶ 7-T1 (Ex. 18F/3-4).” Tr. at 719. He discussed Dr. Smith's consultative exam “findings of reduced range of motion in the neck and shoulders, reduced lumbar flexion, 4/5 strength in the proximal upper extremities, and squat . . . limited to 30%,” but noted:
Otherwise, the results were generally unremarkable-she ambulated without difficulty; she got on and off the exam table without difficulty; she had 5/5 grip strength with good gross and fine manipulative skills bilaterally; she could perform tandem, heel, and toe walk without much difficulty; muscle strength was 5/5 in the lower extremities; there was no atrophy; reflexes and sensation were intact (Id.).Id.
The ALJ referenced multiple abnormal objective findings as to Plaintiff's cervical spine and upper extremity radiculopathy over the period prior to her third surgery and cited no evidence that contradicted her allegations as to the effects of her symptoms during this period. See Tr. at 718. Therefore, his decision contains no reason for finding Plaintiff's statements as to the intensity, persistence, and limiting effects of her symptoms during the period prior to her third surgery were not fully supported. See generally Tr. at 718-20.
Despite acknowledging Plaintiff's history of three cervical surgeries with a diagnosis of failed cervical back syndrome and diagnostic evidence of DDD of the lumbar spine, sensory neuropathy of the bilateral lower extremities, and S1 radiculopathy, the ALJ relied heavily on normal clinical findings during exams to discount Plaintiff's allegations. Among the evidence he cited was the December 2018 EMG and NCS report that showed no carpal tunnel syndrome or neuropathy in the upper extremities. Tr. at 719. He erred in concluding these electrodiagnostic studies were contrary to Plaintiff's allegations. The physician who administered the December 2018 EMG and NCS specifically noted he had not administered testing to the cervical paraspinals due to Plaintiff's prior cervical surgery. Tr. at 1082. However, the prior EMG and NCS had evaluated Plaintiff's BUEs and cervical paraspinals. Tr. at 1495-98. While it showed no peripheral neuropathy, myopathy, plexopathy, or pronator cuff syndrome bilaterally, as consistent with the December 2018 EMG and NCS, it indicated cervical nerve root irritation in the right C5, C6, and C7 and left C5 and C6 distributions. See Tr. at 1498. The absence of diagnostic evidence to support Plaintiff's allegations of BUE symptoms on the more recent EMG and NCS appears to be a product of less-thorough testing and does not undermine Plaintiff's allegations as to cervical symptoms.
The ALJ indicated he relied on the physical therapist's observation of improvement and Plaintiff's reports of improvement to her pain management physician in discrediting her allegations and finding overall improvement following the third surgery. The undersigned's review of those records reveals the ALJ ignored evidence to the contrary within the physical therapist's and pain management physician's records and that the overall picture was not one of improvement following Plaintiff's third cervical surgery.
Plaintiff received regular pain management treatment from Dr. Boatwright following her third cervical surgery. See Tr. at 979, 1086-99. Although she indicated her medications helped to provide some relief and allowed her to live a more active lifestyle, she continued to report severe symptoms and functional limitations and high pain scores. See id. Dr. Boatwright and PA Frey noted abnormal findings on exams that the ALJ neglected to address. See Tr. at 979, 1086-99, 1222-24.
In contravention of SSR 16-3p, the ALJ also ignored several statements within Dr. Boatwright's treatment records that supported Plaintiff's allegations. On December 19, 2018, Dr. Boatwright stated Plaintiff was using medications to attempt to obtain reasonable pain control, but it had been difficult, and he was unable to prescribe higher doses. Tr. at 1094. He acknowledged Plaintiff had a severe disease and her severe pain was valid. Id. On January 21, 2019, he noted Plaintiff had chronic and progressive post-surgical pain that was not adequately controlled despite aggressive medical treatment. Tr. at 1097. He further indicated Plaintiff's current treatment was “borderline effective in reducing pain to tolerable levels.” Id.
The ALJ cited PT Gray's report from seven aquatic physical therapy sessions prior to July 1, 2019, to support his conclusion that Plaintiff's symptoms had improved following her third surgery. Tr. at 719. The singlepage report reflects PT Gray's documentation of Plaintiff's complaints of severe symptoms and functional limitations, including pain in her lower cervical/upper trapezius area and lumbar region that ranged from a seven to a nine, constant paresthesia in the BUEs, numbness in her arms upon reaching past 90 degrees, difficulty transferring from a seated to a standing position, difficulty turning her neck to the right, difficulty reaching past chest-height with her right arm, problems looking down directly and down and to the right, numbness in her bilateral feet, a choking sensation with cervical rotation, and standing tolerance of 20 minutes. Tr. at 1122. PT Gray further noted Plaintiff's indication that she obtained some relief and was able to perform ADLs with slightly less difficulty following aquatic therapy sessions. Id. PT Gray noted improvement in Plaintiff's right shoulder mobility, but more limited cervical flexion and bilateral rotation. Id. She stated Plaintiff's bilateral shoulder strength to internal and external rotation was “beginning to show improvement,” but her “functional activity level was still limited due to pain.” Id. While she recognized Plaintiff had “less difficulty performing daily activities following aquatic therapy,” she noted this only occurred “for a couple of hours” following the sessions. Id. A review of PT Gray's report in its entirety does not support the sustained symptom improvement the ALJ suggests.
The ALJ declined to address Plaintiff's consistent complaints to her other medical providers of pain, numbness and tingling in her BUEs and BLEs, and other symptoms. The record reflects Plaintiff's reports to Counselor Partridge of depressive symptoms related to pain. Tr. at 1333-34, 1337, 1342. Plaintiff complained to Dr. Papotto of chronic neck and back pain, tingling in her feet and legs, and numbness and tingling in her arms. Tr. at 1152, 1156, 1160. She indicated to Dr. Brown that she experienced dysphagia when she turned her head. Tr. at 1348, 1354. She advised Dr. Smith that she experienced cervical pain upon turning her head to the right, sitting for extended periods, and bending over; radiating pain down her BUEs that was aggravated primarily by lifting her arms above chest level; and migraines that primarily occurred in rainy weather and upon looking at a computer for too long, reading a book, or looking down. Tr. at 704. She informed Dr. Congdon of high pain ratings in her cervical and lumbar spine and complained of difficulty swallowing, depression, headaches, and right arm numbness. Tr. at 1125, 1127, 1132.
The ALJ also failed to address other medical providers' statements that generally supported Plaintiff's allegations. For example, Dr. Brown indicated Plaintiff's dysphagia symptoms were possibly related to a cervical osteophyte, given her extensive cervical spine history. Tr. at 1354. Counselor Partridge opined that if Plaintiff's pain were better managed, she would likely see remission of her depression. Tr. at 1337. Dr. Smith felt Plaintiff “[o]verall . . . performed the exam with significant limitations in cervical spine and shoulders, though she did have other normal range of motion examinations,” did so “very slowly and very cautiously,” “seemed to be quite worried about some of the movements,” had “somewhat decreased strength in the upper extremities and was only able to squat down about 30% of the way.” Tr. at 706.
The ALJ's decision represents a cherrypicking of the record and fails to reflect adequate consideration of the relevant factors in 20 C.F.R. § 404.1529 and § 416.929 and SSR 16-3p. The ALJ failed to build an accurate and logical bridge to support his conclusion that Plaintiff's statements were inconsistent with the other evidence of record. Therefore, his evaluation of Plaintiff's allegations as to the intensity, persistence, and limiting effects of her symptoms is not supported by substantial evidence.
4. Type of Remand
Plaintiff requests the court remand the case for an award of benefits because she filed her claim for benefits more than five years ago, no additional evidence can be offered, and the record does not support a decision denying disability benefits. [ECF No. 18 at 39-40].
The Commissioner maintains the ALJ's decision is supported by substantial evidence, but asserts that if the court disagrees, it should remand the case for further administrative proceedings because the evidence is not uncontroverted in favor of a finding of disability. [ECF No. 22 at 32].
The Fourth Circuit has explained that it is appropriate for a court to reverse a case without remanding the cause for rehearing “where the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no useful purpose.” Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974). In a subsequent case, the court reversed the Commissioner's decision and remanded the case for an award of benefits where “the ALJ's decision contained numerous fundamental errors and was not supported by substantial evidence” and the plaintiff “presented clear and convincing proof . . . as a matter of law.” Veeney ex rel. Strother v. Sullivan, 973 F.2d 326, 333 (4th Cir. 1992) (citing Sahara Coal Co. v. Director, OWCP, 946 F.2d 554, 558 (7th Cir. 1991) (“If the outcome of a remand is foreordained, we need not order one.”)). An award of benefits is appropriate when “a remand would only delay the receipt of benefits while serving no useful purpose, or a substantial amount of time has already been consumed.” Davis, 2008 WL 1826493, at *5 (citing Parsons v. Heckler, 739 F.2d 1334, 1341 (8th Cir. 1984)); Tinnant v. Schweiker, 682 F.2d 707, 710 (8th Cir. 1982).
“On the other hand, remand is appropriate ‘where additional administrative proceedings could remedy defects ....'” Id. (quoting Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989)). In Radford, 734 F.3d at 294-95, the Fourth Circuit found the district court had chosen the “wrong remedy” in remanding the case with instruction to award benefits. It explained: “If the reviewing court has no way of evaluating the basis for the ALJ's decision, then ‘the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.'” Id. at 295 (citing Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)). It concluded the district court had abused its discretion in directing an award of benefits and considered remand for further proceedings before the agency appropriate “[g]iven the depth and ambivalence of the medical record” and “the ALJ's failure to adequately ‘explain his reasoning.'” Id. at 295-96.
Recently, in Carr v. Kijakazi, C/A No. 20-2226, 2022 WL 301540, at *5 (4th Cir. Feb. 1, 2022), the court noted that only in rare cases is it “clear that an ALJ decision denying benefits, properly explained, could not be supported by substantial evidence in the record.” This decision dictates that district courts only rarely exercise their discretion to remand claims for awards of benefits.
A substantial period of time has been consumed in this case, as Plaintiff filed her claim for benefits approximately six-and-a-half years ago. Tr. at 164-72, 173-80. Reopening the record for more evidence would serve no useful purpose, as Plaintiff's counsel represented the record was complete and the ALJ found her disabled as a matter of law on her fiftieth birthday.
The undersigned is mindful of the Fourth Circuit's direction that the court should only rarely exercise discretion in favor of remanding a case for an award of benefits. However, the undersigned notes that the Fourth Circuit has remanded several cases for awards of benefits in recent years. See Shelley C. v. Commissioner of Social Security Administration, 61 F.4th 341 (4th Cir. 2023) Bilotta v. Saul, 850 Fed. App'x 162 (4th Cir. 2021); Arakas, 983F.3d 83. Even where discretion should only rarely be exercised, failure “actually to exercise discretion, deciding instead as if by general rule, or even arbitrarily, as if neither by rule nor discretion” is an abuse of discretion. James v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1993).
Here, the evidence overwhelmingly shows that over the contested period, Plaintiff had difficulty performing any type of work on a regular and continuing basis, as her pain and other symptoms limited her ability to use her upper extremities, necessitated excessive breaks, and required she frequently alternate sitting, standing, and walking. Based on the evidence set forth above, it appears the record does not contain substantial evidence to support a decision denying benefits under the correct legal standard. Therefore, this case presents the rare circumstance in which the court should exercise its discretion in favor of remanding the case for an award of benefits.
The undersigned has issued over 550 recommendations and orders in Social Security cases over the past 10 years and has only recommended or ordered reversal for an award of benefits in three prior cases. See Michael B. v. Saul, C/A No. 1:20-1999-SVH, 2021 WL 940864 (D.S.C. Mar. 12, 2021); Jackson v. Saul, C/A No. 1:19-2683-SVH, 2020 WL 4813322 (D.S.C. Aug. 19, 2020); Keefer v. Saul, C/A No. 1:18-92-SVH, 2019 WL 3543188 (D.S.C. Aug. 5, 2019).
III. Conclusion and Recommendation
The court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported as a matter of fact and law. Based on the foregoing, the court cannot find that the Commissioner's decision is supported by substantial evidence. Therefore, the
undersigned recommends, pursuant to the power of the court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in Social Security actions under sentence four of 42 U.S.C. § 405(g), that this matter be reversed and remanded to the agency for a calculation of benefits.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and 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
901 Richland Street
Columbia, South Carolina 29201
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).