Opinion
Civil Action 2:23-cv-02228-DCC-MGB
06-18-2024
AMANDA G.,[1]Plaintiff, v. MARTIN O'MALLEY,[2]Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Plaintiff Amanda G., (“Plaintiff”), brought this action pursuant to Section 205(g) of the Social Security Act, as amended, (42 U.S.C. Section 405(g)), to obtain judicial review of a final decision of the Commissioner of Social Security Administration regarding her claim for Disability Insurance Benefits (“DIB”) under the Social Security Act (the “Act”). See Section 205(g) of the SSA, as amended, 42 U.S.C. § 405(g). This matter was referred to the Magistrate Judge for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and Title 28, United States Code, Section 636(b)(1)(B). For the reasons set forth herein, the undersigned recommends reversing the decision of the Commissioner and remanding for further consideration.
RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS
Plaintiff was 48 years old on her date last insured, September 30, 2020. (R. at 1427.) Plaintiff claims disability due to, inter alia, psoriatic arthritis, fibromyalgia, severe anxiety depression with insomnia, severe panic attack, osteoarthritis, severe migraines, permanent nerve damage in neck with severe pain, severe neuropathy, spondylopathy, and liver damage. (R. at 228.) Plaintiff has past relevant work as an administrative assistant, appointment clerk, cash accounting clerk, outpatient admitting clerk, and a benefits manager. (R. at 1426.)
Plaintiff filed an application for DIB on March 29, 2016, alleging a disability onset date of September 5, 2015. (R. at 1481.) Her application was denied initially and on reconsideration. (R. at 1481.) After a hearing before an Administrative Law Judge (“ALJ”) on November 26, 2018, the ALJ issued a decision on April 11, 2019, in which the ALJ found that Plaintiff was not disabled. (R. at 1481-94.) After the Appeals Council declined the request for review (R. at 1500-03), Plaintiff filed an action in the United States District Court for the District of South Carolina. On February 11, 2022, the District Court remanded the action for further proceedings. (R. at 150616).
Based on the District Court's Order, the Appeals Council vacated the ALJ's decision and remanded the case on June 16, 2022. (R. at 1521-25.) A telephone hearing was held on November 18, 2022, before the same ALJ who had issued the April 11, 2019 decision. (R. at 1417.) On January 24, 2023, the ALJ issued a decision finding Plaintiff was not disabled. (R. at 1417-28.) The January 2023 decision is the Commissioner's final decision for purposes of judicial review.
In making the determination that the Plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant last met the insured status requirements of the Social Security Act on September 30, 2020.
(2) The claimant did not engage in substantial gainful activity during the period from her alleged onset date of September 5, 2015 through her date last insured of September 30, 2020 (20 CFR 404.1571 et seq.).
(3) Through the date last insured, the claimant had the following severe impairments: degenerative disc disease, psoriatic arthritis, polyarthritis, degenerative joint disease of the right knee, migraines, bilateral carpal
tunnel syndrome, peripheral neuropathy, obesity, bipolar I disorder, major depressive disorder, anxiety disorder, and somatoform disorder/conversion disorder/pain disorder (20 CFR 404.1520(c)).
(1) Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526).
(2) After careful consideration of the entire record, I find that, through the date last insured, the claimant had the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) except she can lift and/or carry ten pounds occasionally, less than ten pounds frequently; can sit for 6 hours in an eight-hour day and stand and/or walk two hours in an eight-hour day; she can push/pull as much as she can lift/carry, except she can operate foot controls with right foot occasionally and with the left foot frequently; she can operate hand controls frequently bilaterally; she can frequently reach overhead bilaterally; she can frequently handle bilaterally; she can frequently finger bilaterally; she can occasionally feel bilaterally; she can occasionally climb ramps and stairs, never climb ladders, ropes, or scaffolds, occasionally balance, frequently stoop, never kneel, occasionally crouch, and never crawl; she can occasionally be in an environment of unprotected heights and moving mechanical parts; she can sustain concentration, persistence, and pace sufficient to carry out simple instructions in two hour increments with no specific production rate such as assembly line work or work that requires hourly quotas; she would be absent from work one day a month.
(3) Through the date last insured, the claimant was unable to perform any past relevant work (20 CFR 404.1565).
(4) The claimant was born on December 8, 1971 and was 48 years old, which is defined as a younger individual age 45-49 on the date last insured (20 CFR 404.1563).
(5) The claimant has at least a high school education (20 CFR 404.1564).
(6) Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled,” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
(7) Through the date last insured, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that
existed in significant numbers in the national economy that the claimant could have performed (20 CFR 404.1569 and 404.1569a).
(8) The claimant was not under a disability, as defined in the Social Security Act, at any time from September 5, 2015, the alleged onset date, through September 30, 2020, the date last insured (20 CFR 404.1520(g)).(R. at 1417-28.)
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a “disability.” 42 U.S.C. § 423(a). “Disability” is defined in the Act as the inability “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, the Act has by regulation reduced the statutory definition of “disability” to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment which equals an illness contained in the Social Security Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents him from doing substantial gainful employment. 20 C.F.R. § 404.1520. If an individual is found not disabled at any step, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a)(4).
The claimant bears the burden of proof with respect to the first four steps of the analysis. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); Patterson v. Comm'r of Soc. Sec. Admin., 846 F.3d 656, 659 (4th Cir. 2017). Once the claimant has established an inability to return to his past relevant work, the burden shifts to the Commissioner to show that the claimant-considering his age, education, work experience, and residual functional capacity-can perform alternative jobs and that such jobs exist in the national economy. SSR 82-62, 1982 WL 31386, at *3; Grant, 699 F.2d at 191; Pass, 65 F.3d at 1203; Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016).
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the Commissioner supported his findings with substantial evidence and applied the correct law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015); Woods v. Berryhill, 888 F.3d 686, 691 (4th Cir. 2018); Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 94 (4th Cir. 2020); 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). Consequently, the Act precludes a de novo review of the evidence and requires that the court uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988); Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012); Mascio, 780 F.3d at 640; Dowling v. Comm'r of Soc. Sec. Admin., 986 F.3d 377, 383 (4th Cir. 2021); 42 U.S.C. § 405(g).
“Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion.” Dowling, 986 F.3d at 383 (citing Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015)). It is “more than a mere scintilla of evidence but may be less than a preponderance.” Pearson, 810 F.3d at 207 (citing Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012)). In reviewing for substantial evidence, the court does not undertake to “reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ].” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); Hancock, 667 F.3d at 472; Arakas, 983 F.3d at 95; Dowling, 986 F.3d at 383. “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled,” the reviewing court must defer to the ALJ's decision. Shinaberry v. Saul, 952 F.3d 113, 123 (4th Cir. 2020) (citing Hancock, 667 F.3d at 472).
However, the court does not “reflexively rubber-stamp an ALJ's findings.” Dowling, 986 F.3d at 383 (citing Lewis v. Berryhill, 858 F.3d 858, 870 (4th Cir. 2017)). An ALJ may not cherrypick, misstate, or mischaracterize material facts. Arakas, 983 F.3d at 99 (citing Lewis, 858 F.3d at 869). Rather, ALJs “must ‘build an accurate and logical bridge' from the evidence to their conclusions.” Arakas, 983 F.3d at 95 (quoting Monroe, 826 F.3d at 189).
DISCUSSION
Plaintiff argues that the ALJ erred in his assessment of Plaintiff's residual functional capacity (“RFC”) by: (1) failing to explain why Plaintiff could perform frequent handling, fingering, and reaching, in spite of her stage three carpal tunnel syndrome and neuropathy; (2) failing to explain why Plaintiff could sit for six hours during an eight-hour workday; (3) failing to properly evaluate Plaintiff's mental impairments; and (4) failing to properly evaluate medical source opinion evidence. (See generally Dkt. No. 17.) The Commissioner responds that substantial evidence supports the ALJ's finding that Plaintiff's limitations do not preclude all work activity. (Dkt. No. 21.)
The undersigned considers these arguments, below.
A. The ALJ's Decision
The ALJ's decision considers whether Plaintiff was disabled from September 5, 2015, the alleged onset date, through Plaintiff's date last insured, September 30, 2020. The ALJ found that through the date last insured, Plaintiff had the following severe impairments: degenerative disc disease, psoriatic arthritis, polyarthritis, degenerative joint disease of the right knee, migraines, bilateral carpal tunnel syndrome, peripheral neuropathy, obesity, bipolar I disorder, major depressive disorder, anxiety disorder, and somatoform disorder/conversion disorder/pain disorder. (R. at 1419.) At step two, the ALJ found the following impairments to be non-severe: history of thyroid cancer status post thyroidectomy with post-ablative hypothyroidism, hypertension, hyperlipidemia, mesenteric panniculitis, old granulomatous lung disease, endometriosis and ovarian cyst status post-bilateral oophorectomies and ureteral stent placement, and hepatic steatosis. (R. at 1420.) The ALJ found that Plaintiff's fibromyalgia was not a medically determinable impairment. (R. at 1420.) The ALJ stated that he “considered all of the claimant's medically determinable impairments, including those that are not severe, when assessing the claimant's residual functional capacity.” (R. at 1420.)
At step three, the ALJ found, inter alia, that Plaintiff's mental impairments do not meet or medically equal the criteria of listings 12.04, 12.06, and 12.07. The ALJ found that Plaintiff had mild limitations in understanding, remembering or applying information; interacting with others; and adapting or managing oneself; and a moderate limitation in concentrating, persisting, or maintaining pace. (R. at 1421-22.)
The ALJ continued his discussion of Plaintiff's impairments at step four and addressed his reasons for finding Plaintiff could perform sedentary work with certain limitations. (R. at 142226.) The ALJ first described Plaintiff's subjective statements and her hearing testimony as follows:
The claimant alleges disability due to physical and mental impairments that she claims cause stiff and swollen joints, numbness in the upper extremities, pain in the neck and knees, frequent migraine headaches, anxiety, and panic attacks. According to the claimant, her symptoms limit her abilities to sit for extended periods, drive, tolerate crowds, use her hands, stand, and concentrate. She also claims that it takes her hours to get moving, and she requires frequent naps during the day (Testimony; Ex. B5E; B23E).(R. at 1423.)
The ALJ found that while Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms; . . . the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” (R. at 1423.) The ALJ then detailed the record evidence. He discussed an August 16, 2016 consultative physical examination where Plaintiff “reported symptoms of psoriatic arthritis and fibromyalgia, including neck pain, right arm pain, burning and pain in the feet, neuropathic pain and weakness, and limited use of the right hand.” (R. at 1423.) The ALJ stated that the “physical examination findings were generally unremarkable, however.” (R. at 1423.) Here, he noted, inter alia,
She had normal gait without the use of a medical assistive device. She could get on and off the exam table without difficulty. She could get up and out of the chair without difficulty. The patient was observed to dress and undress herself” (Ex. B6F/4). The bilateral hand finger joints were tender, but there was no swelling or deformity (Id.). Grip strength was slightly reduced on the right, but finger to thumb maneuver was normal, and pincer grip was normal (Ex. B6F/5). She could turn a doorknob with her right hand and reach backwards, so her fine and gross manipulative skills appeared good (Id.). Range of motion was normal (Id.). She could walk on her heels and toes and squat (Id.). Motor strength was 5/5 in all extremities (Id.). This objective evidence supports a finding that the claimant could sustain a reduced range of sedentary work in spite of her subjective experience of pain, weakness, and neuropathy.(R. at 1423.)
The ALJ also discussed Plaintiff's November 23, 2016 Physical Work Performance Evaluation, wherein she: (1) “demonstrated the abilities to push 30 pounds, lift 15 pounds, carry 15 pounds, and pull 15 pounds”; and (2) “could frequently sit, stand, and walk and occasionally squat and climb stairs.” (R. at 1423.) While the evaluator concluded Plaintiff “could sustain light work on a full time basis,” the ALJ afforded this opinion “limited weight” because the evidence indicated “it would be difficult for her to tolerate light work.” (R. at 1423.)
Turning to Plaintiff's treatment records, the ALJ noted that Plaintiff “has complained of multiple impairments.” (R. at 1424.) He found that “considering the impairments singly and in combination, [however,] they did not preclude a reduced range of sedentary work.” (R. at 1424.) The ALJ continued,
On June 22, 2016, the claimant presented for neck and arm pain stemming from a motor vehicle accident that occurred in March of 2016 (Ex. B5F/5). Cervical MRI showed moderate to severe foraminal narrowing and multilevel facet arthropathy, but no significant central stenosis (Ex. B5F/8-9). On March 14, 2017, the claimant underwent nerve conduction studies/EMG that revealed bilateral carpal tunnel syndrome, but no cervical radiculopathy (Ex. B13F/21-22). As of May of 2017, gabapentin was helping with her symptoms, and the dose was increased (Ex. B16F/51, 52). The dose was increased again in July of 2017 to help control leg pain (Ex. B16F/42-44). By August of 2017, she felt a little better (Ex. B16F/33). She essentially stopped complaining of neck and upper extremity symptoms after August of 2017. The residual functional capacity accounts for the claimant's cervical degenerative disc disease and carpal tunnel syndrome by limiting her to lifting and carrying up to ten pounds, frequent overhead reaching, handling, and fingering, and occasional feeling. Considering her limited and conservative treatment history and evidently good response to gabapentin, more restrictive limitations were not warranted.
On November 15, 2017, she presented for treatment of bilateral knee pain (Ex. B23F). X-rays showed degenerative and arthritic changes in both knees (Ex. B23F/2). On January 8, 2018, the claimant presented for treatment of right knee pain (Ex. B14F). MRI revealed medial femoral condyle osteochondral defect with edema (Ex. B14F/1; B24F/4). On examination, there was crepitus, tenderness, and positive McMurray's (Ex. B14F/2). She was advised to consider surgery, but she did not follow up (Id.). The residual functional capacity accounts for the claimant's knee impairments by limiting her to two hours of standing/walking with limited climbing and no kneeling or crawling. There is insufficient evidence to support more restrictive limitations. At a subsequent consultative examination, there was no indication that she was incapable of sitting for extended periods or that her pain was severe enough to limit time on task or attendance. Rather, her cognitive functioning was intact, and there was no indication of debilitating pain (Ex. B27F/3).
On June 11, 2018, she underwent a complete foot exam that revealed diminished tactile sensation with monofilament testing throughout both feet (Ex. B18F/5). The residual functional capacity accounts for this impairment by limiting standing, walking, balancing, climbing, and operation of foot controls. There is no evidence that more restrictive limitations are warranted.(R. at 1424.)
The ALJ further considered the evidence relevant to Plaintiff's migraines and mental impairments. (R. at 1424-25.) When considering Plaintiff's mental impairments, the ALJ discussed treatment records spanning from May 26, 2017 through May of 2019. (R. at 1425.) More specifically, he stated,
As for her mental impairments, on May 26, 2017, the claimant entered treatment for bipolar disorder (Ex. B21F). On October 26, 2017, she underwent a psychiatric evaluation for depression (Ex. B11F/1). She was prescribed Vraylar along with Cymbalta and Klonopin (Ex. B11F/2). By January of 2018, she reported feeling better (Ex. B11F/3). As of March of 2018, her mood was stable, and she had no racing thoughts (Ex. B11F/5). On February 13, 2019, she reported worsening depression to her therapist, and she was encouraged to use coping skills (Ex. B29F/1). On March 18, 2019, she complained of anxiety and somatic symptoms (Ex. B29F/3). She was prescribed Vistaril (Ex. B29F/4). On April 11, 2018, the claimant was hospitalized with weakness and numbness in her face (Ex. B28F/7). MRI revealed no evidence of a stroke, and she was diagnosed with conversion disorder (Ex. B28F/11-12). As of May of 2019, her symptoms were better (Ex. B29F/8). On examination, her appearance was within normal limits; attitude was cooperative; behavior was calm; speech was normal; associations were intact; thought process was logical/goal directed; she denied delusions, suicidal ideation, homicidal ideation, obsessions, and hallucinations; recent and remote memory was intact; concentration was intact; insight and judgment were good; fund of knowledge was average (Ex. B11F/3, 5; B19F; B29F/3, 8). This evidence indicates that her mental impairments caused only moderate functional limitations and responded well to conservative treatment.(R. at 1425.)
The ALJ further considered a January 8, 2019 consultative psychological examination wherein, inter alia, Plaintiff was “slow to ambulate and appeared uncomfortable when standing”; she “reported daily depression with low energy, difficulty falling asleep, racing thoughts, irritability, and crying spells”; and “she reported episodes of anxiety, usually when she is in a car.” (R. at 1425.) Here, the ALJ stated,
To account for these symptoms, the claimant is limited to work involving simple instructions and no specific production requirements. The examination findings do not support more restrictive limitations - hygiene and grooming were good; eye
contact was appropriate; speech was clear; she was alert and attentive; she displayed sufficient range of ideas with conversation; she could recall biographical details from childhood; she could correctly repeat five numbers; cognition appeared adequate; she could define “enormous,” name the current and former president, and perform simple arithmetic; judgment appeared intact; concentration was adequate (Ex. B27F/2-3).(R. at 1425.)
The ALJ then evaluated the opinion evidence. He afforded “limited weight” to the opinion of an examining physician that Plaintiff “had no physical or mental limitations”; “limited weight” to the opinions of the state agency reviewing physicians that Plaintiff “could perform a reduced range of light work”; and “little weight” to the opinions of the state agency reviewing psychologists that Plaintiff “had no severe mental impairment.” (R. at 1425-26.) He also afforded “little weight” to a “December 2015 statement from Kyle Scatas, MD keeping the claimant off work due to thyroid cancer.”(R. at 1426.) Here, the ALJ found “this was temporary” and “a finding of disability or inability to work is a finding reserved to the Commissioner.” (R. at 1426.) The ALJ further gave “little weight” to the GAF scores from Plaintiff's mental health providers. (R. at 1426.)
More specifically, in a treatment record dated December 10, 2015, Scatas stated, “Will need to be out of work for another few weeks, until her thyroid function is back to normal levels.” (R. at 708-09.)
Following his summary of the opinion evidence, the ALJ found that, during the relevant time period, there were jobs that existed in significant numbers in the national economy that Plaintiff could have performed. (R. at 1426-27.) The ALJ therefore concluded that Plaintiff is not disabled. (R. at 1428.)
B. Standards
A claimant's RFC, which represents “the most [she] can still do despite [her] limitations,” is determined by assessing all relevant evidence in the case record, including “all of the relevant medical and other evidence.” 20 C.F.R. § 404.1545(a)(1), (a)(3); see also Ladda v. Berryhill, 749 Fed.Appx. 166, 172 (4th Cir. 2018). The assessment must be based upon all of the relevant evidence, including the medical records, medical source opinions, and the individual's subjective allegations and description of her own limitations. 20 C.F.R. § 404.1545(a)(3).
Social Security Ruling 96-8p further requires that an ALJ's “RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).” SSR 96-8p, 1996 WL 374184, at *7 (S.S.A. July 2, 1996) (noting that the ALJ “must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved”). Moreover, the ALJ “must discuss the individual's ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and describe the maximum amount of each work-related activity the individual can perform based on the evidence available in the case record.” Id. Every conclusion reached by an ALJ when evaluating a claimant's RFC must be accompanied by “a narrative discussion describing [ ] the evidence” that supports it. Dowling, 986 F.3d at 387 (quoting Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019)) (alteration in original); see Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (explaining that “the ALJ must both identify evidence that supports his conclusion and build an accurate and logical bridge from that evidence to his conclusion”) (internal quotation marks omitted) (emphasis in original). Thus, “a proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion.” Thomas, 916 F.3d at 311.
A claimant's statements are among the evidence the ALJ must consider and reconcile with the RFC assessment. SSR 16-3p provides a two-step process for evaluating an individual's symptoms. First, the ALJ must determine whether the individual has a medically determinable impairment “that could reasonably be expected to produce the individual's alleged symptoms.” SSR 16-3p, 2017 WL 5180304, at *3 (S.S.A. Oct. 25, 2017). In the second step the ALJ must “evaluate the intensity and persistence of an individual's symptoms such as pain and determine the extent to which an individual's symptoms limit his or her ability to perform work-related activities ....” Id. at *4. In evaluating the intensity, persistence, and limiting effects of an individual's symptoms, the ALJ should “examine the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record.” Id. 20 C.F.R. § 404.1529(c)(4) provides that when evaluating a claimant's subjective statements about his or her symptoms, the ALJ “will consider whether there are any inconsistencies in the evidence and the extent to which there are any conflicts between your statements and the rest of the evidence, including your history, the signs and laboratory findings, and statements by your medical sources or other persons about how your symptoms affect you.”
In March 2016 the Social Security Administration published SSR 16-3p, 2016 WL 1119029 (2016), which rescinds and supersedes SSR 96-7p, eliminates use of the term “credibility,” and clarifies that subjective symptom evaluation is not an examination of an individual's character. SSR 16-3p applies to determinations and decisions made on or after March 29, 2016. Thus, this regulation applies to the instant ALJ decision, which was decided on January 24, 2023. SSR 16-3p, 2017 WL 5180304, at *13 n.27 (S.S.A. Oct. 25, 2017) (“Our adjudicators will apply this ruling when we make determinations and decisions on or after March 28, 2016.”). Although SSR 16-3p eliminates the assessment of credibility, it requires assessment of most of the same factors considered under SSR 96-7p.
The ALJ may not discredit a claimant solely because his or her subjective complaints are not supported by objective medical evidence, Craig v. Chafer, 76 F.3d 585, 595-96 (4th Cir. 1996), but neither is the ALJ required to accept the claimant's statements at face value; rather, the ALJ must “evaluate whether the statements are consistent with objective medical evidence and the other evidence.” SSR 16-3p, 2017 WL 5180304, at *6; see also Arakas, 983 F.3d at 95 (“[T]he ALJ must consider the entire case record and may ‘not disregard an individual's statements about the intensity, persistence, and limiting effects of symptoms solely because the objective medical evidence does not substantiate' them.” (quoting SSR 16-3p, 2016 WL 1119029, at *5)).
C. Explanation of Physical Limitations in Fingering, Reaching, and Handling and Sitting for Six Hours in a Workday
Plaintiff first argues that the ALJ erred in his RFC assessment by failing to properly explain Plaintiff's limitations in fingering, reaching, and handling “given her stage 3 carpal tunnel syndrome and neuropathy.” (Dkt. No. 17 at 18-23.) She further argues that the ALJ failed to properly explain Plaintiff's ability to perform jobs that require her to sit for six hours a day “given the severity of her cervical spine problems, neuropathy, and need to elevate her legs throughout the day.” (Dkt. No. 17 at 23-27.) Plaintiff argues that in finding Plaintiff's physical limitations do not preclude all work activity, the ALJ failed to provide a proper function-by-function analysis. (Id. at 16-18.)
Relevant here, in Mascio v. Colvin, Fourth Circuit Court of Appeals “rejected a per se rule requiring remand” when the ALJ does not perform a function-by-function analysis and explained that remand “may be appropriate” when an ALJ “fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review.” 780 F.3d 632, 636 (4th Cir. 2015). More recently, in in Dowling v. Commissioner of Social Security Administration, the Fourth Circuit Court of Appeals, applying the Mascio standard, held that an ALJ's RFC determination was not supported by substantial evidence as the ALJ did not “indicate that [the] RFC assessment was rooted in a function-by-function analysis of how Appellant's impairments impacted her ability to work.” 986 F.3d 377, 387 (4th Cir. 2021).
For the reasons discussed below, the undersigned cannot find the ALJ provided the requisite logical bridge between the medical evidence and Plaintiff's ability to perform the functions of sedentary work based on that evidence.
1. Limitations in Fingering, Handling, and Reaching
As noted above, the ALJ accounted for Plaintiff's “cervical degenerative disc disease and carpal tunnel syndrome” in the RFC assessment “by limiting [Plaintiff] to lifting and carrying up to ten pounds, frequent overhead reaching, handling, and fingering, and occasional feeling.” (R. at 1424.) The ALJ emphasized that “more restrictive limitations were not warranted” based on Plaintiff's “limited and conservative treatment history and evidently good response to gabapentin.” (R. at 1424.)
In her April 2016 function report, Plaintiff claimed that “psoriatic arthritis limits the use of my hands, in typing, filing or any computer work.” (R. at 250.) She further stated she required “help with any buttons, putting on and tying shoes,” and “often” needed help brushing my teeth and putting on make up.” (R. at 251.) At the November 18, 2022 ALJ hearing, Plaintiff testified that she could not write and her joints “lock up” when driving or typing. (R. at 1456, 1459.) Plaintiff also testified that carpal tunnel release surgeries “have [been] recommended . . . on several occasions throughout the years,” and, “I have been told that is what I need.” (R. at 1456.) Plaintiff testified that she cannot obtain that surgery due to her financial situation and lack of insurance. (R. at 1456-57.) While the ALJ acknowledged Plaintiff's claims of “stiff and swollen joints [and] numbness in the upper extremities” that limit the use of her hands, he did not mention her testimony that she could not afford recommended surgery. (R. at 1423.)
It is well settled that “[a] claimant may not be penalized for failing to seek treatment she cannot afford.” Lovejoy v. Heckler, 790 F.2d 1114, 1117 (4th Cir. 1986). Here, the ALJ did not address whether Plaintiff's “limited and conservative treatment history” was based upon Plaintiff's alleged inability to pay for recommended surgery. (R. at 1424.) His lack of discussion of Plaintiff's hearing testimony on this issue indicates he gave it no consideration. Courts routinely find remand is warranted under these circumstances. See, e.g., Katerina M. L. v. O'Malley, No. 1:22-cv-932, 2024 WL 110682, at *9 (M.D. N.C. Jan. 10, 2024) (finding the ALJ erred in relying on the plaintiff's lack of treatment to discount her subjective system reports without considering her inability to afford such treatment; emphasizing the ALJ “failed to even acknowledge in her decision Plaintiff's lack of insurance and/or inability to afford treatment during the relevant period”); Ford v. Berryhill, No. 2:17-cv-2394-BHH, 2019 WL 1090721, at *5 (D.S.C. Mar. 8, 2019) (remanding where ALJ failed to “make factual findings regarding Plaintiff's financial situation and its impact on her ability to obtain medical treatment and take her medications as prescribed”); Hagerman v. Colvin, No. 9:13-cv-1709-RMG, 2015 WL 300265 at *5 (D.S.C. Jan. 22, 2015) (remanding where ALJ failed to determine whether inability to pay was the cause of the plaintiff's lack of medical treatment).
Here, the Commissioner responds that “conservative treatment was only one factor the ALJ considered, in addition to Plaintiff's physical examination findings and her demonstrated ability to perform activities consistent with light exertional work.” (Dkt. No. 21 at 11.) At the outset, the undersigned recognizes that, earlier in his decision, the ALJ cited the findings from Plaintiff's August 2016 consultative physical examination as “objective evidence [that] supports a finding that the claimant could sustain a reduced range of sedentary work in spite of her subjective experience of pain, weakness, and neuropathy.” (R. at 1423.) However, “the ALJ is not permitted to reject statements regarding the intensity and persistence of pain or other symptoms solely because they are not substantiated by the objective medical evidence.” Coreen T. v. Kijakazi, No. CBD-19-cv-3372, 2022 WL 252961, at *6 (D. Md. Jan. 26, 2022) (finding “the ALJ erroneously discounted Plaintiff's subjective complaints when considering Plaintiff's limitations in the RFC”). Accordingly, this objective evidence, without more, cannot be the sole basis to discount Plaintiff's allegations of pain due to her carpal tunnel syndrome and neuropathy, as reflected in the ALJ's RFC finding.
Further, the Commissioner's reliance on Plaintiff's reported activities amounts to post-hoc rationalization, which the Court cannot consider. See, e.g., Brown v. Kijakazi, No. 4:21-CV-04051-TER, 2022 WL 12350625, at *8 (D.S.C. Oct. 21, 2022) (rejecting the Commissioner's “post-hoc reasoning” offered in support of the ALJ's finding; “Defendant's post-hoc rationalization with respect to this issue cannot be considered by the Court.”). Indeed, the ALJ did not discuss Plaintiff's reported daily activities anywhere in his decision, other than to briefly assess whether her mental impairments meet a listing at step three. (R. at 1421.)
As discussed above, other than Plaintiff's “limited and conservative treatment history,” the ALJ expressly relied on Plaintiff's “evidently good response to gabapentin” to find “more restrictive limitations were not warranted” specific to Plaintiff's lifting, carrying, fingering, and reaching abilities. (R. at 1424.) However, based on the ALJ's discussion of the relevant treatment records, the undersigned cannot find that the ALJ's conclusion here is supported by substantial evidence. Relevant here, the ALJ stated,
On June 22, 2016, the claimant presented for neck and arm pain stemming from a motor vehicle accident that occurred in March of 2016.... As of May of 2017, gabapentin was helping with her symptoms, and the dose was increased (Ex. B16F/51, 52). The dose was increased again in July of 2017 to help control leg pain (Ex. B16F/42-44). By August of 2017, she felt a little better (Ex. B16F/33). She essentially stopped complaining of neck and upper extremity symptoms after August of 2017.(R. at 1424.)
After carefully reviewing the records cited above by the ALJ, it appears he ignored or did not realize that the main medication used to treat Plaintiff's chronic pain, including in her neck, arms, and hands, was referred to interchangeably as Gabapentin and Neurontin. See Gabapentin, Harvard Health Publishing, https://www.health.harvard.edu/staying-healthy/gabapentin-uses-side-effects-and-what-you-should-know-if-youve-been-prescribed-this-medication (last visited June 17, 2024) (“Gabapentin is sold under the brand name Neurontin and is available as a generic product as well.”). This detail is important because in the August 3, 2017 treatment record cited by the ALJ, it states:
The patient presents to the office today with a 2 week f/u on legs/feet burning. Pt stated that it is a little better and she is having lower back pain.... [s]till with cramping in legs and shoulder area. Pain multiple joints. Legs burn. Not much better with increased Neurontin.(R. at 1021.) Between May 5, 2017 and July 7, 2017, Plaintiff's Gabapentin/Neurontin prescription was increased from twice a day to four times a day to treat Plaintiff's pain. (R. at 1030, 1032, 1039, 1040, 1043.) While the August 3, 2017 treatment note cited by the ALJ is admittedly a bit confusing, the notation of “[n]ot much better with increased Neurontin” cannot reasonably be interpreted as a “good response” to this medication. (R. at 1021.)
Additionally, after citing this August 3, 2017 visit, the ALJ concludes that Plaintiff “essentially stopped complaining of neck and upper extremity symptoms after August of 2017.” (R. at 1424.) However, the records do not substantiate this conclusion. For example, on August 29, 2017, Plaintiff visited Village Family Practice “to discuss joint pain & back pain.” (R. at 1018.) Despite the recent increase to her prescription for Gabapentin/Neurontin, Plaintiff complained of “pain bilat hands feel numb right hand getting weak at times.” (R. at 1018.) Also, during a visit at Village Family Practice on June 11, 2018, Plaintiff complained of “chronic pain all over, her joints hurt” and she “request[ed] pain meds,” stating “Neurontin did not help.”(R. at 1174.) These treatment records show she then “start[ed] back on Ultram BID PRN for pain.” (R. at 1179.) Additionally, Plaintiff's treatment records with her mental health providers document that she complained of “an increase in pain” on February 13, 2019 and “continue[d] . . . chronic pain” on March 18, 2019. (R. at 1706, 1708.)
Notably, this same treatment record stated that Plaintiff “has no[] insurance.” (R. at 1174.)
Ultram is the brand name for Tramadol, and it is a “controlled substance used to treat pain.” See Tramadol, Healthline, https://www. healthline. com/health/tramadol-oral-tablet (last visited June 4, 2024).
Further, on March 18, 2021, approximately six months after her date last insured, Plaintiff sought treatment at the hospital for “left wrist pain,” with complaints of “some swelling along ulnar aspect of left wrist for months.” (R. at 1690.) This pain apparently stemmed from Plaintiff's psoriatic arthritis as well as an injury caused by “a car accident many years ago” where metal plates and screws were placed “in her left arm.” (R. at 1690.) Examination notes from this visit indicated, inter alia, Plaintiff “exhibits decreased range of motion, tenderness and swelling.” (R. at 1692.) While the car accident referenced here appears to pre-date the 2016 one highlighted by the ALJ in his decision (R. at 1444), it is referenced as a source of Plaintiff's impairments during the alleged period of disability along with her psoriatic arthritis. (See, e.g., R. at 742, 1298.) Because this evidence permits an inference of linkage with Plaintiff's pre-date last insured condition, it is troubling that the ALJ did not acknowledge it anywhere in his decision. See, e.g., Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 341 (4th Cir. 2012) (“[P]ost-DLI medical evidence generally is admissible in an SSA disability determination in such instances in which that evidence permits an inference of linkage with the claimant's pre-DLI condition.”); Foshee v. Astrue, No. 4:11-cv-2912-RMG, 2013 WL 310657, at *4 (D.S.C. Jan. 25, 2013) (“The post date last insured medical evidence clearly ‘permits an inference of linkage' by addressing the same complaints of severe pain in the same anatomical area of the body producing, per the claims of the Plaintiff, the same disabling impairments.”).
In short, the undersigned appeared to improperly cherry-pick the records to conclude that Plaintiff “essentially stopped complaining of neck and upper extremity symptoms after August of 2017,” with an “evidently good response to gabapentin.” (R. at 4124.) See Arakas, 983 F.3d at 98 (“In evaluating a disability claim, ‘[a]n ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding.'” (quoting Lewis, 858 F.3d at 869)). Because, as discussed above, the ALJ otherwise improperly relied on Plaintiff's conservative treatment history to assess the fingering, handling, and reaching limitations in Plaintiff's RFC, the undersigned cannot determine whether the ALJ's conclusions about Plaintiff's ability to frequently reach, handle, and finger, as assessed in the RFC, are supported by substantial evidence. See Green v. Kijakazi, No. 0:21-cv-3064-BHH-PJG, 2022 WL 18144074, at *4 (D.S.C. Dec. 13, 2022) (finding “the ALJ's discussion is not sufficient to permit meaningful review of the decision” where “[t]he ALJ noted selective records that could support his findings, but he appears to have omitted consideration and evaluation of other aspects of those records as well as other records that support additional limitations”), adopted by, 2023 WL 122027 (D.S.C. Jan. 6, 2023).
This error is not harmless because the Vocational Expert testified that a limitation to occasional reaching, handling, and fingering “would preclude all the past work and it would preclude work at the sedentary level of exertion.” (R. at 1473-74.) Remand is therefore warranted on this basis.
2. Ability to Sit for Six Hours in an Eight Hour Workday
After considering Plaintiff's manipulative limitations, the ALJ considered certain records specific to Plaintiff's reported knee pain and stated the RFC “accounts for Plaintiff's knee impairments by limiting her to two hours of standing/walking ....” (R. at 1424.) He found there “is insufficient evidence to support more restrictive limitations,” noting that “[a]t a subsequent consultative examination, there was no indication that she was incapable of sitting for extended periods or that her pain was severe enough to limit time on task or attendance. Rather, her cognitive functioning was intact, and there was no indication of debilitating pain.” (R. at 1424.)
Plaintiff disputes that the ALJ adequately considered the evidence pertaining to her sitting limitations, citing her testimony from the ALJ hearing and her treatment records, including those from the Village Family Practice discussed above. (Dkt. No. 17 at 24-25.) Upon review, the ALJ did not acknowledge Plaintiff's testimony at the November 18, 2022 ALJ hearing about her alleged need to elevate her legs. More specifically, Plaintiff testified that she spends “half the day at least . . . laying in the bed with my legs straight or sitting up against the head board with my legs elevated on pillows.” (R. at 1460.) In response to her counsel's questioning, Plaintiff confirmed that “[w]ith regards to sitting,” her knees and “hip and spinal issues . . . are all affected” and equally problematic. (R. at 1460.) She further testified that during the “2019, 2020 time frame,” she “could stand for a few minutes, maybe ten, 15, 20 minutes . . . and then I have to lay down or at least sit down with my legs elevated. I have to get my lower back from standing that then the knee gives out on me.” (R. at 1460.) Critically, the VE testified that a person who needed to elevate their legs up to an hour a day on an “as needed type basis” would not be able to work. (R. at 1473.)
To the extent the ALJ's reference to Plaintiff's reported inability to “sit for extended periods” reasonably encompassed this alleged functional limitation (R. at 1425), he appeared to ignore her claim that this impairment was caused by more than just knee pain. More specifically, it is unclear if he considered whether Plaintiff's cervical degenerative disc disease also impacted Plaintiff's ability to sit, as she alleged. (R. at 1460.) In his decision, the ALJ only briefly referenced Plaintiff's cervical degenerative disc disease as it related to her alleged manipulative limitations. (R. at 1423.) Further, for the reasons discussed supra section C, it is not clear that the ALJ meaningfully considered the treatment records indicating that Plaintiff's chronic pain, including her leg and knee pain, persisted despite increased pain medication, and he otherwise relied on objective evidence to discount the alleged severity of her pain.
Based on the foregoing, the undersigned cannot find the ALJ properly explained his conclusions about Plaintiff's ability to perform this relevant function, ie, sitting for extended periods, in his decision. Remand is also warranted on this basis. See Mascio, 780 F.3d at 637 (“Because [the Court is] left to guess about how the ALJ arrived at his conclusions on [Plaintiff's] ability to perform [a] relevant function[,] remand is necessary.”); Pamela F. v. O'Malley, No. GLS-23-cv-0039, 2024 WL 726413, at *6 (D. Md. Feb. 22, 2024) (finding ALJ failed to provide a proper function-by-function analysis that builds an accurate and logical bridge between the evidence and the Plaintiff's RFC and remanding on this basis); see also SSR 16-3p, 2017 WL 5180304, at *5 (“We will not evaluate an individual's symptoms based solely on objective medical evidence unless that objective medical evidence supports a finding that the individual is disabled.”).
E. Evaluation of Mental Impairments
Plaintiff next argues that the ALJ erred by “fail[ing] to account for the severity of [Plaintiff's] mental impairments thereby resulting in a deficient RFC assessment.” (Dkt. No. 17 at 27-31.) In support, Plaintiff argues the ALJ did not fully acknowledge her testimony about the severity of her mental symptoms, and he failed to consider certain treatment records, including that Plaintiff sought treatment at the hospital on February 27, 2018 for intermittent chest pain “secondary to stress and anxiety.” (Id. at 27-29.)
As an initial matter, the undersigned finds that the ALJ accurately summarized Plaintiff's hearing testimony related to her mental impairments. In his decision, he noted that Plaintiff alleges disability due to mental impairments that she claims cause “anxiety, and panic attacks” and that her symptoms “limit her abilities to . . . drive, tolerate crowds, . . . and concentrate.” (R. at 1423.) He further noted Plaintiff's claim “that it takes her hours to get moving, and she requires frequent naps during the day.”(R. at 1423.)
In her brief, Plaintiff references the ALJ's finding at step three that Plaintiff only had a mild limitation in interacting with others. (Dkt. No. 17 at 29.) Because she does not argue, and the evidence does not otherwise suggest, that she had an extreme limitation in this area, any error in this finding at step three was harmless. See Cassie D. v. O'Malley, No. 3:22-CV-659-DJN-SLS, 2024 WL 1269756, at *3 (E.D. Va. Feb. 12, 2024), “(To satisfy ‘paragraph B' criteria, Plaintiff must have either one extreme limitation or two marked limitations in the four areas of mental functioning used in a work setting.” (quoting 20 C.F.R. §§ 404.1520a(c)(2), 416.920a(c)(2))), adopted by, 2024 WL 1260575 (E.D. Va. Mar. 25, 2024) Further, for the reasons discussed above, the undersigned finds the ALJ appropriately considered Plaintiff's mental impairments at step four when accounting for Plaintiff's resulting limitations in the RFC.
Further, while the ALJ did not expressly mention every treatment record pertaining to Plaintiff's mental health, the record shows that in his discussion of Plaintiff's mental impairments, the ALJ fairly characterized the relevant evidence as a whole. He began his discussion here by describing the records pertaining to Plaintiff's mental health treatment beginning on May 26, 2017. (R. 1425.) Here, he described records that at times showed improvement with medication management as well as others indicating a worsening of her condition. (R. at 1425, see R. at 121314, 942, 944, 946, 1706, 1709, 1696, 1700-01, 1713.) He noted, however, that “[a]s of May of 2019 her symptoms were better.” (R. at 1425.) The ALJ summarized the examination findings from these treatment records as follows:
On examination, her appearance was within normal limits; attitude was cooperative; behavior was calm; speech was normal; associations were intact; thought process was logical/goal directed; she denied delusions, suicidal ideation,
homicidal ideation, obsessions, and hallucinations; recent and remote memory was intact; concentration was intact; insight and judgment were good; fund of knowledge was average (Ex. B11F/3, 5; B19F; B29F/3, 8).(R. at 1425.) The ALJ found that the foregoing evidence “indicates that her mental impairments caused only moderate functional limitations and responded well to conservative treatment.” (R. at 1425.) See Stitely v. Colvin, 621 Fed.Appx. 148, 150-51 (4th. Cir. 2015) (“[T]he ALJ properly noted that Stitely's impairments were treated with limited, conservative treatment that improved some of Stitely's conditions.”).
The ALJ also considered Plaintiff's January 8, 2018 consultative psychological examination in detail. (R. at 1425.) He accurately summarized her symptoms as she reported them to the consultative examiner and stated that he accounted for them by limiting Plaintiff “to work involving simple instructions and no specific production requirements.” (R. at 1425.) He found the “examination findings do not support more restrictive limitations,” however, noting,
hygiene and grooming were good; eye contact was appropriate; speech was clear; she was alert and attentive; she displayed sufficient range of ideas with conversation; she could recall biographical details from childhood; she could correctly repeat five numbers; cognition appeared adequate; she could define “enormous,” name the current and former president, and perform simple arithmetic; judgment appeared intact; concentration was adequate.(R. at 1425.)
While Plaintiff asserts the ALJ erred in emphasizing an improvement in Plaintiff's symptoms as of May 2019, she does not dispute the accuracy of this statement. (Dkt. No. 17 at 29.) Rather, she indicates it was error for the ALJ “to pick out a few isolated instances of improvement over a period of months or years and to treat them as a basis for concluding a claimant is capable of working.” (Id.) Contrary to Plaintiff's assertion, the ALJ did not cherry-pick the record here to find an improvement in Plaintiff's mental health. In his brief, Plaintiff cites a few discrete treatment records that were not directly mentioned by the ALJ. (Dkt. No. 17 at 27-28 (citing R. at 737, Plaintiff began reporting anxiety on May 21, 2015; R. at 568, Plaintiff visited emergency department on June 19, 2015 with “an anxiety or panic attack”; R. at 747, Plaintiff reported worsening anxiety in October 19, 2015; R. at 1032, Plaintiff prescribed trazodone on July 7, 2017; R. at 1088, Plaintiff reported to emergency department on February 27, 2018 with chest pain “likely to be related to stress and anxiety”; R. at 1713, Plaintiff reported on May 9, 2019 that her “depression is improved” and she “does not like to drive now”).). Notably, Plaintiff does not explain how these omitted records warrant more restrictive impairments for her RFC than that assessed by the ALJ. Regardless, an ALJ need not mention every single piece of evidence from the extensive record. See Reid v. Comm'r, 769 F.3d 861, 865 (4th Cir. 2014) (“there is no rigid requirement that the ALJ specifically refer to every piece of evidence”).
As shown above, the ALJ thoroughly considered the evidence relevant to Plaintiff's mental impairments and gave adequate and sufficient reasons for his conclusion that Plaintiff's mental impairments did not preclude her ability to perform sedentary work with a limitation to work involving simple instructions and no specific production requirements. See John G. v. Kijakazi, No. 1:22CV679, 2023 WL 4205359, at *12 (M.D. N.C. June 27, 2023) (finding the ALJ's “analysis sufficiently captured the ebbs and flows of Plaintiff's mental symptoms and thus the ALJ did not err in finding some overall improvement in Plaintiff's mental symptoms”), adopted sub nom. Guzman v. Kijakazi, 2023 WL 4902534 (M.D. N.C. Aug. 1, 2023). Plaintiff's arguments here appear to ask the Court to reweigh the evidence and come to a different conclusion than the ALJ regarding Plaintiff's ability to work despite her mental impairments. In reviewing for substantial evidence, however, the Court does “not undertake to reweigh conflicting evidence, make credibility determinations, or substitute our judgment for that of the ALJ.” See Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). For these reasons, remand is not warranted on this basis.
F. Consideration of Medical Source Opinion Evidence
Finally, Plaintiff argues that the ALJ erred by failing to evaluate and explain the weight afforded to a medical opinion from Plaintiff's mental health counselor regarding Plaintiff's need to take breaks. (Dkt. No. 31-34.)
When evaluating a claimant's disability, the ALJ must “consider all of the available evidence in the individual's case record,” including evidence from “acceptable medical sources” and “other health care providers who are not ‘acceptable medical sources.'” SSR 06-03p, 2006 WL 2329939, at *1 (Aug. 9, 2006).Licensed Professional Counselors are not acceptable medical sources and, therefore, their opinions cannot establish the existence of a medically determinable impairment. Id. (defining acceptable medical sources as licensed physicians, licensed or certified psychologists, and-for limited purposes-licensed optometrists, licensed podiatrists, and qualified speech-language pathologists). Nevertheless, such an opinion “may provide insight into the severity of the [claimant's] impairment(s) and how it affects the individual's ability to function.” Id. at *2.
For benefits applications filed on or after March 27, 2017, the SSA has enacted substantial revisions to the regulations governing the evaluation of opinion evidence and prior administrative medical findings. Because Plaintiff's claim was filed in March 2016, the undersigned applies SSR 06-03p and 20 C.F.R. § 404.1527, which are effective for claims filed before March 27, 2017.
Here, Plaintiff cites a note from a July 18, 2017 treatment record with her mental health counselor, Brenda Maloney, wherein Ms. Maloney stated, inter alia,
Let patient know that I would help her learn how to manage a long-term chronic illness. Explained ‘spoon theory' and pointed out that patient really is physically and mentally tired. Explained that one part of managing chronic illness is learning to set limits. Recommended she rest 2-3 x a day for 30-60 minutes: once midmorning, and once mid-afternoon, and then even once mid-evening if she needed to do so.(R. at 1318.) According to Plaintiff, “[t]he medical evidence repeatedly documents Plaintiff's symptom of fatigue, supporting the need for additional breaks as opined by Ms. Brenda Maloney.” (Dkt. No. 17 at 32.) In response, the Commissioner asserts that Ms. Maloney's recommendation “was not a medical opinion, and, therefore, the ALJ did not err in failing to address its persuasiveness.” (Dkt. No. 21 at 14-15.)
Upon careful review, the undersigned does not find that the ALJ's failure to evaluate the persuasiveness of Ms. Maloney's recommendation to take breaks constitutes an independent basis for remand. Even if Ms. Maloney's recommendation could be construed as an opinion warranting consideration, the ALJ provided several reasons, discussed supra section E, for finding her mental impairments did not preclude all work activity. Notably, the recommendation at issue here was made once in July of 2017. As the ALJ noted in his decision, Plaintiff's symptoms were better as of May 2019, and she responded well to conservative treatment. (R. at 1425.) The additional records cited by Plaintiff do not undermine these conclusions. The ALJ also recognized that Plaintiff's “somatoform disorder tends to amply her perceived symptoms.” (R. at 1424.) Based on the foregoing, any failure to expressly discuss Ms. Maloney's recommendation here was harmless. See Emrich v. Colvin, 90 F.Supp.3d 480, 488 (M.D. N.C. 2015) (“In social security cases, an ALJ's errors are harmless so long as the ALJ's conclusion is supported by substantial evidence in the record and the claimant could not reasonably have been prejudiced by the error.”).
While the undersigned does not recommend the ALJ's failure to discuss Ms. Maloney's recommendation serves as an independent basis for remand, the ALJ should consider whether some discussion of her recommendation is appropriate on remand.
In summary, the undersigned cannot find the ALJ's RFC determination that Plaintiff's physical impairments do not preclude all work activity is supported by substantial evidence. Plaintiff asks that her case be remanded “to further address the[s]e issues.” (Dkt. No. 17 at 34.) Although sympathetic that Plaintiff's claim has been pending approximately eight years, the undersigned agrees that this relief is appropriate rather than remanding for an award of benefits. See, e.g., Felicia T. v. Saul, No. 4:20-cv-33, 2021 WL 2910206, at *6 (W.D. Va. July 12, 2021) (remanding for further consideration rather than awarding benefits on a post-remand appeal where ALJ failed to explain material conflicts in RFC assessment, even though claim had been pending for almost nine years); Ellis v. Colvin, No. 5:13-cv-43, 2014 WL 2862703, at *16-17 (W.D. Va. June 24, 2014) (remanding for further consideration rather than awarding benefits on a postremand appeal where ALJ failed to explain material conflicts in the RFC assessment, even though claim had been pending for almost eight years and facts presented “a close case, particularly given the small amount of benefits involved”).
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be REMANDED for a new hearing consistent with this Report & Recommendation.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).