Opinion
C. A. 1:22-3691-RMG-SVH
09-15-2023
` W.,[1] Plaintiff, v. Kilolo Kijakazi, 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”). 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 affirmed.
I. Relevant Background
A. Procedural History
On March 25, 2020, Plaintiff protectively filed an application for DIB in which she alleged her disability began on February 11, 2020. Tr. at 99, 22224. Her application was denied initially and upon reconsideration. Tr. at 13639, 143-46. On March 22, 2022, Plaintiff had a hearing by telephone before Administrative Law Judge (“ALJ”) Jerry Peace. Tr. at 35-66 (Hr'g Tr.). The ALJ issued an unfavorable decision on April 15, 2022, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 9-32. Subsequently, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. Tr. at 1-6. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on October 25, 2022. [ECF No. 1].
Plaintiff's prior application for benefits was denied by an ALJ in a decision dated February 10, 2020. Tr. at 67-84.
B. Plaintiff's Background and Medical History
1. Background
Plaintiff was 45 years old at the time of the hearing. Tr. at 43. She completed a bachelor's degree. Id. Her past relevant work (“PRW”) was as a social services caseworker and a school bus driver. Tr. at 61-62. She alleges she has been unable to work since February 11, 2020. Tr. at 222.
2. Medical History
On April 23, 2018, x-rays of Plaintiff's lumbar spine showed marked L5-S1 degenerative disc disease (“DDD”) with circumferential bony osteophytes, associated marked bilateral facet arthropathy and sclerosis at ¶ 5-S1, mild disc-space narrowing and moderate degenerative facet arthropathy at ¶ 4-5, and very mild lower thoracic and upper lumbar DDD changes. Tr. at 1130.
On January 14, 2019, magnetic resonance imaging (“MRI”) of Plaintiff's lumbar spine showed multilevel degenerative disease of the mid to lower lumbar spine with a most prominent finding of disc bulge osteophyte complex at ¶ 5-S1. Tr. at 1224-25.
X-rays of Plaintiff's cervical spine showed no abnormalities on April 8, 2019. Tr. at 1129.
Plaintiff underwent electromyography (“EMG”) and nerve conduction studies (“NCS”) on April 30, 2019, that produced height and electrophysiologic evidence suggestive of bilateral median nerve compromises at the wrists (carpal tunnel) with the right side more grossly affected than the left side, but only mild severity as to both. Tr. at 1131-35. The EMG needle study of Plaintiff's bilateral upper extremities (“BUE”) showed no evidence of cervical radiculopathy or brachial plexopathy. Id.
On May 21, 2019, x-rays of Plaintiff's lumbar spine showed DDD at ¶ 5-S1. Tr. at 522. X-rays of her left hip indicated no acute osseous abnormality or joint derangement. Id.
Plaintiff presented to Cody Freeman, M.D. (“Dr. Freeman”), to establish care on February 17, 2020. Tr. at 489. She complained of chronic pain due to a car accident three years prior. Id. She indicated she had been followed by a pain management and spine specialist and had participated in physical therapy for several months. Id. She described chronic low back pain, an eight-to-nine-month history of numbness and paresthesia in her left lower extremity (“LLE”), worsening balance, occasional shock-like pain that traveled down her lower extremities (“LEs”), burning foot pain, a cold sensation in her extremities, and jerking movements in her legs. Id. Dr. Freeman noted 4/5 strength to Plaintiff's LLE, diminished sensation to light touch, pinprick, and vibration in the LLE, and slow, antalgic gait with slight circumduction of the left leg due to weakness. Tr. at 492. He assessed chronic low back pain, chronic neuropathic pain, and myoclonus of the LEs and stated Plaintiff's exam was notable for left-greater-than-right proximal LE weakness and numbness that appeared to be chronic and most likely secondary to lumbar spine disease. Id. He stated Plaintiff's history was suggestive of myoclonus and seemed to be coupled with neuropathic pain of her LEs. Id. Dr. Freeman offered no treatment options other than pain management. Tr. at 492-93.
On February 18, 2020, Plaintiff complained of lower back pain that was worse in the morning, aggravated by standing and walking, and relieved with heat, medications, and lying down. Tr. at 1208. Physician assistant Carl Brinkman (“PA Brinkman”) assessed chronic pain syndrome, low back pain, lumbosacral radiculopathy, and lumbar radiculopathy. Id. He refilled Nucynta 50 mg twice a day, Meloxicam 15 mg once a day, Lyrica 300 mg twice a day, and Morphine Sulfate ER 30 mg every 12 hours. Id.
On March 10, 2020, Plaintiff reported she had been examined by a neurosurgeon who advised her that surgery was unlikely to help because injections had provided no relief. Tr. at 562. She indicated her pain management provider had recommended implantation of a spinal cord stimulator (“SCS”), but she was reluctant to pursue it because she feared it would worsen her fibromyalgia symptoms. Id. She stated she had fallen, used a cane at times, and required a walker, especially when she left her house. Id. She indicated she could not return to work as a social worker because she could not sit for prolonged periods. Id. She said a neurologist had informed her that sensations and tremors in her feet and legs were related to her back problems. Id. She noted she was seeing a provider for depression related to her chronic pain issues. Id. Lori Malvern, M.D. (“Dr. Malvern”), observed tenderness to Plaintiff's lumbosacral spine and decreased range of motion (“ROM”) and noted she walked with a limp. Tr. at 563. She assessed essential hypertension, human immunodeficiency virus (“HIV”), lumbago with leftsided sciatica, recurrent depression, morbid obesity, and tremor and continued Losartan Potassium 100 mg, Hydrochlorothiazide 25 mg, Lyrica 300 mg, and Cymbalta 60 mg. Tr. at 563-64.
Plaintiff complained of low back pain and less than 50% relief on her current medication regimen on April 15, 2020. Tr. at 1207. She rated her pain as a seven before medication and five after medication. Id. PA Brinkman noted Plaintiff had fallen several times, and her primary care physician had “put her on a walker due to that.” Id. He assessed chronic pain syndrome, low back pain, and lumbosacral radiculopathy and refilled Morphine Sulfate ER 30 mg and Nucynta 50 mg. Tr. at 1206.
Plaintiff participated in a telehealth visit with nurse practitioner Douglas McCormick (“NP McCormick”) on May 11, 2020. Tr. at 565. She reported generally doing well, but said she continued to struggle with back pain and her pain management provider was referring her to another orthopedic surgeon for a second opinion. Id. She endorsed foot and ankle problems and indicated she planned to see a specialist for evaluation. Id. NP McCormick noted Plaintiff's viral loan remained undetectable at less than 20. Tr. at 569. He refilled Symtuza. Id.
On June 9, 2020, Plaintiff presented to William Huntington, M.D. (“Dr. Huntington”), for increased nerve symptoms in her foot and ankle. Tr. at 600. She indicated she was doing well overall, but had noticed some recurring pain and swelling over the posterior lateral ankle over the prior couple of months. Id. She stated she was seeing a pain management provider for nervetype symptoms from her back. Id. Dr. Huntington noted neutral hindfoot alignment and maintained arch on standing exam, intact sensation to light touch in the deep peroneal, superficial peroneal, sural, saphenous, and plantar nerve distributions on seated exam, and tenderness to palpation about the peroneal tendons in the distal retromolar groove. Tr. at 602-03. He indicated Plaintiff had no pain on external rotation stress test, stable ankle to anterior drawer, and pain with resisted eversion. Id. He assessed right peroneal tendinitis and ordered a steroid injection to the peroneal tendon sheath. Tr. at 603.
During a telehealth visit with Dr. Malvern the same day, Plaintiff indicated she had started an exercise routine with her husband and son and was walking slowly about three times a week and doing resistance and light weight exercises, although her ankle problems made it difficult for her to perform cardiovascular exercises. Tr. at 570. Dr. Malvern was surprised that Plaintiff's disability benefits application had been denied given that she was unable to sit for long periods, had increased musculoskeletal and neuropathic pain, could not be on her feet for long periods due to pain and increased risk for falls, and needed prescriptions for a walker and cane, as she had fallen several times. Id. She recommended Plaintiff no longer leave her home without an assistive device, as she needed it for balance and to prevent falls. Id. She assessed essential hypertension, HIV, neuropathy, lumbago with leftsided sciatica, depression, morbid obesity, and tremors and continued Losartan, Hydrochlorothiazide, Lyrica, and Cymbalta at the same doses. Tr. at 571.
Plaintiff also followed up with PA Brinkman the same day. Tr. at 1203. She endorsed low back and leg pain and described numbness, aching, burning, and spasms. Tr. at 1204. PA Brinkman assessed chronic pain syndrome, low back pain, and lumbosacral radiculopathy, ordered an MRI of the lumbar spine, prescribed Pregabalin 300 mg every 12 hours, and refilled Morphine Sulfate ER 30 mg and Nucynta 50 mg. Id.
On June 12, 2020, Plaintiff reported having sustained a peroneal tear following a work-related injury three years prior. Tr. at 596. She described recurrent pain and swelling over the prior three-month period. Id. Scott Annett, M.D. (“Dr. Annett”), indicated an MRI did not necessarily demonstrate a tendon tear and that Plaintiff might have a peroneal cordis- type abnormality. Id. He noted tenderness to palpation of Plaintiff's right ankle, posterior to the lateral malleolus and reduced ROM due to discomfort. Tr. at 598. He assessed peroneal tendinitis of the right lower leg and administered a diagnostic right peroneal tendon sheath injection. Tr. at 59899.
Plaintiff continued to endorse persistent low back and leg pain on July 7, 2020. Tr. at 1201. PA Brinkman assessed chronic pain syndrome, low back pain, and lumbosacral radiculopathy. Id. He refilled Morphine Sulfate ER 30 mg and Nucynta 50 mg. Id.
On August 4, 2020, Plaintiff reported the injection relieved her pain for only a day. Tr. at 639. She consistently described pain about the posterior lateral ankle and peroneal tendons and rated it as a four. Id. Dr. Huntington assessed right peroneal tendinitis with peroneal tear and ordered an MRI of Plaintiff's right ankle. Tr. at 641-42.
On August 19, 2020, Plaintiff complained of a high level of uncontrolled low back and leg pain that affected her ability to function and complete daily tasks. Tr. at 1198. PA Brinkman observed paraspinal muscle spasm on the right and left, tenderness to palpation over the lumbosacral spine, positive bilateral straight-leg raising (“SLR”) test, 4/5 bilateral LE (“BLE”) strength, and +1 deep tendon reflexes in the BLE. Id. He reviewed Plaintiff's most recent MRI and indicated it showed disc protrusion at ¶ 4-5 and foraminal stenosis at ¶ 5-S1. Id. He assessed chronic pain syndrome and lumbar radiculopathy, ordered transforaminal lumbar epidural steroid injections bilaterally at ¶ 1, and continued Plaintiff on the same medication regimen. Tr. at 1198-99.
On August 19, 2020, the MRI of Plaintiff's right ankle showed interval healing of the peroneus brevis tendon with resolution of the calcaneal marrow edema and remaining mild longitudinal splitting of the peroneus brevis and longus tendons. Tr. at 1221-22.
On August 25, 2020, Plaintiff complained of pain over the posterolateral ankle, about the peroneal tendons and the rectus, and along the peroneal tendon course in the retromalleolar groove and toward the peroneal tubercle. Tr. at 691. She denied feelings of give-way and instability in her anterior ankle. Id. Dr. Huntington assessed right peroneal tendon tear and right ankle instability and recommended surgery. Tr. at 694.
On September 1, 2020, state agency medical consultant Sherrial Simmers, M.D. (“Dr. Simmers”), reviewed the record and assessed Plaintiff's physical residual functional capacity (“RFC”) as follows: occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds; stand and/or walk for a total of four hours; sit for about six hours in an eight-hour workday; occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; never climb ladders, ropes, or scaffolds; frequently engage in bilateral handling and fingering; avoid concentrated exposure to vibration; and avoid even moderate exposure to hazards. Tr. at 92-96. A second state agency medical consultant William Crosby, M.D. (“Dr. Crosby”), assessed the same physical RFC at the reconsideration level. Compare Tr. at 92-96, with Tr. at 117-22.
On September 14, 2020, Dr. Huntington performed right peroneus longus-to-brevis transfer, tenosynovectomy, lysis of adhesions, debridement of the right peroneus brevis, and excision and exostectomy of symptomatic/hypertrophic right peroneal tubercle. Tr. at 680-90.
Plaintiff followed up with Dr. Malvern the following day. Tr. at 656. She indicated Dr. Huntington was hopeful that the surgery would improve her balance and prevent falls. Id. She reported PA Brinkman had referred her for a second opinion as to her back, and treatment with a counselor was going well. Id. Dr. Malvern continued Lyrica, Cymbalta, Hydrochlorothiazide, and Losartan without adjustment. Tr. at 658.
On September 16, 2020, Plaintiff reported she had undergone peroneal reconstruction two days prior and was scheduled for a surgical consultation as to her back the following month. Tr. at 1195. PA Brinkman observed paraspinal muscle spasm on the left and right sides of Plaintiff's back, tenderness to palpation over her lumbosacral spine, and positive bilateral SLR. Id. He assessed chronic pain syndrome, low back pain, and lumbosacral radiculopathy and refilled Morphine Sulfate ER 30 mg, Pregabalin 300 mg, and Nucynta 50 mg. Tr. at 1195-96.
State agency psychological consultant Xanthia Harkness, Ph.D. (“Dr. Harkness”), reviewed the record and completed a psychiatric review technique (“PRT”) at the initial application stage on September 16, 2020. Tr. at 90-92. She considered Listings 12.04 for depressive, bipolar, and related disorders and 12.15 for trauma and stressor-related disorders and found no difficulties in interacting with others and adapting or managing oneself and mild difficulties in understanding, remembering, or applying information and concentrating, persisting, or maintaining pace. Id. A second state agency psychological consultant Craig Horn, Ph.D. (“Dr. Horn”), reviewed the evidence and reached the same conclusions at the reconsideration level. Compare Tr. at 90-92, with Tr. at 113-15.
Plaintiff presented to physician assistant Jill Biediger (“PA Biediger”) for surgical follow up on September 28, 2020. Tr. at 672. She reported doing well with decreased pain and improved swelling. Id. She indicated she was elevating her right lower extremity (“RLE”) and maintaining nonweightbearing restrictions with use of a splint. Id. PA Biediger noted Plaintiff's surgical incisions were healing well, her posterior calf was nontender with no palpable cords, and she had only mild diffuse edema. Tr. at 674. She stated Plaintiff maintained appropriate clinical position, had intact motor function with active gentle toe flexion and extension and ankle dorsiflexion and plantar flexion, and had tenderness to palpation about the lateral aspect of her ankle. Id. She ordered a short-leg cast and instructed Plaintiff to remain non-weightbearing. Id.
Plaintiff was transported via ambulance to the emergency room (“ER”) at Greer Memorial Hospital on October 5, 2020. Tr. at 668. She complained of an allergic reaction after ingesting candy infused with eight servings of tetrahydrocannabinol (“THC”) in combination with Morphine, and admitted she ingested the THC “to get high.” Tr. at 668, 670. Her oxygen level was 89%, and she was placed on nasal oxygen. Tr. at 669. The attending physician assessed marijuana intoxication with delirium and ordered a sodium chloride bolus and Ondansetron. Tr. at 670-71.
Plaintiff reported doing great and denied pain and other problems on October 14, 2020. Tr. at 725. Dr. Huntington observed calf tenderness without palpable cords, no signs of complex regional pain syndrome, intact ankle plantar flexion and dorsiflexion, intact toe flexion and extension, mild swelling about the lateral ankle, and mild tenderness along the incision. Tr. at 728. He referred Plaintiff to physical therapy, transitioned her into a controlled ankle movement (“CAM”) boot, and instructed her to begin weightbearing as tolerated. Id.
On October 20, 2020, Plaintiff reported her lumbar radicular pain was tolerable on her current medication regimen. Tr. at 1192. She indicated she had been evaluated by Dr. Mina, who had indicated she was not a surgical candidate. Id. PA Brinkman observed Plaintiff to be tender to palpation over the lumbosacral spine. Id. He refilled Morphine Sulfate ER 30 mg every 12 hours and Nucynta 50 mg every 12 hours. Tr. at 1192-93.
Plaintiff presented to physician assistant Robert Ridgeway (“PA Ridgeway”), for a neurosurgical consultation on October 22, 2020. Tr. at 712. She reported a four-year history of constant low back pain from the L3 to S1 levels with associated radicular numbness in a non-dermatomal distribution in her LEs. Id. She described persistent numbness on the left in her anterior thigh, anterior and posterior lower leg, and along the plantar surface of her foot, and in her RLE to a milder degree. Id. She indicated she experienced pain that woke her during the night, had difficulty finding a more comfortable position, and had weakness in her BLE. Id. She stated physical therapy and injections had not relieved her symptoms. Id. PA Ridgeway observed 5/5 strength to Plaintiff's BLE, intact sensation to light touch bilaterally, 0+ reflexes in the bilateral patellae, 1+ reflexes in the left ankle, and mild tenderness to palpation along the paraspinous muscles and over the posterior iliac crest and lumbar spine, although Plaintiff reported a subjective decrease in sensation in her LLE. Tr. at 714. He assessed low back pain with BLE radicular symptoms. Id. He reviewed a July 2020 MRI and mentioned lumbar spondylosis most notable at ¶ 4-5 and L5-S1, but did not feel that the findings explained the extent of Plaintiff's symptoms. Id. He recommended Plaintiff follow up with a pain management physician for an SCS trial. Id.
Plaintiff complained of chronic lumbar pain and pain that radiated to her BLE on October 30, 2020. Tr. at 1188. She indicated physical therapy had increased her lumbar pain in the past and lumbar injections and a home exercise program had provided little relief. Id. Matt Hamilton, M.D. (“Dr. Hamilton”), assessed lumbar DDD, lumbar foraminal stenosis, lumbar spondylosis, osteophyte of vertebrae, lumbar herniated disc, other cord compression, kissing spine of the lumbar region, lumbar radiculopathy, lumbosacral radiculopathy, chronic pain syndrome, other chronic pain, and neuropathy of the LLE. Tr. at 1189. He recommended an SCS trial. Tr. at 1190.
On November 11, 2020, Plaintiff reported improving ankle pain with little pain when non-weightbearing. Tr. at 756. She endorsed more pain while performing physical therapy exercises and upon palpation and indicated she was working hard in physical therapy on dorsiflexion and eversion. Id. She stated she had difficulty wearing her brace. Id. PA Biediger observed acceptable ROM and tenderness about Plaintiff's peroneal tubercle and just proximal to the retromalleolar groove. Tr. at 758. She recommended Plaintiff transition from the CAM boot to a lace-up ankle brace and continue physical therapy. Id.
On November 16, 2020, Plaintiff reported doing well and participating in physical therapy and denied having fallen since surgery. Tr. at 735. She indicated she had been informed she was not a candidate for back surgery and was pursuing an SCS. Id. Dr Malvern continued Cymbalta, Losartan, Lyrica, and Hydrochlorothiazide at the same doses. Tr. at 736-37.
Plaintiff's HIV viral load remained undetectable on November 17, 2020. Tr. at 738. NP McCormick noted normal findings on exam, aside from morbid obesity. Tr. at 743. He administered vaccines and refilled Symtuza. Tr. at 743-44.
Plaintiff presented to PA Brinkman the same day and indicated lumbar radicular pain was persistent, but tolerable with her current medication regimen. Tr. at 1186. PA Brinkman observed tenderness to palpation of the lumbosacral spine, paraspinal spasm on the left and right, and positive bilateral SLR. Id. He refilled Morphine Sulfate ER 30 mg and increased Nucynta 50 mg to three times a day to better control Plaintiff's pain. Tr. at 1186-87.
Plaintiff reported her ankle pain had improved and she was driving herself on December 10, 2020. Tr. at 845. She described some residual ankle swelling, soreness, and weakness, but no real pain. Id. Dr. Huntington noted Plaintiff maintained eversion actively, was non-tender over the peroneal tendons, and had some swelling over the lateral ankle. Tr. at 848. He instructed Plaintiff to continue physical therapy and to transition out of the brace over the next two to three weeks. Tr. at 849.
On December 18, 2020, Plaintiff denied radiating pain to her LEs and rated her pain as an eight before medication and a five after medication. Tr. at 1182. She reported the lumbar radicular pain remained tolerable on her medication regimen. Tr. at 1183. She indicated she was scheduled for an SCS trial at the end of the month. Id. PA Brinkman refilled Morphine Sulfate ER 30 mg and Nucynta 50 mg. Id.
Dr. Hamilton inserted two contact leads for an SCS trial on December 30, 2020. Tr. at 1180-81.
On January 5, 2021, Plaintiff reported the SCS trial had provided greater than a 50-60% reduction in pain, improved her sleep, and allowed her to increase her activities. Tr. at 1177. PA Brinkman removed the SCS leads. Tr. at 1177-78.
On January 18, 2021, Plaintiff rated her pain as an eight before medication and a six after medication. Tr. at 1174. She reported she planned to follow up for permanent SCS implantation. Tr. at 1175. PA Brinkman refilled Morphine Sulfate ER 30 mg and Nucynta 50 mg. Id.
On January 20, 2021, Plaintiff reported doing fairly well overall and indicated her strength had improved. Tr. at 852. She described a little soreness with prolonged driving, but denied swelling and endorsed 75% improvement since surgery. Id. Dr. Huntington observed minimal swelling over the lateral ankle, minimal tenderness on the peroneal sheath, and minimal tenderness with active eversion. Tr. at 855. He instructed Plaintiff to continue with activities as tolerated and to follow up as needed. Id.
On February 16, 2021, Plaintiff reported improved balance, no falls since surgery, and having recovered from surgery. Tr. at 767. She indicated she had completed physical therapy, but continued to perform home exercises. Id. She said she had not participated in mental health therapy, but was feeling better and did not feel she currently needed it. Id. Dr. Malvern observed lumbosacral tenderness and decreased ROM of the lumbar spine and indicated Plaintiff walked with a very slight limp. Tr. at 769. She continued Losartan, Hydrochlorothiazide, Lyrica, and Cymbalta without adjustments. Id.
On February 17, 2021, Plaintiff reported lumbar spine pain, but indicated it was not radiating to her LEs. Tr. at 1171. She rated her pain as an eight before medication and a six after medication. Id. She indicated she was scheduled to undergo permanent placement of an SCS the following month. Tr. at 1172. PA Brinkman refilled Nucynta 50 mg and Morphine Sulfate ER 30 mg. Tr. at 1173.
Plaintiff presented to Robin Wilson, D.O. (“Dr. Wilson”), for a consultative exam on March 30, 2021. Tr. at 780-85. She indicated she had been diagnosed with fibromyalgia in 2017 that presented as morning stiffness and was associated with constant, sharp, eight-out-of-10 pain. Tr. at 780. She also endorsed numbness and tingling of her low back and legs. Id. She described constant pain, despite taking Lyrica and two other medications and having recently had an SCS implanted. Id. She indicated she had DDD that caused pain she rated as a six to seven in severity that was worsened by standing and walking. Id. She described bilateral sciatica that was worse at night, and rated it as a 10. Id. She said she had neuropathy in her feet she rated as a six. Id. She indicated her obesity made it difficult for her to do things and move around and contributed to her chronic pain. Id. She said her HIV diagnosis increased her depression. Id. She stated she had posttraumatic stress disorder (“PTSD”) as a result of a car accident and avoided driving in the rain when possible. Id.
Dr. Wilson observed Plaintiff to ambulate with a quad cane. Tr. at 781. She recorded Plaintiff's weight as 69 inches and her height as 330 pounds. Id. She noted lumbar paraspinal muscle tenderness to deep palpation. Tr. at 782. She indicated Plaintiff demonstrated normal ROM of the lumbar spine with pain. Id. She stated Plaintiff had crepitus in the bilateral knees and was barely able to perform a squat due to pain. Id. She otherwise noted normal findings on physical exam, including normal ROM throughout the cervical spine, lumbar spine, shoulders, elbows, wrists, knees, hips, and ankles, negative SLR, 5/5 bilateral grip strength, normal bilateral fine and gross manipulation, negative Phalen's sign, normal tandem, heel, and toe walk, 5/5 strength in the BUE and BLE, and +2 reflexes and peripheral pulses in the BUE and BLE. Tr. at 781-82, 784-85. Her diagnostic impressions were chronic pain from fibromyalgia in the lumbar area and legs, lumbar DDD, lumbar degenerative joint disease, sciatica, neuropathy in feet, and statuspost right peroneal surgery. Tr at 782. She noted Plaintiff had morbid obesity with a body mass index (“BMI”) of 48.7 kg/m2 that contributed to her chronic pain. Id. She further indicated there was no evidence that HIV positivity, controlled hypertension, or PTSD imposed functional limitations. Id.
PA Brinkman observed bilateral paraspinal muscle spasm and tenderness over the lumbosacral spine on April 14, 2021. Tr. at 1169. He prescribed Voltaren gel and refilled Nucynta 50 mg and Morphine Sulfate ER 30 mg. Tr. at 1170.
Plaintiff presented to Todd Morton, Ph.D. (“Dr. Morton”), for a consultative mental status exam on April 20, 2021. Tr. at 787-89. Dr. Morton observed Plaintiff to be adequately groomed, somewhat overweight, noticeably slow to get up and out of her chair, walk with a noticeable limp, and be fully alert and oriented. Tr. at 787. He stated Plaintiff's score of 28 on the Folstein mini mental status exam (“MMSE”) fell within the normal range of cognitive functioning. Id. He noted Plaintiff had intact long- and shortterm memory, clear and organized speech, average intellectual ability, and neutral-to-depressed mood with a normal range of affect. Id.
Plaintiff endorsed depressive symptoms that included poor sleep with frequent waking during the night, variable appetite, weight gain, irritability, crying all the time, and lack of energy and motivation. Id. She also reported feeling anxious in traffic, avoiding driving in the rain, avoiding public settings due to anxiety, infrequent panic attacks, mild hypervigilance, exaggerated startle response, frequent nightmares and intrusive thoughts related to prior traumatic experiences, and auditory hallucinations. Tr. at 787-88. She indicated that on a typical day, she brushed her teeth, showered, dressed, and was able to manage her own hygiene and self-care needs. Tr. at 788. She said she prepared a simple breakfast, worked jigsaw and word search puzzles, did minimal chores, washed dishes, slept a little bit, rested frequently, and rarely drove. Id. She stated she generally required someone to accompany her when she left the house. Id.
Dr. Morton wrote the following:
She would be able to understand and recall simple work instructions. It is believed she would be able to maintain her attention on a simple repetitive task for an extended period of time. Because of her depression she would have moderate impairment in her ability to maintain a pace of work that most employers require. Due to posttraumatic stress disorder and depression she is quite emotionally volatile and irritable and this would result in moderate impairment in her relationships with coworkers.Tr. at 789. Dr. Morton's diagnostic impressions were PTSD and major depressive disorder, moderate. Id.
Plaintiff returned to Dr. Huntington on May 18, 2021, for a painful hard lump on the lateral side of her foot. Tr. at 859. She described increased pain over the lateral column of her foot, mostly in the fifth metatarsal head, that was aggravated by standing and walking and improved by rest and elevation. Id. Dr. Huntington observed some tenderness of the fifth metatarsal plantar head, but no tenderness over the peroneal tendons. Tr. at 861. X-rays of Plaintiff's right foot revealed no ankle, hindfoot, or midfoot arthritic change, no deformity, and no other acute process. Tr. at 862. Dr. Huntington assessed left lateral column overload and metatarsalgia and recommended pressure-relief shoe inserts. Id.
On June 14, 2021, Plaintiff rated her pain as a seven before medication and a six after medication. Tr. at 1165. PA Brinkman noted tenderness to palpation over the lumbosacral spine and tenderness over the SCS implantation site. Tr. at 1166. He indicated Plaintiff had reported better pain levels since having her SCS reprogrammed within the prior two months. Id. He planned to taper down Plaintiff's Morphine Sulphate ER dose and decreased it from 30 mg to 15 mg every 12 hours. Id. He refilled Nucynta 50 mg every eight hours. Tr. at 1167.
Plaintiff denied radiating pain to her LEs on July 12, 2021. Tr. at 1162. She rated her pain as a seven prior to taking medication and a six after taking it. Id. She indicated she was taking Nucynta as needed and did not need a refill. Tr. at 1163. PA Brinkman noted bilateral paraspinal muscle spasms, lumbar tenderness, and normal gait. Id. He decreased Morphine Sulfate ER 15 mg from twice a day to once a day. Tr. at 1163-64.
On August 10, 2021, Plaintiff described numbness and tingling in her bilateral legs and rated her pain as a three prior to taking medication and a two after taking it. Tr at 1159. She complained that Lyrica was causing dizziness. Tr. at 1160. She indicated her SCS was working well overall, but that she required reprogramming for her LLE. Id. She continued to take Nucynta as needed and indicated she required no refill. Id. PA Brinkman observed tenderness to palpation over Plaintiff's lumbosacral spine and normal gait. Id. He instructed Plaintiff to taper off Lyrica, refilled Morphine Sulphate ER 15 mg once a day, and provided samples of Horizant 300 mg with instruction to take two pills in the evening with food. Tr. at 1160-61.
Plaintiff complained of chronic lumbar and right ankle pain and numbness and tingling in her bilateral legs on September 9, 2021. Tr. at 1156. She rated her pain as a three before medication and a two after medication. Id. She indicated Horizant had been fairly effective, and she was interested in continuing to take it. Tr. at 1157. PA Brinkman observed tenderness to palpation over Plaintiff's lumbosacral spine. Id. He prescribed Horizant and refilled Morphine Sulfate ER 15 mg once a day. Tr. at 1158.
On October 7, 2021, Plaintiff reported her SCS controlled her pain most of the time, but that she had periodic flare-ups that it did not control. Tr. at 1153. She rated her pain as a three before medication and a two after medication. Id. She indicated she was no longer taking Nucynta. Id. PA Brinkman observed bilateral paraspinal muscle spasms, lumbar tenderness, and normal gait. Tr. at 1154. He discontinued Morphine Sulphate ER 15 mg, prescribed Tramadol 50 mg twice a day, and refilled Horizant 300 mg, one tablet in the evening. Tr. at 1153, 1155.
On November 17, 2021, Plaintiff reported lumbar and right ankle pain, but indicated her SCS was working well. Tr. at 1150. She rated her pain as a three prior to taking medication and a two after taking it. Id. PA Brinkman refilled Tramadol and Horizant. Id.
Plaintiff presented to the ER at St. Francis Eastside with chest pain on November 23, 2021. Tr. at 1258. She described heavy pressure in her left upper epigastric quadrant that radiated into her chest. Tr. at 1259. Chest x-rays showed no acute cardiopulmonary process, and an electrocardiogram (“EKG”) was normal. Tr. at 1269-70. The attending physician advised Plaintiff against eating onions and tomatoes over the next week, recommended she use Gas-X, and told her to schedule a follow up appointment with her cardiologist. Tr. at 1263.
C. The Administrative Proceedings
1. The Administrative Hearing
a. Plaintiff's Testimony
At the hearing, Plaintiff testified she lived in a house with her husband and adult son and daughter, although her son was presently away at college. Tr. at 42-43. She said she was right-handed, 5'9” tall, and weighed 330 pounds. Tr. at 43-44. She stated she had gained 50 pounds over the prior couple of years due to limited mobility. Tr. at 43. She indicated she did “[v]ery little” driving because neuropathy made it difficult for her feel the pedals. Tr. at 44. She confirmed she had collected workers' compensation benefits in 2018. Id. She explained she last worked as a caregiver for her uncle for a year, prior to his entering a nursing home in 2019. Tr. at 45. She said she had looked for work after that, but her doctor had not wanted her to work because she had fallen several times. Id.
Plaintiff testified her PRW included work as an enrollment specialist for the Early Head Start program through Sunbelt Human Advancement Resources. Tr. at 46. She stated she had worked as an eligibility worker for the South Carolina Department of Social Services. Id. She indicated neither of those jobs required significant lifting. Id. She said she reported self-employment income for work performed as a case manager through Community Long Term Care. Id. She noted the job required she lift around 25 pounds, as she had to deliver groceries, clothing, and small furniture to clients' houses. Tr. at 46-47. She stated she previously worked as a case manager for Hope Health and as a bus driver for School District of Greenville County. Tr. at 47.
Plaintiff explained that neuropathy, constant pain related to fibromyalgia, and difficulty bending prevented her from working. Tr. at 4748. She stated she had bilateral pinched sciatic nerves, severe depression, and PTSD that was diagnosed in 2017 or 2018. Tr. at 48. She estimated she could stand for a minute to a minute-and-a-half without taking a break. Id. She indicated she could walk probably 10 steps. Id. She said she could barely lift a gallon of milk. Id. She stated she used a cane that Dr. Malvern had prescribed in 2018. Tr. at 49. She indicated someone had to help her put on her socks and shoes and wash her legs and feet due to her difficulty bending. Id. She said she would be unable to bend over and pick up her keys if she dropped them on the floor. Tr. at 56. She generally denied problems with her knees and shoulders, but said she had neuropathy and shooting pain throughout her arms, legs, and hands. Tr. at 49. She denied asthma, chronic obstructive pulmonary disease, emphysema, and other breathing problems. Tr. at 49-50. She said her weight affected her ability to move around. Tr. at 57. She indicated she had developed a callus on the bottom of her foot due to wearing a cast, and was scheduled to follow up with a podiatrist for it. Tr. at 58. She confirmed that she had been diagnosed with HIV years earlier, but said she took her medication as prescribed and denied complications. Tr. at 59.
Plaintiff testified her husband did 90% of the cooking for the household, although she sometimes prepared food in a crock pot. Tr. at 50. She said she required assistance in dressing and bathing. Id. She denied being able to do yard work. Id. She said she could put laundry in a top-loading washing machine, but could not bend to transfer it to or remove it from the dryer. Id. She stated she had to stop several times while performing cleaning tasks. Id. She indicated she could not go shopping. Id. She said her back and leg problems made it very hard for her to be around and participate in activities with others. Tr. at 51. She indicated she did not have a lot of friends. Id. She confirmed that she had a cell phone and a Facebook account. Id. She said she attended church “when [she] c[ould]” and did not usually go out to eat. Id.
Plaintiff denied current treatment for neuropathy, fibromyalgia, and spinal issues and testified she was only seeing PA Brinkman for pain management and Dr. Malvern for primary care. Id. She stated her medications were not really effective and indicated she had communicated this to her doctors. Tr. at 51-52. She indicated she had informed her doctor that Lyrica was causing memory problems and he had switched her to another medication that had not been as effective as Lyrica at relieving her nerve pain. Tr. at 52. She stated her blood pressure was adequately controlled with medication. Id. She said Tramadol caused her constipation. Id. She explained that she had tried to wean herself off Morphine because it caused her to “feel spaced out and out of it.” Id.
Plaintiff testified she spent her time listening to gospel music and reading books on discipleship, among other topics. Tr. at 53. She denied watching television. Id. She said her family members checked on her during the day. Id. She indicated she attended medical appointments when they were scheduled. Id.
Plaintiff confirmed that she had undergone right ankle surgery since her last hearing. Id. She said she had attempted to walk without an assistive device since her ankle surgery and had “fallen every time.” Tr. at 54. She stated she used a quad-point cane at doctors' appointments, but sometimes used a walker if she was going somewhere unfamiliar. Tr. at 54-55. She confirmed she had an SCS implanted the prior March. Tr. at 55. She said the SCS had decreased her pain, but had not taken it away completely. Id. She indicated most people had their SCSs programmed between settings three and five, but hers was regularly programmed on setting six, and she increased it to setting eight once every two to three days. Id. She generally denied problems with leg swelling, but stated it had been a problem on a prior blood pressure medication and occasionally occurred if she stood for too long. Tr. at 56.
Plaintiff testified her depression and PTSD had started after she was rear-ended while driving a school bus in 2017. Id. She said she experienced panic attacks when it rained and had to take medication prior to driving. Tr at 57. She stated she no longer enjoyed interacting with people. Id. She indicated she had difficulty concentrating and often lost focus when attempting to read a book. Tr. at 58.
The ALJ questioned Plaintiff about a medical record that reflected “a marijuana intoxication with delirium event.” Tr. at 59. Plaintiff testified that someone had given her some candy and she was unaware that it contained THC. Tr. at 59-60. She denied any other recreational drug use. Tr. at 60.
b. Vocational Expert Testimony
Vocational Expert (“VE”) Carmella Jennings reviewed the record and testified at the hearing. Tr. at 60-65. The VE categorized Plaintiff's PRW as a social services caseworker, Dictionary of Occupational Titles (“DOT”) No. 195.107-010, requiring sedentary exertion as generally performed and a specific vocational preparation (“SVP”) of 7, although the self-employment work was performed at the medium exertional level, and a school bus driver, DOT No. 913.463-010, requiring medium exertion and an SVP of 4. Tr. at 6162. The ALJ described a hypothetical individual of Plaintiff's vocational profile who could lift up to 10 pounds occasionally, stand or walk for approximately two hours in an eight-hour workday, and sit for approximately six hours in an eight-hour workday with normal breaks; never climb ladders, ropes, or scaffolds; occasionally climb ramps or stairs, stoop, crouch, kneel, and crawl; occasionally use moving machinery; and occasionally be exposed to unprotected heights. Tr. at 63. The VE testified that the hypothetical individual would be able to perform Plaintiff's PRW as a caseworker as generally performed and as actually performed, except for the self-employment job. Id.
As a second hypothetical question, the ALJ asked the VE to consider the individual described in the first question and to further assume the individual would be limited to frequent balancing and would require a hand-held assistive device to ambulate to the workstation, but not while performing work at the workstation. Id. He asked if the individual would be able to perform Plaintiff's PRW. Tr. at 63-64. The VE confirmed the individual would be able to perform Plaintiff's PRW as a caseworker and case manager as generally performed. Tr. at 64.
For a third hypothetical question, the ALJ asked the VE to consider the individual previously described and to note that the individual would be off-task for 20% or more of the workday or would be absent on three or more days per month. Id. He asked if the individual would be able to perform Plaintiff's PRW or other jobs. Id. The VE indicated the individual would not. Id.
Plaintiff's counsel asked the VE to consider the restrictions in the first two hypothetical questions and to further consider that the individual would be limited to simple, routine tasks. Tr. at 65. He asked it the individual would be able to perform Plaintiff's PRW. Id. The VE testified the individual would not. 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 June 30, 2024 (C8D).
2. The claimant has not engaged in substantial gainful activity since February 11, 2020, the amended alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: degenerative disc disease, dysfunction of major joints (ankle), fibromyalgia, neuropathy, and obesity. (20 CFR 404.1520(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526).
5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) with the following limitations: never climb ladders, ropes, or scaffolds; occasionally climb ramps and stairs; frequent balance with use of a handheld assistive device that is a cane (device is needed to ambulate to the work station, but is not needed at the work station); occasionally stoop, crouch, kneel, or crawl; and occasional use of moving machinery and occasional exposure to unprotected heights.
6. The claimant is capable of performing past relevant work as a case worker and case manager that both fall under the social services case worker DOT code. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity. (20 CFR 404.1565).
7. The claimant has not been under a disability, as defined in the Social Security Act, from February 11, 2020, through the date of this decision. (20 CFR 404.1520(f)).Tr. at 15-28.
II. Discussion
Plaintiff alleges the Commissioner erred for the following reasons:
1) the ALJ failed to evaluate fibromyalgia in accordance with SSR 12-2p; and
2) the ALJ did not properly evaluate Dr. Morton's medical opinion.
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. 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) (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. 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). 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; 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).
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); 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. Evaluation of Fibromyalgia
Plaintiff argues the ALJ did not evaluate fibromyalgia in accordance with SSR 12-2p. [ECF No. 12 at 27]. She asserts the ALJ erroneously discounted her statements as to her symptoms based on a lack of objective findings and failed to consider the waxing and waning of fibromyalgia-related symptoms. Id. at 27-29. She notes the ALJ repeatedly indicated her “statements were inconsistent with the ‘lack of significantly abnormal musculoskeletal and neurological exam findings on a consistent or extended basis.'” [ECF No. 15 at 2]. She claims the ALJ erred in relying on unquantified improvement in discounting her alleged symptoms. Id. at 3-4.
The Commissioner argues the ALJ properly considered Plaintiff's subjective reports in evaluating symptoms of fibromyalgia. [ECF No. 14 at 8]. She notes Plaintiff rarely mentioned fibromyalgia to her treating providers. Id. at 8-9. She asserts the ALJ specifically addressed pain in Plaintiff's back and legs, the two areas Dr. Wilson specified that her fibromyalgia pain presented, and considered her reports that medication and an SCS reduced such pain. Id. at 9. She points out the ALJ specifically mentioned he had applied SSR 12-2p in considering the effects of pain and fatigue associated with fibromyalgia. Id. She claims the ALJ relied on Plaintiff's activities and her representations to her providers that her pain was controlled with medication. Id. at 10-12.
Fibromyalgia is “a disorder of unknown cause characterized by chronic widespread soft-tissue pain particularly in the neck, shoulders, back, and hips, which is aggravated by use of the affected muscles and accompanied by weakness, fatigue, and sleep disturbances.” Arakas v. Commissioner, Social Security Administration, 983 F.3d 83, 91 (4th Cir. 2020) (internal quotation marks and citation omitted). The Social Security Administration (“SSA”) issued SSR 12-2p to provide instruction to adjudicators evaluating fibromyalgia claims. SSR 12-2p, 2012 WL 3104869 (2012). If fibromyalgia is established as a medically-determinable impairment, the ALJ must consider it in the sequential evaluation process and “evaluate the intensity and persistence of the person's pain or any other symptoms and determine the extent to which the symptoms limit the person's capacity for work.” Id. at *5-*6.
“Fibromyalgia ‘symptoms are entirely subjective' and ‘[t]here are no laboratory tests for the presence or severity of fibromyalgia.'” Arakas, 983 F.3d at 91 (quoting Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996). Physical examinations generally yield normal results, such as full ROM, no joint swelling, normal muscle strength, and normal neurological reactions. Id. at 96.
It is impermissible for an ALJ to “evaluate an individual's symptoms based solely on objective medical evidence unless that objective medical evidence supports a finding that the individual is disabled.” SSR 16-3p, 2016 WL 1119029. Thus, an ALJ “improperly increase[s]” the claimant's “burden of proof” if he requires subjective descriptions of symptoms to be verified by objective medical evidence. Lewis v. Berryhill, 858 F.3d 858, 866 (4th Cir. 2017). If the ALJ concludes the evidence supports a medically-determinable impairment of fibromyalgia, he cannot reject the claimant's allegations as to the functional limitations the impairment imposes simply because there are not enough clinical signs and laboratory findings to suggest the symptoms are as severe as she alleges.
If the evidence supports a finding that fibromyalgia could reasonably be expected to cause the symptoms the claimant alleges, she is “entitled to rely exclusively on subjective evidence to prove” her symptoms are “so continuous and/or so severe that [they] prevent [her] from working a full eight hour day.” See Hines v. Barnhart, 453 F.3d 559, 565 (4th Cir. 2006). “At this step, objective evidence is not required to find the claimant disabled.” Arakas, 983 F.3d at 95 (emphasis in original).
However, this does not mean the ALJ must accept the claimant at her word as to alleged fibromyalgia-related functional limitations. The ALJ should 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). Evidence relevant to this inquiry 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,” which include: (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 her 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. SSR 16-3p, 2017 WL 5180304, at *6; 20 C.F.R. § 404.1529(c)(3).
The Commissioner makes several arguments in addition to those found in the ALJ's explanation for the RFC assessment. In evaluating whether substantial evidence supports the ALJ's decision, the undersigned has limited review to the rationale provided by the ALJ to support his decision. See Robinson ex rel. M.R. v. Commissioner of Social Sec., C/A No. 0:07-3521-GRA, 2009 WL 708267, at *12 (D.S.C. Mar. 12, 2009) (“[T]he principles of agency law limit this Court's ability to affirm based on post hoc rationalizations by the Commissioner's lawyers. ‘[R]egardless [of] whether there is enough evidence in the record to support the ALJ's decision, principles of administrative law require the ALJ to rationally articulate the grounds for [his] decision and confine our review to the reasons supplied by the ALJ.'”) (quoting Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir. 2002)); see also Arakas, 983 F.3d at 109 (rejecting the Commissioner's effort to frame the ALJ's statement as an attempt to resolve an alleged inconsistency as “a meritless post-hoc justification”); Radford v. Colvin, 734 F.3d 288, 294 (4th Cir. 2013) (rejecting the Commissioner's attempt to justify the ALJ's denial of disability benefits as a post-hoc rationalization).
The ALJ found fibromyalgia to be among Plaintiff's severe impairments. Tr. at 15. He noted that since the prior ALJ's decision, “the submission of additional medical evidence supports new[] impairments of fibromyalgia and neuropathy.” Id. He determined Plaintiff's medically-determinable impairments, including fibromyalgia, “could reasonably be expected to cause the alleged symptoms,” but he considered her “statements concerning the intensity, persistence, and limiting effects” of her symptoms “not entirely consistent with the medical evidence and other evidence in the record.” Tr. at 20.
The ALJ wrote: “I have considered SSR 12-2p regarding fibromyalgia and it has been considered in conjunction with the claimant's overall functioning below, including the effects of pain and fatigue that are often associated with fibromyalgia.” Tr. at 21. “[A]bsent evidence to the contrary,” the Fourth Circuit has directed district courts to accept an ALJ's statement that he has considered a matter. 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.”)).
In explaining the RFC assessment, the ALJ acknowledged “some abnormal imaging and diagnostic studies,” but noted “[s]uch findings alone, however, are not sufficient to support the claimant's allegations, especially considering the generally intact musculoskeletal and neurological functioning documented in the medical record.” Id. He wrote:
There was a lack of significantly abnormal musculoskeletal and neurological exam findings on a consistent or extended basis, including a lack of significantly abnormal range of motion, gait, strength, and sensation findings on a consistent or extended basis. (e.g., C4F/7; C5F/24, 47-48; C9F/6; C13F/7; C14F/3; C18F/3; C20F; C21F; C22F/71; C29F/107, 116, 122, 128, 131; C30F/34).Id. He further discussed generally normal observations during exams. Tr. at 22.
It would have been inappropriate for the ALJ to discredit Plaintiff's statements as to the intensity, persistence, and limiting effects of her impairments based on generally normal clinical exam and laboratory findings if fibromyalgia were her only impairment. However, the record supported, and the ALJ found, Plaintiff had additional severe and non-severe impairments often characterized by abnormal clinical exam and laboratory findings, including DDD, dysfunction of major joint (ankle), and carpal tunnel syndrome. Because the ALJ was not considering fibromyalgia in isolation, he did not err in considering the clinical exam and laboratory findings as one of multiple factors in evaluating Plaintiff's statements as to her other impairments.
It also would have been improper for the ALJ to rely exclusively on an absence of clinical exam and laboratory findings in rejecting Plaintiff's statements, but he did not rely on the objective evidence alone. He indicated he had considered “the lack of significantly abnormal exam findings,” as well as a “lack of notations of distress during the relevant period, the course of treatment with some reported improvement, and the claimant's activities.” Tr. at 21.
The ALJ wrote:
[D]espite the claimant's complaints of significant pain, she was generally assessed to be in no distress. (e.g., C5F/47; C6F/10; C9F/6; C14F/3; C16F/9; C22F/71; C29F/131; C30F/34). This is not consistent with her allegations, as one would expect consistent outward signs of pain if she were experiencing the level of pain alleged.Tr. at 23. The treatment records support the ALJ's assessment, as they consistently describe Plaintiff as being in no acute or apparent distress. See, e.g., Tr. at 492, 563, 714, 1184, 1198, 1204.
The ALJ discussed the history of Plaintiff's fibromyalgia treatment, noting:
[T]he claimant's course of treatment and response to treatment during the relevant period supports some limitations, but not the full extent of the allegations. She usually was just continued on medication for her neuropathy and fibromyalgia with a notation that the neurologist did not find a primary neurological problem and her neurological symptoms come from her back (e.g., C5F/25; C11F/3; C18F/3).Tr. at 23. The ALJ's impression is confirmed by Dr. Malvern's records, which document no changes over the relevant period to the medications she prescribed, none of which were specifically prescribed for fibromyalgia. See Tr. at 564, 571, 658, 736-37, 769. Although PA Brinkman adjusted Plaintiff's medications, he did not indicate he was prescribing medication for fibromyalgia. See, e.g., Tr. at 1151, 1160-61, 1170, 1187, 1195, 1201 (noting he was refilling medication for “low back pain” and “radiculopathy, lumbosacral region”).
The ALJ discussed Plaintiff's statements regarding her pain. Tr. at 23. He noted Plaintiff “reported to her pain management provider in February 2020 that her medications provided adequate pain control. (C29F/164).” Id. He pointed out Plaintiff reported 50-60% improvement in her pain level and improved sleep during the SCS trial. Id. He referenced more recent records in which Plaintiff had “reported 3/10 pain before medication and 2/10 pain after medication. (C29F/106, 109, 112, 115)” from August to November 2021. Id. Contrary to Plaintiff's argument, the ALJ did not rely on “unquantified improvement,” but, instead, cited her recent reports of numerical pain levels consistent with mild pain in concluding the allegations in her testimony were inconsistent with her reports in the record.
He also considered Plaintiff's activities to be inconsistent with her allegations, noting:
It is also worth discussing the claimant's activities that are documented in the record, as some of those are indicative of an individual who is not as limited as the claimant alleges. In June 2020, the claimant stated that she walked slowly about 3 times a week and was doing some resistance and light weight exercises. (C5F/31). She did drive during the relevant period. (e.g., C20F; C21F; C22F/55, 62). For example, she reported in December 2020 that she was driving again following her ankle surgery. (C22F/55). She drove to the April 2021 mental consultative exam. (C21F).Tr. at 24. Although Plaintiff's abilities to walk slowly three times a week, perform resistance and light weight exercises, and drive do not necessary demonstrate an ability to perform work activity on a regular and continuing basis, they reflect greater functional abilities than Plaintiff reported in her testimony, as she stated she was able to stand for no more than a minute- and-a-half, could walk probably 10 steps, and did very little driving. Tr. at 44, 48.
The ALJ discussed other perceived inconsistencies between Plaintiff's statements and her representations in the record, noting:
While the claimant alleges side effects from medication, including drowsiness and fatigue, she typically did not report side effects to medical providers. (e.g., C5F/23, 31; C9F/6; C18F/1; C29F/131, 163). In addition, regardless of the exact cause, there was a lack of notations of the claimant appearing tired or falling asleep at exams. (e.g., C5F/24; C6F/6; C9F/6; C18F/2; C20F; C21F; C22F/71; C29F/131; C30F/34).Id. The ALJ referenced specific records that supported his finding and suggested fibromyalgia-related fatigue and side effects from medications did not impose significant functional limitations.
The ALJ cited additional inconsistency between evidence in the treatment records and Plaintiff's testimony as to her ambulatory ability. He explained:
The claimant alleges she needs an assistive device and alleges that she uses a cane and she sometimes uses a walker. The record does not support the use of a walker and does not support that the claimant needs a cane to stand at a workstation. The claimant was noted to be walking unassisted at an exam around the alleged onset date (C4F/4). The claimant used a rolling walker after her right ankle surgery. (C11F/2). However, at an exam about two months after her surgery, she had a normal gait. (C14F/3). At another exam around that time, she was not using a rolling walker or cane. (C17F/8). She had a normal gait at a January 2021 pain management visit. (C29F/131). She ambulated with a quad cane during the March 2021 physical consultative exam, but she was able to tandem walk, heel walk,
and toe walk. (C20F). There was a lack of mention of a cane or walker being used during a May 2021 orthopedic exam. (C22F/71).Tr. at 22-23.
The ALJ found the record was “inconsistent with allegations of the claimant needing to change positions, not being able to sit, stand, or walk for more than a couple minutes at a time, and not being able to lift anything.” Tr. at 24. He further relied on the state agency medical consultants' opinions, noting “subsequent evidence is generally consistent with their findings, including the lack of significantly abnormal exam findings, lack of notations of distress, and some reports of improvement with treatment. (e.g., C29F/106, 107, 109, 112, 115, 116, 122, 128, 131; C30F/34).” Tr. at 25.
The ALJ's decision reflects he evaluated fibromyalgia in accordance with SSR 12-2p and did not rely on the objective evidence alone in evaluating Plaintiff's statements as to the intensity, persistence, and limiting effects of fibromyalgia. He imposed functional limitations based on fibromyalgia and Plaintiff's other impairments, but pointed to inconsistencies between Plaintiff's statements and the record to support his decision not to credit all of her allegations in assessing the RFC. Therefore, the undersigned recommends the court find substantial evidence supports the ALJ's evaluation of fibromyalgia in accordance with SSR 12-2p.
2. Dr. Morton's Opinion
Plaintiff argues the ALJ improperly evaluated and failed to provide logical and legally-sufficient reasons for discounting portions of Dr. Morton's opinion. [ECF No. 12 at 30-35]. She maintains Dr. Morton's opinion refutes the ALJ's finding that she could perform her PRW. Id. at 35. She asserts the Commissioner relies on improper post hoc rationale to explain the ALJ's rejection of her statements based on her ADLs. [ECF No. 15 at 9].
The Commissioner argues the ALJ properly evaluated Dr. Morton's opinion. [ECF No. 14 at 13]. She maintains the ALJ considered Plaintiff's effective treatment and demonstrated activities and the prior administrative medical findings in concluding that the record did not support the mental limitations Dr. Morton indicated. Id. at 16.
Because Plaintiff's current application for benefits was filed after March 27, 2017, the framework for evaluation of medical opinions required the ALJ to evaluate all the medical opinions of record based on their persuasiveness. 20 C.F.R. § 404.1520c. Although the ALJ should consider the supportability of a medical opinion in the source's record, the consistency of the opinion with the other evidence, the relationship between the medical source and the claimant, the specialization of the medical source, and any other factors that tend to support or contradict the medical opinion, he is only required to explicitly discuss the supportability and consistency of each medical source's opinion, as these factors are considered most important in assessing the opinion's persuasiveness. 20 C.F.R. § 404.1520c(a), (b)(2). The regulations direct ALJs evaluating the supportability factor to consider medical opinions more persuasive based on “the more relevant . . . objective medical evidence and supporting explanations” the medical source provides. 20 C.F.R. § 404.1520c(c)(1). They guide ALJs in assessing the consistency factor to consider an opinion more persuasive if it is consistent “with the evidence from other medical sources and nonmedical sources in the claim.” 20 C.F.R. § 404.1520c(c)(2).
While an ALJ may exercise discretion in evaluating the persuasiveness of the medical opinions, his conclusions as to the supportability and consistency of the opinions must be supported by substantial evidence. If the ALJ materially errs in evaluating these factors, it may be necessary for the court to remand the case. See Flattery v. Commissioner of Social Security Administration, C/A No. 9:20-2600-RBH-MHC, 2021 WL 5181567, at *8 (D.S.C. Oct. 21, 2021) (concluding substantial evidence did not support the ALJ's evaluation of the supportability factor where he ignored the claimant's continuing treatment with the medical provider and portions of the provider's treatment notes), adopted by 2021 WL 5180236 (Nov. 8, 2021); Joseph M. v. Kijakazi, C/A No. 1:20-3664-DCC-SVH, 2021 WL 3868122, at *13 (D.S.C. Aug. 19, 2021) (finding the ALJ erred in assessing a medical opinion pursuant to 20 C.F.R. § 404.1520c and § 416.920c because he misconstrued the date the plaintiff last saw the medical provider, neglected the continuing treatment relationship, and erroneously claimed the last treatment visit was prior to the plaintiff's alleged onset date), adopted by 2021 WL 3860638 (Aug. 30, 2021).
The ALJ addressed Dr. Morton's opinion at step two of the evaluation process, writing:
Dr. Morton, the mental consultative examiner, opined that the claimant is able to understand and recall simple work instructions and maintain her attention on simple repetitive tasks. (C21F). He opined that because of the claimant's depression, she would have a moderate impairment in her ability to maintain a pace of work that most employers require. (Id.). He also opined that due to PTSD and depression, she is quite emotionally volatile and irritable and this would result in moderate impairment in her relationships with coworkers. (Id.). This opinion is not persuasive, as it is too restrictive. He provided some, but not much explanation to support the opinion. (Id.). In addition, his own consultative exam findings during this one-time consultative exam do not support the opinion, including the score of 28 on the mini mental status exam, which is within the normal range. (Id.). Further, other evidence in the record is inconsistent with this opinion. For example, her mental health treatment has consisted of medications with reports of doing better with a lack of psychiatric hospitalizations and even a lack of counseling. (e.g., C5F/25; C11F/3; C18F/3). The claimant also has generally had normal mental exam findings in treatment notes and at the physical consultative exam. (e.g., C5F/24; C6F/9; C16F/9; C18F/3; C20F).Tr. at 17-18.
In accordance with 20 C.F.R. § 404.1520c, the ALJ evaluated the persuasiveness of Dr. Morton's opinion and specifically found the supportability and consistency factors weighed against a finding that it was persuasive. Contrary to Plaintiff's argument, it was not inappropriate for the ALJ to note Dr. Morton “provided some, but not much explanation to support the opinion,” as 20 C.F.R. § 404.1520c(c)(1) specifies: “The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) . . . the more persuasive the medical opinion(s) . . . will be.” The ALJ explained his evaluation of the supportability factor by referencing a score of 28 on the MMSE, which was indicative of normal cognitive functioning. Tr. at 18. The undersigned agrees with Plaintiff that her normal cognitive functioning alone would not provide an adequate basis for finding Dr. Morton's opinion was not supported by the record. However, the ALJ considered more than the MMSE score in evaluating the supportability of Dr. Morton's opinion.
The ALJ had previously referenced Dr. Morton's findings in explaining his consideration of the broad areas of mental functioning. See Tr. at 16-17 (citing Exhibit 21F (Dr. Morton's report)). He considered Plaintiff to have mild limitation in understanding, remembering, and applying information based on evidence within the record, including Dr. Morton's report, that “[s]he usually did not have abnormal memory, thought content, thought process, fund of information, insight, and judgment findings” and was “able to do some activities that are indicative of relatively intact mental functioning in this area, including doing some chores, doing jigsaw puzzles and word search puzzles, shopping, and driving.” Tr. at 16. In finding Plaintiff had no limitation in interacting with others, the ALJ referenced Dr. Morton's report in pointing out “a lack of notations” that Plaintiff “ha[]d problems communicating with or getting along with medical providers” and her ability to cooperate with a consultative examiner she had just met. Id. He explained his assessment of mild limitation in concentrating, persisting, or maintaining pace by referencing Plaintiff's report to Dr. Morton that she “like[d] to do jigsaw puzzles and word search puzzles, which would not be expected of someone with substantial deficits in this area.” Id. He indicated Plaintiff's indication to Dr. Morton that she drove to the exam showed her ability to “concentrate on adhering to the rules of the road.” Id. He recognized that Dr. Morton and other providers “did not consistently note that she had problems paying attention and/or needed redirection.” Id. He elaborated: “In fact, the mental consultative examiner did not indicate that the claimant had difficulty paying attention during the interview or had concentration difficulties during mini-mental status exam.” Id. The ALJ found Plaintiff had no limitation in adapting or managing oneself, referencing Dr. Morton's record, among others, that showed Plaintiff to be “able to understand and participate in exams,” to not appear fatigued, to “lack signs of abnormal grooming or hygiene, and to perform activities indicative of “relatively intact mental functioning.” Tr. at 17. Reviewed in its entirety, the ALJ's decision reflects a thorough and rational basis for his conclusion that Dr. Morton's opinion was not supported in his exam record.
The ALJ also provided a thorough and rational explanation for his conclusion that Dr. Morton's opinion was not consistent with the other evidence of record. He referenced normal mental status exam findings from other providers, Plaintiff's reports of effective psychological symptom control with medications, her indications that she was doing well and did not require additional counseling, and a lack of psychiatric hospitalizations. Tr. at 18 (referencing C5F/24, 25; C6F/9; C11F/3; C16F/9; C18F/3; C20F) (corresponding to Tr. at 563 (“judgment and insight good, thought content without suicidal ideation, delusions”), 564 (“Recurrent depression” indicated as “BETTER. CONTINUE CYMBALTA. FOLLOWS WITH SUMMER.”), 658 (“Recurrent depression” indicated as “BETTER. CONTINUE CYMBALTA. SHE IS FOLLOWING WITH MARCO.”), 743 (“good eye contact, alert, oriented, mood/affect full range, judgment and insight good”), 769 (“judgment and insight good, thought content without suicidal ideation, delusions”), 782 (“Claimant was alert and oriented x3. No change in mood, affect, or behavior throughout the examination. She showed good judgment and insight. She was cooperative and pleasant.”; “Posttraumatic stress disorder, treated with unknown medication, currently avoiding trigger. No evidence of functional limitations on examination.”)).
In light of the foregoing, the undersigned recommends the court find substantial evidence supports the ALJ's evaluation of the persuasiveness of Dr. Morton's opinion in accordance with 20 C.F.R. § 404.1520c.
III. Conclusion and Recommendation
The court's function is not to substitute its own judgment for that of the Commissioner, but to determine whether her decision is supported as a matter of fact and law. Based on the foregoing, the undersigned recommends the Commissioner's decision be affirmed.
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).