Opinion
C. A. 1:20-cv-3364-JD-SVH
08-26-2021
Trexter L., [1] Plaintiff, v. Kilolo Kijakazi, [2] Acting Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Shiva V. Hodges, United States Magistrate Judge
This appeal from a denial of social security benefits is before the court for a Report and Recommendation (“Report”) pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying his claim for Supplemental Security Income (“SSI”). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether she applied the proper legal standards. For the reasons that follow, the undersigned recommends the Commissioner's decision be affirmed.
I. Relevant Background
A. Procedural History
On October 31, 2016, Plaintiff filed an application for SSI in which he alleged his disability began on July 27, 2016. Tr. at 181, 244-50. His application was denied initially and upon reconsideration. Tr. at 183-86, 190-93. On September 30, 2019, Plaintiff had a hearing before Administrative Law Judge (“ALJ”) Ann Paschall. Tr. at 87-109 (Hr'g Tr.). The ALJ issued an unfavorable decision on November 1, 2019, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 66-86. 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 2-7. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on September 23, 2020. [ECF No. 1].
The record contains a prior unfavorable decision dated July 26, 2016, that is administratively final. Tr. at 110-29, 130-49.
B. Plaintiff's Background and Medical History
1. Background
Plaintiff was 45 years old at the time of the hearing. Tr. at 93. He completed ninth grade. Tr. at 94. His past relevant work (“PRW”) was as an industrial truck operator and a laminating machine operator. Tr. at 144. He alleges he has been unable to work since July 27, 2016. Tr. at 244.
The record contains additional evidence Plaintiff submitted to the Appeals Council for the period from January 23, 2020, through May 14, 2020. Tr. at 8-60. Plaintiff's arguments on appeal center on the ALJ's errors in assessing his residual functional capacity and his treating physician's opinion. Because this evidence was not in the record before the ALJ and pertains to the period after her November 1, 2019 decision, it does not appear to be relevant to the court's evaluation of Plaintiff's arguments. Therefore, the undersigned has declined to summarize the additional evidence.
Plaintiff presented to Greater Greenwood United Ministry Free Medical Clinic (“Clinic”) for treatment of right hip pain and depression on December 30, 2015. Tr. at 347. He complained of anhedonia and having sustained falls. Id. The provider prescribed Prozac 20 mg, ibuprofen 800 mg, Flonase 50 mg, and Zyrtec 10 mg. Id.
Plaintiff followed up at Clinic for treatment of depression and pain in his bilateral hips and low back on February 9, April 16, and May 4, 2016. Tr. at 344-46.
On May 9, 2016, Stacy Mitchell fitted Plaintiff for a one inch full-soled shoe lift due to right leg-length discrepancy. Tr. at 328.
Plaintiff complained of difficulty breathing and sought medication refills on August 2, 2016. Tr. at 343. He reported joint stiffness and depression due to having been the driver in a motor vehicle accident (“MVA”) in which his friend was killed. Id. The provider noted lumbar tenderness on exam. Id. He discontinued Prozac and prescribed Cymbalta 30 mg and Advair. Id.
Plaintiff presented to David N. Holt, M.D. (“Dr. Holt”), for a consultative exam on February 16, 2017. Tr. at 361-66. He reported having been injured in an MVA in 2005. Tr. at 361. He indicated an 18-wheeler had struck the vehicle, killing his friend and causing him to suffer a traumatic brain injury (“TBI”) and fracture his right hip and femur. Id. He endorsed symptoms of anxiety and depression since the MVA and said he experienced two to three panic attacks per month. Id. He denied nightmares, but talked in circles. Tr. at 362. He described pain that started in his lumbar region and radiated to his right hip and thigh, stopping at his knee. Id. He indicated his pain was exacerbated by movement and position and affected his sleep. Id. He reported tension headaches that occurred two to three times a week and lasted for an hour or two. Id. He complained of bronchitis and asthma with daily exacerbations. Id. He reported abilities to stand for 20-30 minutes, walk a quarter of a mile, sit for 20 minutes, and lift 30 pounds. Tr. at 363. He indicated he drove, mowed his lawn, shopped, and performed household chores. Id. He was 5'6” tall and weighed 138 pounds. Tr. at 364. He had normal gait and station and reported using a cane five percent of the time, although he did not use it during the exam. Id.
Dr. Holt observed Plaintiff to be slow and moan upon rising from a chair, but to have no difficulty dressing and undressing and getting on and off the exam table. Id. He noted 2+/4 tenderness at the umbilicus, 4+/4 tenderness at ¶ 11, and 3+/4 tenderness below S2. Id. Plaintiff demonstrated 1+ deep tendon reflexes at the elbows and knees. Id. Dr. Holt indicated Plaintiff had an eight-centimeter incision to his right lateral buttock that was 3+/4 tender. Id. He found a one-and-a-half centimeter difference in Plaintiff's leg length, with the left measuring longer than the right. Tr. at 365. He noted mildly reduced range of motion (“ROM”) in the lumbar spine, but normal ROM elsewhere. Id. He recorded 4/5 heel walk and squat and normal toe and tandem walk. Id. He found Plaintiff had 5/5 muscle strength in all extremities and a decreased response to light touch in the right digits. Id. His impressions were (1) history of MVA in which Plaintiff sustained a TBI and fractured the right hip, requiring open reduction and internal fixation (“ORIF”) with hardware placement; (2) emotional trauma and unresolved grief due to losing closest friend in MVA; (3) anxiety and depression due to loss of friend; (4) low back pain, with findings of low thoracic and low sacral tenderness; (5) asthma due to eight common inciting agents; and (6) inconsistencies in history deeming it at least partially unreliable. Tr. at 365- 66. He wrote: “[Plaintiff] was unable to give a reliable history, mostly as a result of inadequate information, but with some inconsistencies as well.” Id.
On March 22, 2017, state agency psychological consultant Xanthia Harkness, Ph.D. (“Dr. Harkness”), reviewed the record and considered listings 12.04 for depressive, bipolar, and related disorders, 12.11 for neurodevelopmental disorders, and 12.15 for trauma- and stressor-related disorders. Tr. at 154-55. She found Plaintiff had no difficulty in his ability to adapt or manage oneself, mild difficulty in his ability to interact with others, and moderate difficulties in his abilities to understand, remember, or apply information and concentrate, persist, or maintain pace. Id. Dr. Harkness completed a mental residual functional capacity (“RFC”) assessment in which she indicated Plaintiff was moderately limited in his abilities to: carry out detailed instructions; maintain attention and concentration for extended periods; and complete a normal workday and workweek without interruption from psychologically-based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. Tr. at 158-60. She wrote:
1. Claimant is able to understand and remember simple instructions but could not understand and remember detailed instructions.
2. Claimant is able to carry out short and simple instructions but not detailed instructions. Claimant is able to maintain concentration and attention for periods of at least 2 hours.
3. Claimant is able to respond appropriately to co-workers, supervisors and the general public.
4. Claimant is able to be aware of normal hazards and take appropriate precautions.Tr. at 159-60.
Also on March 22, 2017, state agency medical consultant Joseph Geer, M.D. (“Dr. Geer”), reviewed the record and assessed Plaintiff's physical 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 about six hours in an eight-hour workday; sit for a total of about six hours in an eight-hour workday; occasionally climb ladders, ropes, and scaffolds; frequently balance, stoop, kneel, crouch, crawl, and climb ramps and stairs; and avoid concentrated exposure to hazards. Tr. at 156-58.
On July 11, 2017, nurse practitioner A. Mearns (“NP Mearns”) at Clinic completed a questionnaire regarding Plaintiff's mental status and treatment. Tr. at 372. She stated Plaintiff's mental diagnoses included depression and head injury due to a 2003 MVA. Id. She noted she had last treated Plaintiff that day. Id. She indicated Plaintiff was taking Cymbalta, but it had not helped his condition. Id. She stated Plaintiff had been referred to Beckman Center for psychiatric care, but was not treated due to his uninsured status. Id. She noted the following findings on mental status exam (“MSE”): oriented to time, person, place, and situation; racing thought process; appropriate thought content; worried/anxious mood/affect; adequate attention/concentration; and adequate memory. Id. She indicated Plaintiff had good ability to complete basic activities of daily living (“ADLs”); adequate ability to relate to others; and poor abilities to complete simple, routine tasks and complex tasks.” Id. She wrote: “difficulty focusing on complex tasks” and “difficulty completing tasks.” Id. She considered Plaintiff capable of managing his own funds. Id.
On August 17, 2017, x-rays of Plaintiff's right hip showed severe osteoarthritis of the right hip and moderate osteoarthritis of the left hip, but the findings had not significantly changed since January 6, 2015. Tr. at 376.
Plaintiff presented to Brian Henry, M.D. (“Dr. Henry”), for a disability evaluation on September 5, 2017. Tr. at 378. He reported having sustained a right hip fracture with ORIF in a 2003 MVA in which his friend was killed. Id. He indicated he had last worked as a professional boxer two years prior and had last worked at Sterilite three weeks prior. Id. He complained of poor short-term memory, variable energy, anxiety, irritability, concentration changes, leg pain, and shortness of breath upon exertion. Id. Dr. Henry observed normal gait, sensation, strength, and ROM, aside from limited internal and external rotation of the right hip. Tr. at 378-79. He assessed status post-right hip fracture, depression with anxiety, and mild persistent asthma without complication. Tr. at 379. He stated Plaintiff could manage his own financial affairs. Id. He acknowledged that pain and limited ROM of Plaintiff's right hip could limit his ability to stand or walk for prolonged periods, but stated he should be able to perform seated work with standing breaks. Id. However, he also noted the MVA was 14 years prior and Plaintiff's last boxing match was only two years prior such that “[i]f he can box, [one] would expect pretty good mobility and function.” Id. He stated Plaintiff's moderate depressive symptoms could limit his ability to work in a stress-filled environment. Id. He indicated Plaintiff's respiratory symptoms were more related to allergies than asthma and might affect his work abilities intermittently, but not regularly. Id.
On September 27, 2017, state agency medical consultant Sherrial Simmers, M.D. (“Dr. Simmers”), reviewed the record and assessed Plaintiff's physical 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 about six hours in an eight-hour workday; sit for a total of about six hours in an eight-hour workday; occasionally climb ladders, ropes, or scaffolds; frequently balance, stoop, kneel, crouch, crawl, and climb ramps and stairs; and avoid concentrated exposure to hazards. Tr. at 173-76.
Plaintiff presented to Ron Thompson, Ph.D. (“Dr. Thompson”), for a consultative psychological evaluation on November 8, 2017. Tr. at 384-85. He complained of pain and poor sleep the prior night. Tr. at 384. Dr. Thompson observed Plaintiff to be “quite stiff” on sitting and rising and have good personal hygiene, normal psychomotor activity, and a moderate antalgic limp. Id. He noted dysphoric mood and affect. Id. He indicated Plaintiff was alert, oriented, knew the current president's name, and spelled “world” correctly forward and backward. Id. However, he stated Plaintiff lost concentration when attempting to calculate a simple cash transaction and felt he needed a payee if awarded benefits. Id. He indicated Plaintiff recited the months of the year backwards slowly, but accurately. Id. He noted Plaintiff also counted slowly, but accurately from 20 to one. Id. He stated Plaintiff's concentration and attention were poor and he seemed to have difficulty with focus. Id. He related a need to interrupt and redirect Plaintiff, as he was quite talkative, a bit irritable, and easily frustrated. Id.
Plaintiff complained of being stressed and overwhelmed due to pain in his hips, back, and legs. Id. He endorsed feelings of worthlessness and uselessness and impaired concentration that resulted in him losing his way while driving. Id. He denied suicidal ideation, homicidal ideation, paranoid ideation, and hallucinations. Id. He admitted to daily marijuana use. Id. He denied difficulty with personal care and ADLs. Tr. at 375. He indicated he cared for his two children and helped around the house while his girlfriend worked. Id. He reported driving, swimming for exercise, and being active in his church. Id.
Dr. Thompson estimated Plaintiff's cognitive ability was in the low average range. Tr. at 384. He stated Plaintiff was in no acute psychiatric distress. Id. His diagnostic impressions were adjustment disorder with dysthymic features and report of TBI. Tr. at 375. He noted Plaintiff “probably would have difficulty maintaining his concentration in a typical work environment if he were placed under pressure and this might cause him to make mistakes or to not perceive and avoid danger making him a danger to himself and others.” Id. He further wrote: “I would think he could manage at a slow pace in a quiet environment if there was no heavy demand for work-intensive labor. I do believe he will need his girlfriend or someone to be a payee if he is awarded benefits.” Id.
State agency psychological consultant Michael Neboschick, Ph.D. (“Dr. Neboschick”), reviewed the record and considered listings 12.04 and 12.11 on December 12, 2017. Tr. at 171-72. He rated Plaintiff as having mild limitations in interacting with others and moderate limitations in adapting or managing oneself; concentrating, persisting, or maintaining pace; and understanding, remembering, or applying information. Id. He indicated in a mental RFC assessment that Plaintiff was moderately limited in his abilities to: understand and remember detailed instructions; carry out detailed instructions; maintain attention and concentration for extended periods; complete a normal workday and workweek without interruptions from psychologically-based symptoms and perform at a consistent pace without an unreasonable number and length of rest periods; and respond appropriately to changes in the work setting. Tr. at 176-78. Like Dr. Harkness, Dr. Neboschick found:
1. Claimant is able to understand and remember simple instructions but could not understand and remember detailed instructions.
2. Claimant is able to carry out short and simple instructions but not detailed instructions. Claimant is able to maintain concentration and attention for periods of at least 2 hours.
3. Claimant is able to respond appropriately to co-workers, supervisors and the general public.
4. Claimant is able to be aware of normal hazards and take appropriate precautions.Tr. at 177-78.
On May 21, 2018, Plaintiff presented to orthopedist Charles Gray, M.D. (“Dr. Gray”), to discuss hip revision surgery. Tr. at 412. He complained of severe right hip pain with a history of surgery following an MVA in 2005 and subsequent injury due to a motorcycle accident. Id. He described anterior posterior lateral pain around his right hip that occurred daily and varied in severity. Id. Dr. Gray observed full extension of Plaintiff's right hip with flexion to 70 degrees and abduction to 30 degrees. Tr. at 413. He indicated Plaintiff was unable to perform internal rotation and could externally rotate the right hip to 20 degrees. Id. He stated Plaintiff had severe pain in his hip with any attempt at rotation in extension or flexion. Id. He noted no problems with Plaintiff's back and right knee, ankle, and foot. Id. He stated Plaintiff's right leg was approximately half an inch shorter than his left. Id. He reviewed x-rays of Plaintiff's pelvis and lateral right hip, noting osteoarthritic change to the left hip and severe end-stage arthritis in the right hip, screws and a small plate in the posterior right acetabulum, and shortening of the right leg. Id. He assessed posttraumatic end-stage arthritis of the right hip and moderately-advanced osteoarthritis of the left hip. Id. Dr. Gray recommended hip replacement surgery, and Plaintiff expressed a desire to proceed. Id.
On June 8, 2018, Plaintiff visited the emergency room (“ER”) at Self Regional after some pots fell on his head, causing a headache, neck pain, and tenderness. Tr. at 406. James Bruce Cook, M.D. (“Dr. Cook”), noted tenderness to palpation (“TTP”) of Plaintiff's scalp at the top of his head, but found no laceration or hematoma. Tr. at 407. He indicated x-rays and workup were negative and discharged Plaintiff with pain medicine for a headache. Id.
On June 25, 2018, Plaintiff presented to Joshua Holmes, M.D. (“Dr. Holmes”), for ER follow up. Tr. at 395. He indicated he was treated for a muscle strain to his neck after some pots fell on his head. Id. He sought a second opinion as to whether to proceed with right hip replacement. Id. Dr. Holmes prescribed Cyclobenzaprine HCl 5 mg for neck strain, stopped Meloxicam for right hip osteoarthritis, and prescribed Naproxen 500 mg for arthritis-related pain. Tr. at 395-96. He declined to prescribed narcotics, as Plaintiff had a history of prescription drug abuse. Tr. at 396. He indicated he would refer Plaintiff to another orthopedist for a second opinion once he determined who he wanted to consult. Id.
Plaintiff sought preoperative clearance on July 23, 2018. Tr. at 393. Dr. Holmes recorded normal findings on physical exam, noted an electrocardiogram (“EKG”) was normal, and indicated he would clear Plaintiff for surgery, provided his lab studies were normal. Id.
Plaintiff presented to Eman Sharawy, M.D. (“Dr. Sharawy”), for an initial psychiatric medical assessment on August 22, 2018. Tr. at 410. He reported having been injured in an MVA involving an 18-wheeler in 2005. Id. He indicated his friend was killed and he suffered a head injury with brief loss of consciousness. Id. He reported having received a $250,000 settlement and spent it on drugs. Id. He indicated he had abstained from all drugs for 90 days. Id. He endorsed symptoms that included recurrent thoughts, anxiety, depressed mood, crying spells, poor energy, poor appetite, and irritability. Id.
Dr. Sharawy observed the following on MSE: normal appearance; cooperative attitude; calm behavior; normal eye contact and speech; intact associations; logical/goal-directed thought process; denies delusions, suicidal ideation, homicidal ideation, obsessions, and hallucinations; euthymic mood; appropriate affect; alert sensorium; oriented to time; intact recent and remote memory, attention, and concentration; average language and fund of knowledge; and fair insight and judgment. Tr. at 411. She diagnosed unspecified mental disorder due to another medical condition, opioid use disorder in early remission, mild cannabis use disorder in early remission, posttraumatic stress disorder (“PTSD”), and TBI. Id. She prescribed Lamictal 100 mg at bedtime and Lamictal 25 mg during the day for two weeks and then twice during the day. Id. She recommended Plaintiff follow up with a clinician for psychotherapy and with a doctor for medication monitoring. Id.
Plaintiff visited the ER at Self Regional on September 24, 2018, for intolerable right hip pain. Tr. at 526-616. He indicated his pain had increased such that he could not bear weight on the right hip when walking. Tr. at 535. X-rays showed severe right and moderate left hip osteoarthritis with bone-on-bone articulation on the right and stable right acetabular hardware. Tr. at 530. John Galt Robinson, M.D. (“Dr. Robinson”), noted subjective tenderness of the greater trochanter without any erythema, edema, or induration and limited ROM of the right hip due to pain. Tr. at 537. The physical exam was otherwise normal. Tr. at 536-37. Dr. Robinson treated Plaintiff with steroids and Tramadol for breakthrough pain and instructed him to follow up with Dr. Gray. Tr. at 537.
Plaintiff presented to Beckman Mental Health with complaints of depression and anxiety on October 17, 2018. Tr. at 699-700. He endorsed depression, anxiety, and anger and said he had been unable to afford Lamictal. Tr. at 699. He reported being free of street drugs for 120 days, except that he had relapsed with marijuana, which he continued to smoke. Id. He indicated he last used heroin in July and last used cocaine in 2015. Id. He said he was participating in counseling at Cornerstone. Id. Nurse practitioner Brynna Holland (“NP Holland”) recorded normal findings on MSE, aside from poor insight and judgment. Id. She advised Plaintiff to start Lamictal and to make an appointment with his therapist. Id.
Plaintiff returned to Dr. Gray for severe right hip pain on October 18, 2018. Tr. at 629. Dr. Gray noted Plaintiff could not afford to undergo a CT scan, but desired to proceed with hip replacement surgery. Id. He referred Plaintiff to Douglas Powell, M.D. (“Dr. Powell”), for hip replacement surgery. Tr. at 630.
Plaintiff returned to Dr. Holmes for a routine follow up visit on October 22, 2018. Tr. at 701. He reported right hip pain that significantly restricted his activities, occasional swelling and tenderness in his legs, and depression. Id. Dr. Holmes noted TTP of the right calf muscle and swelling in the right leg. Tr. at 702. He stopped Cyclobenzaprine and renewed Naproxen 500 mg. Tr. at 703. He ordered an ultrasound to rule out deep venous thrombosis (“DVT”). Id.
Dr. Powell evaluated Plaintiff's right hip pain on November 12, 2018. Tr. at 640. Plaintiff reported having injured his right hip in an MVA in 2003, having undergone surgical repair, and having reinjured his right hip while riding a motorcycle in 2005. Id. He complained of increasing right hip discomfort over the prior seven to eight years and indicated he was unable to work or stand for any significant time. Id. Dr. Powell observed decreased motion on the left side of a marginal degree and painful internal and external rotation, abduction, or adduction on the right side. Id. He stated x-rays showed Plaintiff's right hip to be “completely destroyed.” Id. He planned to proceed with right total hip arthroplasty. Id.
Plaintiff returned to Dr. Powell for a preoperative visit on December 4, 2018. Tr. at 1225. Dr. Powell explained the risks to Plaintiff. Id. He found no contraindications to surgery and planned to proceed. Id.
Plaintiff was hospitalized at Self Regional for total hip arthroplasty from December 19 through December 21, 2018. Tr. at 954-55. Dr. Powell performed anterior total right hip arthroplasty and acetabular and proximal femoral prosthetic replacement. Tr. at 967-68. Post-surgical x-rays showed good alignment of the right hip, but at least moderate degenerative changes to the left hip. Tr. at 1241, 1252. Magnetic resonance imaging (“MRI”) of the right hip showed a well-aligned arthroplasty. Tr. at 921, 947, 953. X-rays of Plaintiff's right knee were normal. Tr. at 924, 928, 949, 1247, 1306. Plaintiff was discharged with home health for physical therapy. Tr. at 954. He was instructed to bear weight as tolerated with use of a walker. Id.
Plaintiff returned to Dr. Powell for a two-week follow up visit on January 4, 2019. Tr. at 658. He complained of pain and swelling in the right leg and discomfort in his knee and calf. Id. Dr. Powell observed a well-appearing wound, no pain with motion of the right hip, no right knee effusion, intact circulation and sensation in the legs, and mild general swelling in the right leg. Id. He removed Plaintiff's staples and ordered an ultrasound to rule out DVT. Id. The ultrasound was negative for DVT. Id.
On January 17, 2019, Plaintiff reported doing well and gradually regaining strength. Tr. at 667. Dr. Powell observed that Plaintiff's wound looked good and he had no warmth or discoloration. Id. He noted that he could have slightly deepened the acetabular component, but there was no need seen at the time of surgery to remove the three pre-existing screws in the superior acetabulum. Id. He advised Plaintiff to continue to work on strengthening his right leg and indicated he would see him again in two months and would order formal therapy for strengthening and balance at that time. Id.
On February 21, 2019, Plaintiff indicated was “doing OK” and taking Lamictal as prescribed, which “t[ook] the edge off.” Tr. at 697. He indicated he was less depressed and angry and was arguing with his girlfriend less frequently. Id. NP Holland observed Plaintiff to be appropriate, calm, pleasant, and ambulating with a cane. Id. She noted Plaintiff had normal sleep, interest, energy, concentration, appetite, and psychomotor activity. Id. She refilled Lamictal 100 mg. Tr. at 698.
Plaintiff presented to the ER at Self Regional for acute exacerbation of right lower extremity pain on February 23, 2019. Tr. at 1478-1530. Stephen Richard Schwab, M.D. (“Dr. Schwab”), noted tenderness in Plaintiff's right hip, but normal ROM and strength and no bony tenderness, swelling, deformity, or sensory deficit. Tr. at 1479. He noted Plaintiff had received 60 Oxycodone over approximately a 30-day period for pain-related symptoms. Tr. at 1528. He stated Plaintiff's presentation was consistent with exacerbation of pain related to his surgery. Tr. at 1480. He ordered an analgesic/nonsteroidal anti-inflammatory drug (“NSAID”) and muscle relaxer and noted any narcotic treatment would need to come from Plaintiff's primary care physician or orthopedist. Id.
On March 19, 2019, Plaintiff reported minimal discomfort. Tr. at 676. Dr. Powell noted his wound looked great, his limb length appeared equal, and his ROM looked good. Id.
Plaintiff attended physical therapy sessions on March 26 and April 2, 4, 8, 10, and 16, 2019. Tr. at 1562-1604. He was discharged due to a plateau in progress and expiration of his prescription. Tr. at 1604. Physical therapy assistant Forest Newby advised Plaintiff to continue with exercises at home or in a gym and to check into financial aid for a gym membership. Id. He recommended pool exercises and reminded Plaintiff to take hip precautions if he engaged in non-aquatic exercise. Id.
On June 5, 2019, Plaintiff reported feeling depressed and hopeless because he could not provide for his family. Tr. at 695. He endorsed frequent anxiety, somatic symptoms, nervousness, and irritability. Id. NP Holland recorded normal findings on MSE. Id. She refilled Lamictal 100 mg, prescribed Hydroxyzine HCl 25 mg, and encouraged Plaintiff to continue therapy. Tr. at 696.
Plaintiff returned to Dr. Powell for a six-month follow up visit on July 8, 2019. Tr. at 1607. He reported doing well overall, except for a little muscular soreness about the hip. Id. He endorsed occasional discomfort in the right knee and increasing discomfort in the left hip and groin. Id. Dr. Powell observed excellent motion of the hip and knee, no warmth or discoloration about either site, well-healed wound, and intact motor strength in the right leg. Id. He reviewed x-rays that showed well-fixed components, no evidence of avascular necrosis, and reduced hip. Id. He felt that Plaintiff was continuing to adjust to the new motion and action of the hip and would continue to experience change for another four to five months before reaching a final level of functioning. Id.
Plaintiff complained of depression, an injury and rash to his right hand, and pain in his left wrist and right knee on August 9, 2019. Tr. at 1615. He endorsed chronic and post-surgical pain and requested narcotic medications. Id. Dr. Holmes offered to prescribe Cymbalta or other alternative treatment for Plaintiff's widespread pain. Tr. at 1616. He noted Plaintiff “became angry” and “started to argue” with him when he declined to prescribe narcotics. Id. He indicated he would refer Plaintiff to pain management if he obtained Medicaid coverage. Id.
Plaintiff presented to the ER at Self Regional with upper chest wall pain on September 16, 2019. Tr. at 1652-77. Bibb Randall Cain, M.D. (“Dr. Cain”), noted Plaintiff was mildly anxious, walked using a cane, had no splinting with deep breathing, had no cough, and was not dyspneic. Tr. at 1655. He stated Plaintiff had reproducible left upper chest wall tenderness without palpable deformity. Id. He noted no abnormal findings on musculoskeletal or psychiatric exams. Tr. at 1656. He diagnosed musculoskeletal chest pain. Tr. at 1660.
On September 18, 2019, NP Holland completed a questionnaire addressing Plaintiff's functional limitations. Tr. at 1553-55. She indicated Plaintiff could occasionally follow work rules, use judgment, function independently, and maintain attention/concentration. Tr. at 1553. She noted Plaintiff could rarely relate to coworkers, deal with the public, interact with supervisors, and deal with work stresses. Id. She stated Plaintiff had frequent exacerbations of mood related to depression, anxiety, and anger. Id. She considered Plaintiff capable of frequently understanding, remembering, and carrying out simple job instructions; occasionally capable of understanding, remembering, or carrying out detailed, but not complex jobs instructions; and rarely capable of understanding, remembering, and carrying out complex job instructions. Tr. at 1554. She stated Plaintiff had frequent irritability, low energy, and anxiety, which affected his thought organization and concentration. Id. She noted Plaintiff could occasionally maintain personal appearance and demonstrate reliability and rarely behave in an emotionally stable manner and relate predictably in social situations. Id. She explained that Plaintiff had frequent low energy, anger, and irritability that negatively affected him in social situations. Id. She felt that Plaintiff's mental impairments would require him to exceed the number of usual breaks during an eight-hour workday. Id. She indicated Plaintiff's mental impairments interfered with his completion of an eight-hour workday. Id. She estimated Plaintiff's impairments or treatment would cause him to be absent from work on four days per month. Tr. at 1555. She confirmed that Plaintiff's impairments had lasted or were expected to last at least 12 months. Id. She indicated Plaintiff was not a malingerer. Id. She confirmed that Plaintiff's impairments were reasonably consistent with the symptoms and functioning limitations she described in her evaluation. Id. She noted Plaintiff's medication might cause sedation. Id. She wrote: “Client has frequent bouts of anxiety, depression, anger, and mood lability, which negatively affect his ability to function in a work environment. Id. She felt Plaintiff was able to manage benefits in his own best interest. Id.
C. The Administrative Proceedings
1. The Administrative Hearing
a. Plaintiff's Testimony
At the hearing on September 30, 2019, Plaintiff testified he lived in a house with his two-year-old daughter and seven-year-old son. Tr. at 93. He said he drove his son one mile to school each day. Id. He denied being able to lift his daughter, who weighed 23 pounds. Id. He said his daughter stayed with him during the day while her mother worked. Tr. at 93-94. He indicated he would take his daughter to a park that was a block away if he was having a good day. Tr. at 94. He admitted he drove, but sometimes had difficulty doing so when he experienced cramping in his leg and ankle. Id. He estimated this occurred three to four times a month. Tr. at 94-95.
Plaintiff testified he underwent right hip replacement the prior December. Tr. at 95. He said he was able to do fewer activities since the surgery. Id. He stated he had been able to run prior to the surgery, but could no longer do so. Id.
Plaintiff admitted he had worked for Greenwood Machine and Tool in 2018. Tr. at 96. He said he was grinding train parts. Id. He indicated he worked eight hours a day for less than six months. Id. He stated he subsequently worked at Pizza Inn, where he was rolling pizza dough. Id. He indicated he worked three or four hours a day on three to four days per week, leaving to undergo surgery. Tr. at 96-97, 105.
Plaintiff testified he also experienced pain in his knee, ankles, left hip, and wrists. Tr. at 97. He said he had first noticed problems with his left hip in 2003. Id. He stated his pain was worse in his right wrist than his left and admitted he was right-handed. Id. He noted he sometimes had difficulty using his hands to lift and pick up items. Id.
Plaintiff said a loaf of bread was the heaviest item he could lift, but admitted he could lift a gallon of milk if his pain was not too bad. Tr. at 98. He estimated he could walk for 15 minutes, stand for 15 to 20 minutes, and sit for about 15 minutes. Id. He stated he had difficulty putting on his shoes, pants, and underwear approximately three to four times a month. Tr. at 98- 99. He confirmed that he used a cane in his left hand and had been doing so since his surgery the prior December. Tr. at 99. He stated his physician had recommended he use a cane, but had not prescribed one. Id. He denied using the cane all the time, but noted he used it when he was not feeling well and when his leg was bothering him. Id.
Plaintiff testified his medication caused drowsiness and sleepiness. Id. He said he slept for about five hours during the night. Id. He denied napping during the day because he provided care for his daughter. Tr. at 100. He said he might wash dishes twice a month. Id. He stated his wife prepared most meals, but he occasionally cooked. Id. He said he prepared sandwiches and heated food in the microwave for his daughter. Id.
Plaintiff testified he had undergone a prior right hip surgery after being injured in an MVA in 2003. Tr. at 101. He said he experienced swelling once or twice a month in his bilateral ankles and calves. Id. He indicated the swelling sometimes lasted for three to four days. Id. He said he would sometimes take hot baths with Epsom salt and elevate his legs at waist-height for three or more hours, three to four times a day. Tr. at 101-02. He denied having undergone surgery to his left hip. Tr. at 102. He confirmed that he had sustained a TBI in the 2003 MVA. Id.
Plaintiff testified he saw a psychiatrist at Benton Center every three months. Tr. at 103. He said he saw a therapist every two weeks. Id. He indicated they were treating his depression, anxiety, anger, and grief. Id. He stated he felt depressed a lot and was often irritable and mean. Id. He described feeling frustrated with his children's mother. Id. He said they were not married, but had been together for 20 years. Tr. at 104.
Plaintiff said he experienced problems with short-term memory. Id. He indicated he sometimes forgot where he was going while he was driving. Id. He stated he had a short attention span and difficulty focusing. Id. He noted he was fired from a job after getting into a fight with a coworker. Tr. at 104- 05. He said he had less difficulty in his job at Pizza Inn because he was only required to work four-hour shifts. Tr. at 105. He testified he could watch television for 15 to 20 minutes at a time prior to having to get up. Id.
b. Vocational Expert Testimony
Vocational Expert (“VE”) Allison Shipp, Ph.D., reviewed the record and testified at the hearing. Tr. at 106-09. The ALJ described a hypothetical individual of Plaintiff's vocational profile who could engage in work as follows: sedentary work requiring lifting of 10 pounds occasionally, lifting less than 10 pounds frequently, sitting up to six hours in an eight-hour workday, and standing or walking up to two hours in an eight-hour workday; no use of ladders; occasional balancing, stooping, crouching, kneeling, crawling, and stair climbing; no exposure to unprotected heights or dangerous moving machinery; occasional exposure to respiratory irritants; occasional exposure to extreme heat, extreme cold, and vibration; low stress-work, defined as having no team-dependent or fast-paced production requirements and only simple work-related decisions; occasional contact with the public; and occasional changes in the workplace and/or work methods. Tr. at 107. The VE testified that the hypothetical individual could perform sedentary jobs with a specific vocational preparation (“SVP”) of two as a final assembler, Dictionary of Occupational Titles (“DOT”) No. 713.687-018, a document preparer, DOT No. 249.587-018, and an electronics assembler, DOT No. 726.684-110, with 25, 000, 91, 000, and 12, 000 positions in the national economy, respectively. Tr. at 107-08.
The ALJ asked the VE to consider that the individual would need to elevate one or both legs to waist-level during the workday, over periods outside of normal breaks. Tr. at 108. She asked if the previously-identified jobs or any others would be available. Id. The VE testified there would be no jobs. Id.
The ALJ asked the VE to consider that the individual could not consistently maintain attention and focus or stay on task for as long as two hours at a time and would require breaks in addition to 15-minute morning and afternoon breaks and a 30-minute lunch break. Id. She asked if there would be jobs available. Id. The VE stated there would be no jobs. Id.
The ALJ asked the VE to consider that the individual would not be able to consistently work eight hours a day, five days a week and would miss two or more days of work per month. Id. She asked if there would be any jobs available. Id. The VE testified there would be no jobs. Id.
The ALJ asked the VE if her testimony had been consistent with the DOT. Id. The VE stated it had been, but noted her testimony as to interaction with others, low-stress environment, elevation of the legs, behavior, and absenteeism had been based on her knowledge, education, and experience, as such issues were not addressed in the DOT. Id.
Plaintiff's attorney asked the VE to consider that the individual would have to elevate his legs to waist-height or higher for 15-20% of the workday on three to four days per month. Tr. at 108-09. The VE testified there would be no jobs that would accommodate such a restriction. Tr. at 109.
2. The ALJ's Findings
In her decision dated November 1, 2019, the ALJ made the following findings of fact and conclusions of law:
1. The claimant has not engaged in substantial gainful activity since October 31, 2016, the application date (20 CFR 416.971 et seq.).
2. The claimant has the following severe impairments: right hip degenerative joint disease (DJD), status-post hip replacement with residual pain; left hip DJD; emphysema; depression; anxiety; and post-traumatic stress disorder (PTSD) (20 CFR 416.920(c)).
3. 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 416.920(d), 416.925 and 416.926).
4. 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 416.967(a). He cannot use ladders, but can occasionally balance, climb stairs, stoop, crouch, kneel and crawl. He can have no exposure to unprotected heights or dangerous moving machinery; and occasional exposure to respiratory irritants, extreme heat, extreme cold and vibration. Claimant can perform low stress work with low stress defined as jobs having no team-dependent or fast-paced requirements and which involve only simple work-related decisions; he can have occasional contact with the public; and can tolerate occasional change in work place and/or work methods.
5. The claimant is unable to perform any past relevant work (20 CFR 416.965).
6. The claimant was born on April 3, 1974 and was 42 years old, which is defined as a younger individual age 18-44 on the date the application was filed. The claimant subsequently changed age category to a younger individual age 45-49 (20 CFR 416.963).
7. The claimant has a limited education and is able to communicate in English (20 CFR 416.964).
8. 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).
9. 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 416.969 and 416.969(a)).
10. The claimant has not been under a disability, as defined in the Social Security Act, since October 31, 2016, the date the application was filed (20 CFR 416.920(g)).Tr. at 71-80.
II. Discussion
Plaintiff alleges the Commissioner erred for the following reasons:
1) the ALJ failed to properly assess Plaintiff's RFC; and
2) the ALJ did not adequately evaluate Plaintiff's treating physician's opinion.
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. § 416.920. These considerations are sometimes referred to as the “five steps” of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 416.920(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).
The Commissioner's regulations include an extensive list of impairments (“the Listings” or “Listed impairments”) the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. § 416.925. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, he will be found disabled without further assessment. 20 C.F.R. § 416.920(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. § 416.926; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's past relevant work to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. § 416.920(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, § 416.920(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.” Vitek 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
1. RFC Assessment
Plaintiff argues the ALJ assessed an incomplete RFC, neither including nor explaining her rejection of limitations that were supported by the record. [ECF No. 18 at 17-19]. He maintains the ALJ did not reconcile her RFC assessment with the state agency psychological consultants' opinions that he could “understand and remember simple instructions but could not understand and remember detailed instructions” and could “carry out short and simple instructions but not detailed instructions.” Id. at 19. He contends the ALJ's error was not remedied by her reliance on jobs with an SVP of 2 because an SVP of 2 does not address inability to understand, remember, and carry out detailed instructions. [ECF No. 22 at 1-2].
The Commissioner argues that even if the ALJ erred in failing to limit Plaintiff to simple instructions, her error would be harmless because she found he could perform unskilled jobs with an SVP of 2. [ECF No. 20 at 9- 10].
ALJs must use the special technique in 20 C.F.R. § 416.920a in all cases involving mental impairments. If the ALJ concludes that the claimant has a severe mental impairment, she must rate the degree of the claimant's functional limitation as none, mild, moderate, marked, or extreme based on the extent to which his impairment interferes with his ability to function independently, appropriately, effectively, and on a sustained basis in the broad mental functioning areas of understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. 20 C.F.R. § 416.920a(b), (c)(2), (3), (4).
Pertinent to Plaintiff's argument, evaluation of a claimant's ability to understand, remember, or apply information:
[R]efers to the abilities to learn, recall, and use information to perform work activities. Examples include: understanding and learning terms, instructions, procedures; following one- or two-step oral instructions to carry out a task; describing work activity to someone else; asking and answering questions and providing explanations; recognizing a mistake and correcting it; identifying and solving problems; sequencing multi-step activities; and using reason and judgment to make work-related decisions.20 C.F.R. Pt. 404, Subpt. P, App'x 1 § 12.00(E)(1). Although “[t]hese examples illustrate the nature of this areas of mental functioning, ” the ALJ is not required to document all the examples. Id. The ALJ should assess mild limitation if the claimant's “functioning in this area independently, appropriately, effectively, and on a sustained basis is slightly limited.” 20 C.F.R. Pt. 404, Subpt. P, App'x 1 § 12.00(F)(2)(b). She should assess moderate limitation if the claimant's “functioning in this area independently, appropriately, effectively, and on a sustained basis is fair.” 20 C.F.R. Pt. 404, Subpt. P, App'x 1 § 12.00(F)(2)(c).
Prior to proceeding to steps four and five, the ALJ must assess the claimant's RFC. 20 C.F.R. § 416.920(e). If the mental impairment is severe, but does not meet or equal a listed impairment, “the ALJ must assess the claimant's RFC in light of how the impairment constrains the claimant's work abilities.” Patterson v. Commissioner of Social Security Administration, 846 F.3d 656, 659 (4th Cir. 2017) (citing 20 C.F.R. §§ 404.1520(e), 404.1520a(d)(3)). The ALJ must “consider all of the claimant's ‘physical and mental impairments, severe and otherwise, and determine, on a function-by-function basis, how they affect [the claimant's] ability to work.'” Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019) (quoting Monroe v. Colvin, 826 F.3d 176, 188 (4th Cir. 2016)).
“A proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion. Id. The ALJ cannot neglect the second component, as “[a] necessary predicate to engaging in substantial evidence review is a record of the basis for the ALJ's ruling, ” including “a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence.” Radford v. Colvin, 734 F.3d 288 (4th Cir. 2013). Thus, the ALJ must include a narrative discussion that cites “specific medical facts (e.g., laboratory findings), and non-medical evidence (e.g., daily activities, observations)” and explains how all the relevant evidence supports each conclusion. SSR 96-8p, 1996 WL 374184, at *7.
The ALJ acknowledged the special technique in 20 C.F.R. § 416.920a insomuch as she cited the four broad areas of mental functioning, explained the meaning of “marked” and “extreme limitation, ” and indicated the degree of functional limitation she found in each of the four areas. See Tr. at 72. She indicated she had assessed mild limitation in understanding, remembering, or applying information and moderate limitation in the other three areas of mental functioning. Id. The ALJ did not independently explain the degree of functional limitation she found in each of the four areas, but collectively explained:
In making these findings I note that the clamant presented generally unremarkably at ¶ 2017 consultative examination, as he was noted to have a happy smile and no suggestion of affective or mood disorder problems in spite of his allegations of having such issues. His grooming, attire and hygiene were also all normal (Exhibit B3F). Similarly, when the claimant reported to the hospital after injuring himself at work in June of 2018, he was noted to have a normal mood, affect and behavior, even at this stressful time (Exhibit B10F). The record shows that the claimant receives outpatient treatment at a church, but this treatment focuses on his history of substance abuse (heroin, cocaine, alcohol and cannabis) rather than depression, anxiety and PTSD (Exhibits B11F; B15F). Moreover, these treatment records show that he presents quite unremarkably, as he is fully alert and oriented with a normal appearance, cooperative attitude, calm behavior, normal speech and eye contact, intact thought content, logical and goal directed thought processes, a euthymic mood, appropriate affect, intact attention, concentration, recent and remote memory, fair insight and
judgment and no hallucinations, delusions, paranoia, suicidal ideation etc. (Exhibit B11F). These findings are repeated every four months at the claimant's regularly scheduled mental health appointments, regardless of whether the claimant is compliant with psychotropic medication or remains sober (Exhibit B15F). Recent treatment records confirm that the claimant continues to present with normal mental status examinations, and his orthopedic doctor indicated that the claimant does not have any mental health impairments (Exhibit B19F; B22F; B23F). This evidence is discussed in greater detail below in connection with the residual functional capacity.
Collectively, this evidence is consistent with moderate limitations in interacting with others, concentrating, persisting, or maintaining pace, and in adapting or managing oneself. There are no findings that reasonably support more than mild limitations in understanding, remembering and applying information.Tr. at 73.
The ALJ considered Plaintiff's mental functional limitations in the RFC assessment to the extent that she found he could “perform low stress work with low stress defined as jobs having no team-dependent or fast-paced requirements and which involve only simple work-related decisions; he can have occasional contact with the public; and can tolerate occasional changes in work place and/or work methods.” Tr at 74. In explaining her RFC assessment, the ALJ cited a “generally normal” 2017 consultative exam, indications that Plaintiff was “pleasant and cooperative” during a September 2017 medical appointment, his reports and the examiner's observations during a November 2017 consultative exam, a normal MSE during a 2017 physical consultative exam, observations during a June 2018 trip to the ER, substance abuse treatment records, and normal MSE findings during mental health appointments. Tr. at 76-77.
Nevertheless, the record contains multiple medical opinions that suggest Plaintiff was limited to understanding, remembering, and carrying out short, simple instructions. State agency psychological consultants Harkness and Neboschick specifically found that Plaintiff could not understand, remember, and carry out detailed instructions, although he was able to understand, remember, and carry out simple instructions. See Tr. at 159-60, 177-78. NP Mearns indicated Plaintiff had “difficulty focusing on complex tasks” and “difficulty completing tasks.” Tr. at 372. NP Holland stated Plaintiff was occasionally capable of understanding, remembering, or carrying out detailed, but not complex jobs instructions, and rarely capable of understanding, remembering, and carrying out complex job instructions. Tr. at 1554.
The ALJ gave “some weight” to the state agency psychological consultants' opinions. Tr. at 77. She did not find that the record supported their assessment of moderate limitations in understanding, remembering, or applying information. Id. She gave limited weight to NP Mearns's opinion, stating her opinion that Plaintiff had poor ability for complex tasks or simple, routine tasks due to issues with focus was not supported in the medical record. Tr. at 78. She gave little weight to NP Holland's opinion, stating her conclusions contained little narrative support, were inconsistent with the medical record showing unremarkable MSEs and intact ADLs, and were vague and overly-limiting. Id.
Despite statements from two treating nurse practitioners and two state agency psychological consultants indicating Plaintiff had impaired ability to understand, remember, and carry out detailed instructions, the ALJ declined to include such a restriction in the RFC assessment. She provided reasons for giving “some, ” “limited, ” or “little” weight to the opinions, but failed to cite evidence that directly refuted indications that Plaintiff was impaired as to these functional abilities. Elsewhere in the decision, she cited generally normal findings during multiple exams, but none of the evidence she cited was relevant to Plaintiff's ability to understand, remember, and carry out detailed instructions. See Tr. at 76-77. She did not address Dr. Thompson's observations that Plaintiff lost concentration when attempting to calculate a simple cash transaction; recited the months of the year backwards slowly, but accurately; and counted slowly, but accurately from 20 to one. Tr. at 384. She did not reconcile her rejection of restrictions as to Plaintiff's limited ability to understand, remember, and carry out detailed instructions with Dr. Thompson's observations that Plaintiff's concentration and attention were poor; he seemed to have difficulty with focus; and he required interruption and redirection. Id.
The ALJ neither limited Plaintiff to understanding, remembering, and carrying out short, simple instructions, nor provided adequate reasons for declining to include such a restriction. Although she was not required to include a restriction for short, simple instructions in the RFC assessment, she was required to provide an adequate explanation as to how she resolved evidence that supported such a restriction. See SSR 96-8p, 196 WL 374184, at *7 (providing the narrative discussion of the RFC assessment must “explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved). Her failure to do either constitutes error.
Such error may be harmless, provided the ALJ reached the same conclusion she would have reached if she had included the additional restrictions in the RFC assessment. See Mickles v. Shalala, 29 F.3d 918, 921 (4th Cir. 1991) (explaining error is harmless where the ALJ conducts the proper analysis in a comprehensive fashion, cites substantial evidence to support her finding, and would have reached the same result notwithstanding the error). Thus, the ALJ's error may be deemed harmless if she reached the same conclusion at step five that she would have reached if she had included a restriction for short, simple instructions in the RFC assessment.
The undersigned has reviewed the DOT's descriptions of the jobs the ALJ found Plaintiff could perform as a final assembler, a document preparer, and an electronics assembler. See Tr. at 80. Contrary to the Commissioner's argument, it is not the SVP that matters in assessing whether the error was harmless, but the general educational development (“GED”) reasoning level. As this court explained in Boddie v. Saul, C/A No. 6:19-2375-MGL-KFM, 2020 WL 7870878, at *5 (D.S.C. Dec. 7, 2020); adopted by 2021 WL 22462 (Jan. 4, 2021):
The SVP is defined as “the amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation” and is rated on a scale of 1 to 9, with 1 being the least amount of time necessary to learn a job, “short demonstrations only, ” and 9 being “over 10 years.” DOT, App'x C, 1991 WL 688702. On the other hand, GED levels refer to the “education of a general nature[, ] which does not have a recognized, fairly specific occupational objective” and are ranked on a scale of 1 to 6, with 1 being the lowest. Id.
The DOT describes the job of final assembler as having a GED reasoning level of 1, requiring the individual “[a]pply commonsense understanding to carry out simple one- or two-step instructions” and “[d]eal with standardized situations with occasional or no variables in or from these situations encountered on the job.” 713.687-018, FINAL ASSEMBLER. DOT (4th Ed., Rev. 1991). 1991 WL 679271 (1991). It describes the job of document preparer as having a GED reasoning level of 3, requiring the individual “[a]pply commonsense understanding to carry out instructions furnished in written, oral or diagrammatic form” and “[d]eal with problems involving several concrete variables in or from standardized situations.” 249.587-018, DOCUMENT PREPARER, MICROFILMING. DOT (4th Ed., Rev. 1991) 1991 WL 672349 (1991). It describes the job of electronics assembler has having a GED reasoning level of 2, requiring the individual “[a]pply commonsense understanding to carry out detailed but uninvolved written or oral instructions” and “[d]eal with problems involving a few concrete variables in or from standardized situations.” 726.684-110, TOUCH-UP SCREENER, PRINTED CIRCUIT BOARD ASSEMBLY. DOT (4th Ed., Rev. 1991), 1991 WL 679616 (1991).
Because the job of document preparer has a GED reasoning level of 3 and the job of electronics assembler has a GED reasoning level of 2, these jobs appear to conflict with a restriction for short, simple instructions. See Thomas, 916 F.3d at 313-14 (finding an apparent conflict existed between the claimant's RFC, which limited her to jobs involving “short, simple instructions, ” and GED reasoning level 2's concept of “detailed but uninvolved instructions”); Keller v. Berryhill, 754 Fed.Appx. 193, 198 (4th Cir. 2018) (“Because Level 3 is more demanding than Level 2 by the very nature of the Reasoning Development Scale, it appears that Level 3 jobs require more than the ability to carry out short and simple instructions. That determination is also supported by the fact that-unlike the definitions of Levels 1 and 2-Level 3's definition places no explicit limitation on the complexity of the instructions to be carried out; instead, Level 3 describes only the form of those instructions.”).
The job of final assembler does not appear to conflict with a restriction to short, simple instructions. The regulation provides that “[w]ork exists in the national economy where there is a significant number of jobs (in one or more occupations) having requirements which [the claimant] is able to meet with [his] physical or mental abilities and vocational qualifications.” 20 C.F.R. § 416.966(b) (emphasis added). Although the regulations do not define “significant numbers, ” the Fourth Circuit has found jobs existed in significant numbers even though a relatively small number of jobs existed. See Hicks v. Califano, 600 F.2d 1048, 1051 n.2 (4th Cir. 1979) (“We do not think that the approximately 110 jobs [in the regional economy] testified to by the VE constitute an insignificant number”); Koonce v. Apfel, 166 F.3d 1209 (Table), 1999 WL 7864, at *5 (4th Cir. 1999) (noting that even if the VE overestimated the number of jobs, there would still be hundreds of jobs available, which would serve as significant numbers); Hyatt v. Apfel, 153 F.3d 720 (Table), 1998 WL 480722, at *3 (4th Cir. 1998) (finding 650 jobs in the state economy served as significant numbers). The ALJ relied on the VE's identification of approximately 25, 000 final assembler jobs to meet the Commissioner's burden at step five. Tr. at 80. In light of the cases discussed above, the existence of 25, 000 positions suggests the job exists in significant numbers in the national economy. Because the ALJ found Plaintiff could perform the job of final assembler, which existed in significant numbers and did not require he understand, remember, or carry out detailed instructions, her error in assessing the RFC did not affect her conclusion at step five and was, therefore, harmless.
2. Medical Opinion
On September 19, 2019, Dr. Powell completed a physician questionnaire. Tr. at 1557-60. He represented his first contact with Plaintiff occurred on November 12, 2018. Tr. at 1557. He identified Plaintiff's diagnosis as posttraumatic arthritis of the right hip status post-total hip arthroplasty with fair prognosis. Id. He declined to characterize the nature, location, frequency, precipitating factors, and severity of Plaintiff's pain; identify the clinical findings and objective signs; and describe the treatment and response, including the side effects of medication. Id. He indicated Plaintiff's impairments had lasted or could be expected to last at least 12 months. Id. He noted Plaintiff's experience of pain or other symptoms was constantly severe enough to interfere with attention and concentration needed to perform even simple work tasks. Tr. at 1558. He considered Plaintiff capable of performing low stress jobs. Id. He estimated Plaintiff could walk two city blocks without rest or severe pain, sit 15 minutes at a time, stand one hour at a time, sit for less than two hours in an eight-hour workday, and stand for less than two hours in an eight-hour workday. Id. He indicated Plaintiff would need to walk around for five minutes out of every 60-minute period. Id. He stated Plaintiff would sometimes require unscheduled breaks during an eight-hour workday. Tr. at 1559. He noted Plaintiff's legs should be elevated 15-20% of the workday when engaging in prolonged sitting. Id. He felt that Plaintiff could frequently lift less than 10 pounds and occasionally lift up to 20 pounds. Id. He indicated Plaintiff could occasionally twist and stoop, but never crouch/squat or climb stairs or ladders. Id. He estimated Plaintiff would be absent from work about twice a month due to his impairments or treatment. Tr. at 1560.
Plaintiff argues the ALJ failed to properly evaluate Dr. Powell's opinion, which supported work-preclusive limitations. [ECF No. 18 at 20-22]. He maintains the ALJ provided only a general conclusory statement as reason for rejecting Dr. Powell's opinion. Id. at 21. He contends the ALJ referenced Plaintiff's improvement following right hip replacement, but ignored the other problems Dr. Powell cited as causing additional impairment. Id. at 21-22; ECF No. 22 at 5. He claims the Commissioner erroneously asserts the ALJ rejected the restrictions Dr. Powell provided because she did not believe his restrictions would be disabling for at least 12 months. [ECF No. 22 at 4-5]. He contends the Commissioner referenced evidence the ALJ did not use to support her opinion, including information about work he performed after the ALJ's decision, the length of the treatment relationship, and Dr. Powell's having left blanks on the form and failed to provide medical findings and explanation to support his opinion. Id. at 5-6. He claims the ALJ ignored Dr. Powell's specialization as an orthopedic surgeon, a factor that weighed in favor of his opinion. Id. at 6.
The Commissioner argues that substantial evidence supports the ALJ's finding that Plaintiff could perform sedentary work. [ECF No. 20 at 10-11]. She maintains the ALJ properly evaluated Dr. Powell's opinion and concluded that Plaintiff would not be precluded from sedentary work for a 12-month period following his surgery. Id. at 11-13. She contends the ALJ cited post-surgical records showing significant improvement, observations from other medical providers, and Plaintiff's testimony as to the care he provided to his two-year-old daughter as contrary to Dr. Powell's opinion. Id. at 13-14. She notes Plaintiff returned to physically demanding work that required he stand for eight to 10 hours per shift and push variable loads only a few months after Dr. Powell rendered his opinion. Id. at 14. She claims the ALJ considered the length of the treatment relationship and the lack of support Dr. Powell provided on the opinion form. Id. at 15. She maintains Dr. Powell's observations as to Plaintiff's left hip pain did not support the restrictions he indicated because he noted the left hip caused no more than “moderate discomfort.” Id.
Because Plaintiff filed his claim for benefits prior to March 27, 2017, the ALJ was required to evaluate the medical opinions of record using the rules in 20 C.F.R. § 416.927 and SSRs 96-2p, 96-5p, and 06-3p. See 20 C.F.R. § 416.920c (stating “[f]or claims filed before March 27, 2017, the rules in 20 C.F.R. § 416.927 apply”); see also 82 Fed.Reg. 15, 263 (stating the rescissions of SSR 96-2p, 96-5p, and 06-3p were effective for “claims filed on or after March 27, 2017”).
The applicable regulation and SSR create what courts have recognized as a “treating physician rule.” See Dowling v. Commissioner of Social Security Administration, 986 F.3d 377, 384 (4th Cir. 2021); see also 20 C.F.R. § 416.927(c)(2); SSR 96-2p. Under this rule, if a treating physician's medical opinion is well supported by medically-acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence of record, the ALJ is required to accord it controlling weight. 20 C.F.R. § 416.927(c)(2). “Treating physicians are given ‘more weight . . . since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings along[.]” Lewis v. Berryhi l
, 858 F.3d 858, 867 (4th Cir. 2017) (quoting 20 C.F.R. § 404.1527(c)(2)).
“[T]he ALJ holds the discretion to give less weight to the testimony of a treating physician in the face of persuasive contrary evidence.” Mastro v. Apfel, 270 F.3d 174 (4th Cir. 2011) (citing Hunter v. Su livan, 993 F.2d 31, 35 (4th Cir. 1992)). However, she cannot reject a treating physician's opinion entirely just because it does not deserve controlling weight.” SSR 96-2p, 1996 WL 374188, at *4 (1996). If the ALJ declines to accord controlling weight to the treating physician's opinion, she is required to weigh that opinion and the other medical opinions of record based on the following factors: (1) the examining relationship; (2) the treatment relationship, to include the length of the treatment relationship and frequency of examination and the nature and extent of the treatment relationship; (3) the supportability of the medical source's opinion in his own records, to include corroborating medical signs and laboratory findings and explanation for the opinion; (4) the consistency of the source's opinion with the record as a whole; (5) the specialization of the medical source offering the opinion, particularly if he is opining about medical issues related to his area of specialty; and (6) any other relevant factors that tend to support or contradict the medical source's opinion. 20 C.F.R. § 416.927(c)(1)-(6).
Unless the ALJ finds the claimant is disabled within the meaning of the Act, her decision “must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, ” and must be “sufficiently specific to make clear” to the court “the weight [she] gave to the opinion . . . and the reason for that weight.” SSR 96-2p, 1996 WL 374188, at *5 (1996).
The ALJ addressed Dr. Powell's opinion as follows: “The [medical source statement] completed by the claimant's orthopedic doctor, Dr. Powell, in September of 2019 is given some weight (B19F). Dr. Powell first saw claimant in November 2018, and the record before me does not support the permanent restrictions to less than sedentary work set by Dr. Powell.” Tr. at 78.
In accordance with 20 C.F.R. § 416.927(c), the ALJ acknowledged the examining relationship, the relative brevity of the treatment relationship, and Dr. Powell's specialization in noting he was Plaintiff's orthopedic doctor, who first saw him in November 2018. See Tr. at 78. She found the evidence supported an RFC for a reduced range of sedentary work, but not as reduced a range as Dr. Powell suggested. See Id. Viewed in isolation, the ALJ's statement that the record did not support the restrictions is conclusory. However, it is important to note the ALJ discussed her weighing of Dr. Powell's opinion after discussing other evidence that was pertinent to her evaluation of the treatment relationship, the supportability of Dr. Powell's opinion in his records, and the consistency of his opinion with the other evidence.
The ALJ's decision indicates she considered some evidence to be inconsistent with the restrictions Dr. Powell provided. She noted that during the February 2017 consultative exam, Plaintiff presented with a normal gait and station, had no difficulty dressing, undressing, or getting on or off the exam table, and demonstrated normal posture, some tenderness just below S2, mildly limited ROM of the lumbar spine, no edema, straight-leg raise to 90 degrees, leg-length discrepancy, 5/5 grip strength bilaterally, normal fine and gross manipulation, normal toe and tandem walk, 4/5 heel walk, 4/5 squat, 5/5 muscle strength, normal upper and lower extremities, normal ROM of the hips, and intact sensation, except for decreased sensation to light touch to the right digits. Tr. at 75. She cited Plaintiff's report that he was independent in personal care, performed household chores, shopped in stores, mowed his grass, and enjoyed listening to music. Id. She stated Plaintiff established treatment in late-2017 with a doctor who noted “he presented as fit and muscular with a normal gait, intact sensation and strength in all extremities, a normal back, no edema and a full range of motion throughout, with the exception of his right hip.” Id. She noted an updated x-ray of Plaintiff's right hip showed no acute changes in September 2018, and he had no edema and normal strength, sensation, reflexes, and ROM during an ER visit. Id. She recounted that Plaintiff had normal ROM with intact sensation, strength, and reflexes during a recent hospital visit for chest pain. Tr. At 76. She cited Plaintiff's November 2017 report that he had no difficulty with his personal care and ADLs, spent his days babysitting for two children while his girlfriend worked, enjoyed exercising and swimming at the YMCA, drove, and was active in his church and church community. Id. She wrote:
As noted above, the claimant has worked part-time and cared for his children on a regular basis since the alleged onset date. Additionally, the record shows the claimant to be generally independent in his activities of daily living. Thus, to the extent the claimant alleges that he is unable to perform sedentary work with postural, environmental, mental and social restrictions, his allegations are simply not consistent with the record for the reasons explained above.Tr. at 77.
The ALJ also referenced evidence that was more consistent with Dr. Powell's opinion and that supported the RFC for a reduced range of sedentary work that she assessed. She noted August 2017 x-rays of Plaintiff's hips showed severe osteoarthritis of the right hip, moderate osteoarthritis of the left hip, and stable hardware from the ORIF surgery. Tr. at 75. She noted Plaintiff was initially scheduled to undergo hardware removal and right hip replacement in May 2018, given his ongoing right hip pain and medical history. Id. She wrote:
An examination at that time noted pain, tenderness and a reduced range of motion of the right hip, and an updated x-ray of the claimant's hips noted post-traumatic end-stage arthritis of the right hip and moderately advanced osteoarthritis of the left hip (Exhibit B12F). A full hip replacement was discussed at that time, and the claimant even received pre-operative clearance to proceed in July of 2018, but he did not have the operation at that time (Exhibits B12F; B16F).Id. She indicated Plaintiff had tenderness and reduced ROM in the right hip when he presented to the ER in September 2018. Id.
The ALJ discussed Dr. Powell's records as follows, which is pertinent to her consideration of the treatment relationship and the supportability of his opinion:
The claimant finally underwent his right hip replacement in December of 2018, followed by physical therapy. These treatment notes, which are quite voluminous with many duplicates, show that the surgery went well and that he progressed successfully with at-home therapy after discharge (Exhibits B17F; B20F; B21F). Post-surgical radiographs also show good positioning with normal alignment and no complications, and the claimant admitted that his hip pain improved, and turned his attention to other joint pains in his body (Exhibit B21F; B22F).Tr. at 75-76.
The undersigned declines to consider the records submitted to the Appeals Council in assessing the ALJ's consideration of Dr. Powell's opinion. Because these records were not before the ALJ, she could not have considered them in weighing Dr. Powell's opinion. Dr. Powell's last treatment note in the record before the ALJ was dated July 8, 2019. See Tr. at 1607.
A comparison of Dr. Powell's relevant treatment notes and the ALJ's summary of those notes are generally consistent. Compare Tr. at 75-76, with Tr. at 640, 658, 667, 676, 967-68, 1607. Dr. Powell's records for the period following the surgery reflect his observations of well-healed wounds, no pain with motion of the right hip, no right knee effusion, intact circulation and sensation in the legs, equal limb length, good ROM, and intact motor strength. Tr. at 658, 667, 676, 1607, Plaintiff generally reported improved strength and functioning following the surgery, but some discomfort. Id. The July 2019 x-rays showed well-fixed components, no evidence of avascular necrosis, and reduced hip. Tr. at 1607. Therefore, the undersigned finds the ALJ adequately considered the treatment relationship and the supportability of Dr. Powell's opinion in his records.
Although Plaintiff argues the ALJ erred in failing to acknowledge that the restrictions Dr. Powell indicated were based on more than his right hip arthritis and arthroplasty, his argument is undermined by the opinion itself, which indicates only a diagnosis of posttraumatic arthritis of the right hip status post-total hip arthroplasty and fails to reference any other impairments. Tr. at 1557. Dr. Powell noted decreased left hip motion “of a marginal degree” during the November 12, 2018 exam. Tr. at 640. However, he did not document abnormal findings pertaining to anything other than Plaintiffs right hip in subsequent records over the relevant period. See Tr. at 658, 667, 676, 1607.
In light of the foregoing, the undersigned recommends the court find that substantial evidence supports the ALJ's finding that Dr. Powell's opinion was not entitled to controlling weight; her weighing of the opinion based on the factors in 20 C.F.R. § 416.927(c); her allocation of “some weight” to the opinion in assessing an RFC for sedentary work; and her conclusion that not all the restrictions were supported by or consistent with the evidence of record.
III. Conclusion and Recommendation
The court's function is not to substitute its own judgment for that of the Commissioner, but to determine whether his 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).