Opinion
C/A 1:24-cv-959-JDA-SVH
07-25-2024
Timothy M.,[1] Plaintiff, v. Martin O'Malley, 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 § i383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying his 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 he applied the proper legal standards. For the reasons that follow, the undersigned recommends the Commissioner's decision be reversed and remanded for further proceedings as set forth herein.
I. Relevant Background
A. Procedural History
On January 12, 2022, Plaintiff filed an application for DIB in which he alleged his disability began on April 30, 2021. Tr. at 63, 182-83. His application was denied initially and upon reconsideration. Tr. at 73-77, 8488. On August 17, 2023, Plaintiff had a hearing by telephone before Administrative Law Judge (“ALJ”) Jerry Peace. Tr. at 31-55 (Hr'g Tr.). The ALJ issued an unfavorable decision on October 2, 2023, finding Plaintiff was not disabled within the meaning of the Act. Tr. at 14-30. 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 February 26, 2024. [ECF No. 1].
B. Plaintiff's Background and Medical History
1. Background
Plaintiff was 46 years old at the time of the hearing. Tr. at 38. He completed ninth grade. Tr. at 38. His past relevant work (“PRW”) was as a construction worker and an industrial truck operator. Tr. at 51. He alleges he has been unable to work since April 30, 2021. Tr. at 182.
2. Medical History
Plaintiff sought treatment from physician assistant Amanda Broome (“PA Broome”) for neck pain in 2019. Tr. at 267-82. PA Broome noted Plaintiff had previously seen Dr. Monroe, who wanted him to undergo cervical fusion. Tr. at 267. She indicated Plaintiff had declined the procedure because Dr. Monroe had estimated only a 50% chance of improvement. Id. She stated Plaintiff continued to work full-time, despite numbness in his bilateral hands, irritation in his arms and shoulders, and occasional inability to sleep due to irritation in his neck and shoulder. Id. She further noted Plaintiff had been battling kidney stones since the prior visit. Id. She observed tenderness to palpation (“TTP”) over the lumbosacral spine and bilateral hips and decreased range of motion (“ROM”) of the cervical spine. Id. She assessed panic attack, neck pain, kidney stone, and degenerative disc disease (“DDD”) and indicated the encounter was for therapeutic drug level monitoring. Id. She refilled Valium 2 mg for panic attacks and Hydrocodone-Acetaminophen 10-325 mg for neck pain. Tr. at 267-68.
On March 24, 2021, Plaintiff presented with back pain and indicated he had visited the emergency room (“ER”) earlier in the day and had received two Oxycodone, a patch, and a steroid. Tr. at 346. He indicated the medication had helped briefly, but he continued to experience pain in his legs that made it difficult for him to walk. Id. PA Broome observed severe pain, bent-over gait upon walking, left leg weakness, inability to sit still, frequent changes of position, bilateral paraspinal muscle spasms, TTP over the lumbosacral spine and at ¶ 5-S1, and increased pain upon standing and walking. Id. She ordered venous Doppler imaging of the left leg and a Nubain injection. Tr. at 346-47.
Plaintiff presented to Alfred R. Moss, M.D. (“Dr. Moss”), with complaints of back pain and inability to walk on March 29, 2021. Tr. at 322. He described balance difficulty, gait abnormality, unsteadiness, loss of strength in the lower extremities, loss of use of the left leg, chronic low back pain, and a pain level of 10 on a 10-point scale. Id. Dr. Moss observed Plaintiff to demonstrate gait disturbance such that he was bent over at the waist when walking, left leg weakness, inability to sit still, frequent changes of position due to pain, bilateral paraspinal muscle spasm, TTP over the lumbosacral spine and around the L5-S1 area, posturing to alleviate pain, and sensation disturbance of the left foot. Id. He assessed herniated lumbar disc without myelopathy, lumbar spondylosis without myelopathy, lumbar radiculopathy, and bilateral sciatica. Tr. at 322-23. He referred Plaintiff to neurosurgeon Phillip Esce, M.D. (“Dr. Esce”), and administered bilateral sacroiliac (“SI”) joint injections. Tr. at 323.
On April 21, 2021, Plaintiff reported burning pain from his knee to his foot. Tr. at 341. PA Broome refilled Hydrocodone-Acetaminophen 10-325 mg and Valium 5 mg. Id.
Plaintiff presented to Donald Charles Shields, II, M.D. (“Dr. Shields”), for evaluation on April 26, 2021. Tr. at 416. He described shooting pain throughout his left lower extremity (“LLE”) that had begun three months prior. Id. He indicated he had participated in physical therapy with no benefit. Id. Dr. Shields observed antalgic gait, 5-/5 motor strength to left dorsiflexion (“DF”) and plantar flexion (“PF”), 4/5 left extensor hallucis longus (“EHL”) strength, abnormal sensation to light touch and pinprick in the left L5/S1 dermatomal distributions, and positive straight-leg raise (“SLR”) on the left. Tr. at 418. He assessed left L5 radiculopathy and prolapsed lumbar intervertebral disc. Tr. at 419. He recommended minimally-invasive L4-5 microdiscectomy, and Plaintiff opted to proceed with surgery. Id.
On May 14, 2021, Dr. Shields performed minimally-invasive L4-5 hemilaminectomy with microdiscectomy for treatment of Plaintiff's left L5 radiculopathy with L4-5 disc bulge. Tr. at 309-10.
Plaintiff returned to PA Broome for medication refills on May 20, 2021. Tr. at 339. He reported having receiving Oxycodone following his surgery. Id. PA Broome refilled Lotrel and Valium. Id.
Plaintiff sought medication refills on May 28, 2021. Tr. at 337. PA Broome observed paraspinal muscle spasm on the left, no sensation to the left calf, numbness in the left foot, and gait difficulty. Id. She stopped Hydrocodone-Acetaminophen 10-325 mg and prescribed Percocet 10-325 mg every six hours. Id.
Plaintiff described burning pain distal to his knee and left foot pressure when wearing a shoe on June 7, 2021. Tr. at 410. He endorsed back pain, headaches, numbness, tingling, poor balance, and anxiety. Tr. at 411. Dr. Moss noted normal findings, aside from gait favoring the LLE and 5-/5 left EHL and PF strength. Tr. at 412. He assessed monoplegia of the lower limb affecting the left side. Id. He ordered physical therapy for strengthening and instructed Plaintiff to restart Lyrica. Tr. at 412-13.
PA Broome refilled Lotrel for hypertension and Percocet 10-325 mg for lumbar spondylosis and prescribed Omeprazole for gastroesophageal reflux disease (“GERD”) on June 21, 2021. Tr. at 335.
On July 19, 2021, Plaintiff reported the burning pain distal to his knee had improved, but he continued to have pain over the top of his left foot, particularly when standing and walking. Tr. at 406. He rated his pain as a five. Id. He endorsed back pain, anxiety, headaches, numbness, tingling, and poor balance. Tr. at 407. Dr. Shields recorded normal findings on exam, except for 5-/5 EHL strength. Tr. at 408. He recommended outpatient physical therapy and indicated Plaintiff could return to light duty with no lifting over 20 pounds on August 2, 2021, and full duty on November 15, 2021. Id.
Plaintiff presented for medication refills on July 30, 2021. Tr. at 333. PA Broome noted paraspinal muscle spasm on the left side of Plaintiff's back, no sensation to the left calf, numbness in the right foot, and gait difficulty. Id. She stopped Percocet 10-325 mg and refilled Hydrocodone-Acetaminophen 10-325 mg. Id. She again refilled Hydrocodone-Acetaminophen 10-325 mg and Valium 5 mg on August 31, 2021. Tr. at 331.
Plaintiff complained of pain in his neck and left ear when he presented to PA Broome for medication refills on September 30, 2021. Tr. at 329. He reported problems on his right side following an incident in which he developed numbness in his foot, heard a buzzing sensation, stumbled back, and fell to his knees. Id. PA Broome observed Plaintiff to be posturing to the right due to pain into the left leg upon sitting straight onto his hips. Id. She also noted weakness to the medial aspect of the LLE, drawing in of the left foot, curvature of the spine with ambulation, slow and weak gait on the left, decreased strength in the LLE, diminished sensation to the left knee, and numbness from the left calf to the left foot. Id. PA Broome refilled Hydrocodone-Acetaminophen 10-325 mg for back pain, prescribed Nystatin for a yeast infection, and referred Plaintiff for magnetic resonance imaging (“MRI”) of the lumbar spine. Tr. at 330.
On October 1, 2021, an MRI of Plaintiff's lumbar spine showed postsurgical changes, left L4-5 facet marrow edema with intra-facet and perifacet signal changes, and a L4 pars fracture with fracture edema. Tr. at 31112.
PA Broome completed an attending physician's statement for long-term disability benefits on October 12, 2021. Tr. at 313-14. She noted Plaintiff's primary diagnosis was post-laminectomy syndrome and his secondary diagnosis was lumbar radiculopathy, as characterized by back pain, history of back surgery, and numbness and tingling from his back down his legs. Tr. at 313. She indicated she had recommended Plaintiff stop work due to pain and surgery. Id. She stated she examined Plaintiff monthly and had last examined him on September 30, 2021. Id. She noted Plaintiff's medications included Hydrocodone 10-325 mg, ibuprofen 800 mg, and Tizanidine 4 mg. Id. She opined that Plaintiff could do no lifting, walk and stand for one hour at a time and for one hour in an eight-hour day, sit for one hour at a time and for two hours in an eight-hour day, never bend/stoop or reach, and occasionally grasp. Tr. at 314. She stated Plaintiff had anxiety. Id. She indicated Plaintiff's condition had not changed since the onset of symptoms, was unable to determine when his condition would change, and stated he could not work until he was cleared by a specialist. Id.
Plaintiff returned to Dr. Moss for medication refills on October 28, 2021. Tr. at 326. Dr. Moss observed posturing, as Plaintiff was experiencing pain into his hips and left leg that was worse at the knee and foot with sitting straight. Id. He further noted sensation disturbance to the left foot with weakness to the medial aspect of the LLE and drawing in of the foot, curvature of the spine with ambulation, slow and weak gait on the left, decreased strength to the LLE, diminished sensation in the LLE to the knee, and numbness from the left calf to foot. Id. He assessed failed lumbar back syndrome, DDD, and panic attack. Id. He refilled HydrocodoneAcetaminophen 10-325 mg every six hours and Valium 5 mg as needed and referred Plaintiff to orthopedic surgery. Tr. at 327.
Plaintiff returned to Dr. Shields on November 1, 2021. Tr. at 399. He reported improved burning pain distal to the knee, but continued pain over the top of the left foot, particularly upon standing and walking. Id. He described left hip and leg and bilateral back pain he rated as a seven. Id. He reported recently falling down the stairs. Tr. at 402. Dr. Moss noted normal motor strength, except 4-/5 strength in the left EHL. Tr. at 401. He reviewed the recent MRI and explained it correlated with Plaintiff's left EHL weakness. Tr. at 402. He referred Plaintiff to pain management for left L4-5 and L5-S1 epidural steroid injections (“ESIs”) and indicated that he would consider additional surgery if they were ineffective. Id.
Plaintiff reported neck and left ear pain on November 29, 2021. Tr. at 437. Dr. Moss observed Plaintiff to be posturing to the right and to have sensation disturbance, gait abnormality, and diminished strength in the LLE. Id. He refilled Valium 5 mg and Hydrocodone-Acetaminophen 10-325 mg. Id.
On December 3, 2021, Plaintiff underwent left L4-5 and L5-S1 transforaminal ESIs. Tr. at 398.
On December 20, 2021, Plaintiff reported worsening symptoms and no benefit from the ESIs. Tr. at 392. He described feeling “lightning” through his LLE upon lifting his 11-month-old granddaughter the prior week and indicated he had decreased motor strength. Id. Dr. Moss recorded positive SLR on the left, 4/5 left DF, and 2/5 left EHL strength. Tr. at 394. He assessed re-herniated left L4-5 disc and offered to redo the left L4-5 hemilaminectomy and microdiscectomy. Tr. at 394-95. Plaintiff opted to proceed with surgery. Tr. at 395.
On December 29, 2021, Dr. Moss noted posturing of Plaintiff's back, sensation disturbance in the left foot, abnormal gait, and decreased strength in the LLE. Tr. at 435. He refilled ibuprofen 800 mg, Hydrodocone- Acetaminophen 10-325 mg, Lotrel 10-20 mg, Omeprazole 40 mg, and Valium 5 mg. Tr. at 435-36.
On January 26, 2022, Dr. Moss observed Plaintiff to be posturing to the right and to demonstrate pain with sitting straight onto his hips that radiated into the left leg and was worse at the knee and foot, weakness to the medial aspect of the LLE, drawing of the left foot, abnormal curvature of the spine, slow, weak ambulation on the left, decreased LLE strength, diminished sensation to the left knee, and numbness in the left calf and foot. Tr. at 433. He refilled Hydrocodone-Acetaminophen 10-325 mg and Valium 5 mg. Id.
On January 27, 2022, Dr. Shields performed redo left L4-5 hemilaminectomy and microdiscectomy. Tr. at 362-63.
Plaintiff followed up with Dr. Shields on February 14, 2022. Tr. at 382. He rated his pain as a five and reported stronger left foot DF, but burning and tingling over the left leg upon ambulation. Id. He endorsed back pain, headaches, numbness, tingling, poor balance, and anxiety. Tr. at 383-84. Dr. Shields noted 5/5 strength in the upper and lower extremities, except for 5-/5 left DF and 4-/5 left EHL strength, 2+/4 deep tendon reflexes (“DTRs”), normal sensation to light touch and pinprick, and normal gait. Tr. at 385. He prescribed Gabapentin 300 mg in the morning and 600 mg in the evening and referred Plaintiff to physical therapy for LLE weakness. Id.
On March 17, 2022, Plaintiff reported muscle aches, joint pain, sciatica, neck pain, and right shoulder and arm pain and tingling/numbness. Tr. at 432. Barbara C. Ray, M.D. (“Dr. Ray”), observed Plaintiff to appear uncomfortable due to pain and noted bilateral paraspinal muscle spasms, TTP over the lumbosacral spine, cervical tenderness, muscle spasms in the trapezius and neck muscles, tenderness over the acromioclavicular (“AC”) joint, subacromial region, and bicipital groove of the right shoulder, and painful ROM of the right shoulder with decreased posterior extension and rotation. Tr. at 431. She refilled ibuprofen 800 mg, Lotrel 10-20 mg, Omeprazole 40 mg, and Hydrocodone-Acetaminophen 10-325 mg. Id.
Plaintiff presented for medication refills on April 14, 2022. Tr. at 429. He reported muscle aches, painful joints, sciatica, neck pain radiating into the right shoulder and arm due to trauma, low back pain, and right arm numbness and tingling. Tr. at 430. Dr. Ray observed Plaintiff to demonstrate uncomfortable appearance due to pain, bilateral paraspinal muscle spasms, TTP over the lumbosacral spine, shoulder tenderness over the AC joint, subacromial region, and bicipital groove, painful ROM with decreased posterior extension and rotation of the right shoulder, tenderness in the cervical spine, and muscle spasm in the trapezius and neck muscles. Id. She refilled Hydrocodone-Acetaminophen 10-325 mg and Valium 5 mg. Id.
Plaintiff endorsed pain and numbness/tingling in his right shoulder and arm, sciatica, and pain in his neck and low back on May 12, 2022. Tr. at 470. Dr. Moss noted TTP and bilateral paraspinal muscle spasms in the lumbosacral spine, cervical tenderness, muscle spasms in the trapezius and neck muscles, shoulder tenderness in the AC joint, subacromial region, and bicipital groove, and painful ROM of the right shoulder with decreased posterior extension and rotation. Tr. at 469. He refilled HydrocodoneAcetaminophen 10-325 mg and Valium 5 mg. Tr. at 469-70.
On May 16, 2022, Plaintiff reported he had recently been involved in a physical altercation and had fallen backwards onto a concrete surface. Tr. at 484. He described increased pain in his left hip and shooting pain to his left foot and rated his pain as an eight. Id. Dr. Shields noted mostly normal findings on exam, aside from 5-/5 left DF and 4-/5 left EHL strength. Tr. at 487. He instructed Plaintiff to restart Gabapentin, discussed spine precautions, and recommended an L4-5 ESI. Id. He indicated Plaintiff planned to consider the ESI because he was “working on new insurance for preauthorization.” Id.
Plaintiff reported chronic upper and lower back pain on June 20, 2022. Tr. at 503. Dr. Moss noted Plaintiff appeared uncomfortable due to pain. Id. He observed muscle spasms over the bilateral paraspinal areas, trapezius, and neck muscles, TTP over the lumbosacral and cervical spine and right shoulder, and painful, decreased ROM of the right shoulder to posterior extension and rotation. Id. He refilled Hydrocodone-Acetaminophen 10-325 mg and Valium 5 mg. Tr. at 504.
On July 21, 2022, Plaintiff endorsed muscle aches, shoulder pain, joint pain, sciatica, neck pain radiating into his shoulder, trauma to the right shoulder and arm, low back pain, and tingling/numbness in the right arm and shoulder. Tr. at 502. Dr. Moss noted bilateral paraspinal muscle spasms, TTP over the lumbosacral spine, right shoulder, and cervical spine, muscle spasms in the trapezius and neck muscles, and decreased ROM in the right shoulder to posterior extension and rotation. Tr. at 501. He refilled Hydrocodone-Acetaminophen 10-325 mg and Valium 5 mg. Id.
On August 24, 2022, state agency medical consultant Christopher Gates, M.D. (“Dr. Gates”), 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 about six hours in an eight-hour workday; 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; and avoid even moderate exposure to hazards. Tr. at 59-61. A second state agency medical consultant, Gary Smith, M.D., reviewed the evidence at the reconsideration level and assessed the same physical RFC. Tr. at 69-71.
On August 30, 2022, Dr. Moss completed a questionnaire at the state agency's request. Tr. at 506-07. He stated Plaintiff's mental diagnoses were anxiety and panic attacks for which he was prescribed Valium that helped his condition. Tr. at 506. He denied recommending psychiatric care. Id. He described Plaintiff as oriented to time, person, place, and situation with intact thought process, appropriate thought content, worried/anxious mood/affect, adequate attention/concentration, and adequate memory. Id. He noted Plaintiff had adequate abilities to complete basic activities of daily living (“ADLs”), relate to others, and complete simple, routine tasks and poor ability to complete complex tasks. Id. He stated Plaintiff had difficulty with complex tasks due to his mental conditions. Tr. at 507. He considered Plaintiff capable of managing his own funds. Id.
On September 23, 2022, state agency psychological consultant Michael Neboschick, Ph.D. (“Dr. Neboschick”), reviewed the evidence and concluded Plaintiff's anxiety was nonsevere. Tr. at 58. A second state agency psychological consultant, Blythe Farish-Ferrer, Ph.D., reviewed the evidence at the reconsideration level and reached the same conclusion. See Tr. at 6768.
Plaintiff reported upper and lower back pain, stomach trouble, ability to eat only a small amount, heartburn, and loose stools on December 19, 2022. Tr. at 520. Dr. Moss refilled Hydrocodone-Acetaminophen 10-325 mg. Tr. at 520.
Dr. Moss noted Plaintiff appeared uncomfortable due to pain on January 23, 2023. Tr. at 518. He recorded abnormal findings that included muscle spasms and TTP in the back, neck, and shoulders, limp, and painful and decreased ROM of the right shoulder. Id. He refilled HydrocodoneAcetaminophen 10-325 mg, Lotrel 10-20 mg, Valium 5 mg, and Omeprazole 40 mg, and prescribed Paxil 20 mg. Tr. at 518-19.
Dr. Moss recorded the same findings on February 23, 2023. Tr. at 51516. He refilled Hydrocodone-Acetaminophen 10-325 mg, Lotrel 5-10 mg, Valium 5 mg, and ibuprofen 800 mg. Tr. at 516.
On March 23, 2023, Dr. Moss observed Plaintiff to appear uncomfortable due to pain. Tr. at 513. He noted TTP over the lumbosacral spine, cervical spine, and shoulders, muscle spasms in the bilateral paraspinals, trapezius, and neck muscles, painful, decreased ROM in the right shoulder, and ambulation with a limp. Id. He refilled HydrocodoneAcetaminophen 10-325 mg and ibuprofen 800 mg. Id.
Dr. Moss refilled Hydrocodone-Acetaminophen 10-325 mg, ibuprofen 800 mg, and Valium 5 mg on April 24, 2023. Tr. at 512.
C. The Administrative Proceedings
1. The Administrative Hearing a. Plaintiff's Testimony
Plaintiff testified he lived in a double-wide mobile home with his 18-year-old daughter and two boys, age 13 and 15, over whom he had legal guardianship. Tr. at 37. He said he was 5'11” tall, weighed 180 pounds, and was right-handed. Tr. at 38. He endorsed abilities to read, write, and perform simple addition and subtraction. Id. He indicated he had a driver's license and could drive short distances. Tr. at 39.
Plaintiff stated he had last worked as a trade specialist for the South Carolina Department of Transportation (“SCDOT”) in 2021. Id. He indicated the job involved digging ditches, putting in driveways, and similar projects. Id. He said he lifted up to 80 pounds. Tr. at 40. He testified he had been hit in the head with a track hoe bucket when he first started the job seven years prior and, despite his injury, had continued to work until he was fired in 2021. Id.
Plaintiff confirmed he had previously worked for ADS Logistics, where he picked and unloaded tennis shoes. Id. He said he had lifted over 100 pounds on the job. Tr. at 41. He explained he had been laid off from the job and subsequently called back, but was not rehired because he lacked a high school diploma. Id.
Plaintiff testified he was unable to work because his left foot and leg stayed numb. Tr. at 42. He said he could walk no more than 50 feet without feeling as if his hip were going to break off. Id. He stated he had problems with kidney stones and had been fired from a job in the past due to an absence related to a kidney stone. Tr. at 43. He stated he had two back surgeries. Id. He estimated he could stand for about 10 minutes before his leg would go down and he would need to sit. Id. He indicated he could sit upright in a chair for about five minutes. Id. He said he could not lift more than 20 pounds or bend over. Tr. at 44. He stated his arms and hands went numb and indicated the numbness was related to a problem with his neck for which he had declined surgery. Id.
Plaintiff testified he had dogs and cats. Tr. at 45. He stated the younger boy typically fed and gave water to the animals. Id. He indicated he could shower and dress on his own, except that his daughter sometimes put a sock on his left foot. Id. He said he could use a push mower around his porch, but his father mostly cut and weeded his yard. Tr. at 46. He noted he could wash and dry clothes, but did not fold them. Id. He indicated he could shop, but had to stop and prop against something to reduce the pressure on his leg. Id. He stated he rarely socialized with family and had no friends. Id. He admitted he had a cell phone and a Facebook account. Tr. at 47. He denied attending church and said he rarely went out to eat. Id.
Plaintiff testified he saw his doctor monthly for his back, leg, and foot problems. Id. He indicated he was taking the prescribed medication and had recently increased his dose because of increased pain due to a kidney stone. Id. He said his leg pain caused increased anxiety and his medication for anxiety caused him to feel sleepy. Tr. at 47-48. He stated he had experienced recurring kidney stones since age 16. Tr. at 49. He noted he had received short-term disability benefits for two years. Id.
b. Vocational Expert Testimony
Vocational Expert (“VE”) Ryan Farrell reviewed the record and testified at the hearing. Tr. at 50-54. The VE categorized Plaintiff's PRW as a construction worker II, Dictionary of Occupational Titles (“DOT”) No. 869.687-026, specific vocational preparation (“SVP”) of 2, and requiring very heavy strength per the DOT and heavy strength as performed, and an industrial truck operator, DOT No. 921.683-050, SVP of 3, and requiring medium strength per the DOT and heavy strength as performed. Tr. at 51. The ALJ described a hypothetical individual of Plaintiff's vocational profile who could lift and carry up to 20 pounds occasionally and 10 pounds frequently, stand and walk for approximately six hours in an eight-hour workday, sit for six hours in an eight-hour workday; never climb ladders, ropes, or scaffolds, occasionally climb ramps or stairs, stoop, crouch, kneel, or crawl, and was limited to occasional use of moving machinery and exposure to unprotected heights. Id. The VE testified that the hypothetical individual would be unable to perform Plaintiff's PRW. Id. The ALJ asked whether there were any other jobs that the hypothetical person could perform. Tr. at 52. The VE identified jobs at the light exertional level with an SVP of 2 as a cashier II, DOT No. 211.462-010, a housekeeper, DOT No. 323.687-013, and a marker, DOT No. 209.587-034, with approximately 465,000, 177,000, and 136,000 positions available nationally, respectively. Id.
The ALJ provided a second hypothetical that modified the first hypothetical to reduce the exertional level to sedentary. Id. The VE testified the individual could perform sedentary jobs with an SVP of 2 as a call-out operator, DOT No. 237.367-013, an addresser, DOT No. 209.587-010, and a document preparer, DOT No. 249.587-018, with 19,000, 15,000, and 15,000 positions in the national economy, respectively. Tr. at 52-53.
The ALJ presented a third hypothetical in which he asked the VE to consider an individual of Plaintiff's vocational profile who could lift up to 10 pounds occasionally, stand or walk for approximately one hour in an eighthour workday, and sit for approximately two hours in an eight-hour workday with normal breaks. Tr. at 53. He asked if there would be jobs available. Id. The VE testified there would be no jobs for someone with those limitations because the individual could only work for three hours in an eight-hour day. Id.
The ALJ asked the VE if there were any conflicts between his testimony and the information in the DOT. Id. The VE testified there were no conflicts, although he had provided information not directly addressed in the DOT, as it does not differentiate between types of climbing and an ability to work only three hours. Tr. at 53-54. He stated his testimony as to those matters was based on his education, experience, and training. Tr. at 54.
Plaintiff's representative asked the VE to consider the individual described in the first hypothetical question, but to assume the individual would be absent from work twice a month. Id. The VE testified that if the individual were absent twice a month on an ongoing and sustained basis, he would not be able to maintain employment. Id.
2. The ALJ's Findings
In his decision dated October 2, 2023, 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 December 31, 2026.
2. The claimant has not engaged in substantial gainful activity since April 30, 2021, the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: spine disorder (20 CFR 404.1520(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform
sedentary work as defined in 20 CFR 404.1567(a) except he can never climb ladders, ropes, or scaffolds; can occasionally climb ramps or stairs, stoop, crouch, kneel, or crawl; and is limited to occasional use of moving machinery and exposure to unprotected heights.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on December 4, 1976 and was 44 years old, which is defined as a younger individual age 18-44, on the alleged disability onset date. The claimant subsequently changed age category to a younger [sic] individual age 45-49 (20 CFR 404.1563).
8. The claimant has a limited education (20 CFR 404.1564).
9. Transferability of job skills is not material to the determination of disability because applying 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 (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from April 30, 2021, through the date of this decision (20 CFR 404.1520(g)).Tr. at 19-26.
II. Discussion
Plaintiff alleges the Commissioner erred in evaluating his subjective allegations regarding his symptoms.
The Commissioner counters that substantial evidence supports the ALJ's findings and that the ALJ committed no legal error in his 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 he 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 him 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, he 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 his 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 he 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 his 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 he 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 id.; 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 his 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
Plaintiff argues substantial evidence does not support the ALJ's evaluation of his subjective allegations. [ECF No. 10 at 17-21]. He maintains the ALJ erroneously sought objective evidence of pain to corroborate his allegations. Id. at 18. He contends reduced strength, tenderness, and muscle spasms were sufficient to support his allegations, and the ALJ should not have discredited his alleged symptoms based on “largely normal” physical exams given these positive findings. Id. He submits the ALJ's characterization of his treatment as conservative was unsupported, as he underwent injections and two surgeries and was prescribed narcotics and other strong medications. Id. at 19. He claims the ALJ should not have dismissed his financial difficulties in obtaining treatment without engaging in a specific inquiry as to his exhaustion of available resources. Id. at 19-20.
The Commissioner argues the ALJ properly considered Plaintiff's subjective statements regarding his symptoms in concluding they were not entirely consistent with the record. [ECF No. at 12 at 9]. He maintains that because the ALJ explained his consideration of Plaintiff's subjective statements and reached reasonable conclusions supported by substantial evidence, the court should defer to his findings. Id. at 10. He claims the ALJ appropriately considered the objective medical evidence as one of several factors in evaluating Plaintiff's symptoms. Id. at 12. He asserts the ALJ fully considered Plaintiff's treatment. Id. at 13. He contends the ALJ credited Plaintiff's allegations to the extent they were supported by the record, as he found Plaintiff was more limited than the state agency consultants indicated. Id. at 14-15. He submits the ALJ complied with SSR 16-3p and was not required to engage in a more exhaustive inquiry as to his financial situation prior to concluding the treatment Plaintiff sought was not consistent with his allegations. Id. at 16-17.
“[A]n ALJ follows a two-step analysis when considering a claimant's subjective statements about impairments and symptoms.” Lewis v. Berryhill, 858 F.3d 858, 865-66 (4th Cir. 2017) (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)). If the ALJ concludes the claimant's impairments could reasonably produce the symptoms she alleges, he continues to the second step in which he must “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)).
At the second step, the ALJ considers “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.” 20 C.F.R. § 404.1529(c)(4). In undertaking this inquiry, the ALJ should consider “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: (1) the claimant's ADLs; the location, duration, frequency, and intensity of the claimant's pain or other symptoms; (3) any OQ 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; and other factors concerning the claimant's functional limitations and restrictions due to pain or other symptoms. SSR 16-3p; 20 C.F.R. § 404.1529(c)(3), (4). “In order to get benefits, [the claimant] must follow treatment prescribed by [his] medical source(s) if this treatment is expected to restore [the claimant's] ability to work.” 20 C.F.R. § 404.1530(a). “If you do not follow the prescribed treatment without a good reason, we will not find you disabled ....” Id.
The ALJ should cite non-medical evidence and “specific medical facts (e.g., laboratory findings)” and must explain how all the relevant evidence in the case record supports the RFC assessment. SSR 96-8p, 1996 WL 374184, at *7 (1996). The ALJ's decision “must contain specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms. SSR 16-3p, 2017 WL 5180304, at *10.
The ALJ found that Plaintiff's impairments could reasonably be expected to cause the symptoms he alleged, but that his “statements net concerning the intensity, persistence, and limiting effects of these symptoms [were] not entirely consistent with the medical evidence and other evidence in the record.” Tr. at 22. He noted the claimant's statements regarding his symptoms were “inconsistent because they [were] not fully supported by the objective clinical findings and observations of record.” Tr. at 23. He wrote:
Findings on physical examination are largely normal, with only mildly positive findings of reduced strength, tenderness, and muscle spasm. The record contains no imaging studies of the claimant's cervical spine and no imaging studies of the claimant's lumbar spine after his January 2022 spine surgery.
Moreover, the claimant's treatment has remained conservative, primarily through prescribed narcotic pain medication both before and after his minimally invasive lumbar surgery in May 2021 and redo left L4-L5 microdiscectomy in January 2022. The record does not show that the claimant was fully compliant with his orthopedic specialist's recommendations of Gabapentin, another epidural steroid injection, or physical therapy.
The claimant has not sought medical treatment with the frequency that could reasonably be expected from an individual who is suffering from pain and other symptoms of the intense and disabling nature, which Plaintiff alleges. The claimant's access to medical care has been considered pursuant to SSR 18-3p. While I recognize that the claimant's financial situation is not optimal and it is unfortunate that he has not been able to afford healthcare, there is no evidence indicating that the claimant exhausted all resources available to individuals who cannot afford medical treatment or medication such as hospitals, clinics, or community agencies.Id.
The above excerpt reflects the ALJ's five reasons for finding Plaintiff's statements not entirely consistent with the record: (1) the findings on physical exam were mostly normal; (2) there were no imaging studies of his cervical spine in the record and no imaging studies of his lumbar spine following his second surgery; (3) he had received conservative treatment; (4) he did not follow all of his specialists' recommendations; and (5) he did not seek frequent-enough medical treatment. Based on a review of the record, the undersigned find the ALJ failed to provide adequate reasons to support his rejection of Plaintiff's statements as to his symptoms.
The ALJ's citation of a lack of imaging studies of Plaintiff's cervical spine and of his lumbar spine following his second surgery is not sufficient to support the failure to fully credit his allegations. “[T]he ALJ ‘will not reject your statements about the intensity and persistence of your pain or other symptoms or about the effect your symptoms have on your ability to work solely because the objective medical evidence does not substantiate your statements.'” Lewis, 858 F.3d at 866 (quoting 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2)). Because the ALJ found Plaintiff's impairment could reasonably be expected to cause the alleged symptoms, he was not permitted to dismiss Plaintiff's allegations based solely on a lack of additional objective medical evidence.
Although the ALJ characterized the findings on exam as “largely normal,” he did not explain this assessment, and review of the evidence without elaboration does not support the conclusion. During his last visit Q 1 with Plaintiff on May 16, 2022, Dr. Shields noted mostly normal findings on exam, aside from 5-/5 left DF and 4-/5 left EHL strength. Tr. at 487. Plaintiff continued to follow up with Dr. Moss for examination and medication management over approximately the next year. See Tr. at 501-21. During several subsequent visits, Dr. Moss observed Plaintiff to appear uncomfortable due to pain. Tr. at 501, 503, 513, 515, 518. He consistently observed:
BACK: paraspinal muscle spasm on the LEFT, paraspinal muscle spasm on the RIGHT, tender to palpation over the lumbar-sacral spine.
MUSCULOSKELETAL: shoulder tenderness over AC joint, shoulder tenderness subacromial region, shoulder tenderness bicipital groove, c'spine tender with muscle spasm in trapezius and neck muscles. Painful ROM right shoulder, decreased posterior extension and rotation.Tr. at 501; see also 503, 513, 515-16, 518. He further noted “mild Left foot drag” and “limps.” Tr. at 503, 513, 516, 518. Dr. Moss's records between June 2022 and April 2023 reflect the abnormalities detailed above regarding Plaintiff's back and musculoskeletal system and do not document the “largely normal” findings the ALJ references. See Tr. at 501-21. As Plaintiff notes, reduced strength, tenderness, and muscle spasm are positive findings that support his allegations. Furthermore, the ALJ neglected Dr. Moss's impressions that Plaintiff appeared “uncomfortable due to pain” and demonstrated left foot drag and a limp. Because the ALJ did not explain how the overall record suggested “largely normal” finding or address all the abnormal findings, his conclusion is not supported.
The undersigned finds additional error in the ALJ's characterization of Plaintiff's treatment as conservative. In Lewis, the court explained:
Lewis' multiple medical conditions require her to take powerful analgesics, including Fentanyl and Oxycodone. Furthermore, Lewis endured multiple surgeries, one of which required removal of her first left rib to alleviate pain. Before those surgeries, Lewis underwent a lumbar epidural injection, two supraspinatus nerve blocks, and a radiofrequency ablation of her supraspinatus nerve. In light of the extensive treatment Lewis received for her various conditions, the ALJ's designation of Lewis's course of treatment as “conservative” amounts to improperly “playing doctor” in contravention of the requirements of applicable regulations.Lewis, 858 F.3d at 869 (citing 20 C.F.R. §§ 404.1529, 416.929; Hill v. Colvin, 807 F.3d 862, 868 (7th Cir. 2015) (“The ALJ's conclusion is not supported by any medical evidence in the record; it amounts to the ALJ improperly ‘playing doctor.'”)). Plaintiff's treatment was not as extensive as Lewis's, but there were multiple similarities between the treatment both received, including undergoing two surgeries, the use of “powerful analgesics,” and the receipt of ESIs. In light of the court's explanation in Lewis, the undersigned cannot find substantial evidence supports the ALJ's characterization of Plaintiff's treatment as conservative without further explanation.
The ALJ failed to reconcile his conclusion that Plaintiff “ha[d] not sought treatment with the frequency that could reasonably be expected” with his ongoing pain management treatment with Dr. Moss. After Dr. Shields released Plaintiff to return on an as-needed basis in May 2022, Plaintiff continued to follow up with Dr. Moss for approximately monthly pain management visits and was prescribed narcotic pain and other medications. See Tr. at 501-21.
The ALJ correctly noted Plaintiff did not follow through with Dr. Shields' recommendations for Gabapentin, additional physical therapy, and an ESI. He stated he had considered Plaintiff's access to medical care pursuant to SSR 18-3p. Tr. at 23. Pursuant to SSR 18-3p:
We will determine whether an individual has failed to follow prescribed treatment only if all three of the following conditions exist:
1. The individual would otherwise be entitled to benefits based on disability or eligible for blindness benefits under titles II or XVI of the Act;
2. We have evidence that an individual's own medical source(s) prescribed treatment for the medically determinable impairment(s) upon which the disability finding is based; and
3. We have evidence that the individual did not follow the prescribed treatment.
If all three conditions exist, we will determine whether the individual failed to follow prescribed treatment ....SSR 18-3p, 2018 WL 4945641, at *2-3. “We only perform the failure to follow prescribed treatment analysis discussed in this SSR after we find that an individual is entitled to disability or eligible for statutory blindness benefits a under title II or XVI of the Act, regardless of whether the individual followed the prescribed treatment.” Id. at *3. Because the ALJ did not find Plaintiff would be entitled to benefits if he had followed all prescribed medical treatment, it does not appear that he should have applied the rules in SSR 18-3p, and the inquiry under SSR 16-3p appears applicable.
Pursuant to SSR 16-3p:
We will consider an individual's attempts to seek medical treatment for symptoms and to follow treatment once it is prescribed when evaluating whether symptom intensity and persistence affect the ability to perform work-related activities . . . . Persistent attempts to obtain relief of symptoms, such as increasing dosages and changing medications, trying a variety of treatments, referrals to specialists, or changing treatment sources may be an indication that an individual's symptoms are a source of distress and may show that they are intense and persistent.
In contrast, if the frequency or extent of the treatment sought by an individual is not comparable with the degree of the individual's subjective complaints, or if the individual fails to follow prescribed treatment that might improve symptoms, we may find the alleged intensity and persistence of an individual's symptoms are inconsistent with the overall evidence of record. We will not find an individual's symptoms inconsistent with the evidence in the record on this basis without considering possible reasons he or she may not comply with treatment or seek treatment consistent with the degree of his or her complaints. We may need to contact the individual regarding the lack of treatment or, at an administrative proceeding, ask why he or she has not complied with or sought treatment in a manner consistent with his or her complaints.2017 WL 5180304, at *9.
The record may include “suggestions the claimant cannot afford treatment and lacks access to free or low-cost medical services.” Id. at *10. A “claimant may not be penalized for failing to seek treatment she cannot afford; ‘it flies in the face of the patent purposes of the Social Security Act to deny benefits to someone because he is too poor to obtain medical treatment that may help him.'” Lovejoy v. Heckler, 790 F.2d 1114, 1117 (4th Cir. 1985) (quoting Gordon v. Schweiker, 725 F.2d 231, 237 (4th Cir. 1984)). Here, Plaintiff explained to Dr. Shields that he was having a problem with his insurance. See Tr. at 487. Therefore, the record contains evidence that Plaintiff had financial difficulty pursuing the additional treatment.
The ALJ acknowledged that Plaintiff “had not been able to afford healthcare,” but he concluded there “was no evidence indicating that the claimant exhausted all resources available to individuals who cannot afford medical treatment or medication such as hospitals, clinics, or community agencies.” Tr. at 23. In Preston v. Heckler, 769 F.2d 988, 990-91 (4th Cir. 1985), the court explained the following:
If noncompliance is ultimately to be found a basis for denying benefits, it must be found on the basis of a more particularized inquiry than that made here. While the regulatory scheme promulgated by the Secretary does not expressly dictate how the noncompliance inquiry under 20 C.F.R. § 404.1530 meshes with the sequential analysis of disability under 20 C.F.R. § 404.1520, we hold that the burden of producing evidence concerning unjustified noncompliance lies with the Secretary. Therefore, on remand, if noncompliance is to be a basis for denying benefits,
the Secretary must develop a record establishing by substantial evidence that the claimant's impairment “is readily remediable by the particular individual involved, given . . . her social or psychological situation,” Tome v. Schweiker, 724 F.2d 711, 714 (8th Cir. 1984), and that this claimant lacks good cause for failing to follow a prescribed treatment program. See Gordon v. Schweiker, 725 F.2d 231, 236 (4th Cir. 1984) (remand for inquiry into whether particular claimant could voluntarily stop drinking alcohol where impairment was alcohol related).Preston suggests a more particularized inquiry is required than that reflected here. The ALJ found Plaintiff did not pursue Gabapentin, physical therapy, and an additional ESI through a hospital, clinic, or community agency without asking Plaintiff if he had pursued such options and without evidence that those services were available for free or little cost through such resources. He had the opportunity to develop the record regarding Plaintiff's failure to obtain the recommended treatment during the hearing, but did not question him. See Tr. at 37-49. Therefore, the ALJ concluded Plaintiff had not exhausted all available resources without developing the record to support his conclusion.
In light of the foregoing, substantial evidence does not support the ALJ's finding that Plaintiff's statements regarding his symptoms were not entirely consistent with the medical and other evidence of record. Consequently, because the RFC assessment is to be based on the claimant's statements and the other evidence of record, substantial evidence fails to support the RFC assessment and the ALJ's conclusion at step five.
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 determine 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 for further administrative proceedings.
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).