Opinion
Civil Action 4:23-cv-01131-DCC-TER
01-18-2024
JESSE EDWARD ANDERSON, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
Florence, South Carolina United States Magistrate Judge
This is an action brought 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, denying Plaintiff's claim for disability insurance benefits (DIB). The only issues before the Court are whether the findings of fact are supported by substantial evidence and whether proper legal standards have been applied.
I. RELEVANT BACKGROUND
A. Procedural History
Plaintiff filed an application on November 17, 2017, alleging disability beginning on May 24, 2013, later amended to June 23, 2016. (Tr. 448). His claims were denied initially and upon reconsideration. Thereafter, Plaintiff filed a request for a hearing. A hearing was held in September 2019, at which time Plaintiff and a vocational expert (VE) testified. The Administrative Law Judge (ALJ) issued an unfavorable decision on October 8, 2019, finding that Plaintiff was not disabled within the meaning of the Act. (Tr. 10-20). Plaintiff filed a request for review of the ALJ's decision. The Appeals Council denied the request for review. In August 2020, Plaintiff filed an action in this court, and in October 2021, the action was remanded regarding the RFC of production rate pace, and Plaintiff's remaining issues of social interaction limitations, NP Stutts' opinion, and the subjective symptom evaluation. (Tr. 555). The ALJ held another hearing in August 2022. (Tr. 467). The ALJ issued an unfavorable decision in November 2022, finding that Plaintiff was not disabled within the meaning of the Act. (Tr. 448). Plaintiff filed this action in March 2023. (ECF No. 1).
B. Introductory Facts
Plaintiff was born in March 1954, and was sixty-four years old on the date last insured. Plaintiff has past relevant work as an automobile body repairer. (Tr. 457). Plaintiff alleges disability originally due to bipolar disorder, ADD, ADHD, OCD, GERD, heart condition, inability to multitask, short term memory loss, difficulty communicating with others, difficulty sleeping/insomnia, confused, anxious, irritated, panic attacks, frequent urination, and kneeling/squatting limitations. (Tr. 66).
C. The ALJ's Decision
In the decision of November 28, 2022, the ALJ made the following findings of fact and conclusions of law (Tr. 460):
1. The claimant last met the insured status requirements of the Social Security Act on December 31, 2018.
2. The claimant did not engage in substantial gainful activity during the period from his alleged onset date of June 23, 2016 through his date last insured of December 31, 2018 (20 CFR 404.1571 et seq.).
3. Through the date last insured, the claimant had the following severe impairments: bipolar disorder, attention-deficit/hyperactivity disorder, general anxiety disorder, obsessive compulsive disorder, personality disorder, and bilateral knee degenerative joint disease (20 CFR 404.1520(c)).
4. 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 and 404.1526).
5. After careful consideration of the entire record, I find that, through the date last insured, the claimant had the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) in that the claimant can lift/carry 50 pounds occasional and 25 pounds frequently. In addition, the claimant is limited to frequent use of foot controls bilaterally. The claimant is limited to frequently climbing ramps and stairs. The claimant can frequently kneel and crouch. The claimant is limited to performing routine repetitive tasks not at a production rate pace, meaning no assembly line work and no piece rate work. The claimant is limited to maintaining concentration, persistence, and pace for two hour periods during the workday. The claimant is limited to occasional interaction with supervisors, coworkers, and the public. The claimant is limited to a stable work environment, which means few and infrequent changes to the work routine.
6. Through the date last insured, the claimant was unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on March 27, 1954 and was 64 years old, which is defined as an individual of advanced age, on the date last insured. The claimant subsequently changed age category to closely approaching retirement age (20 CFR 404.1563).
8. The claimant has at least a high school education (20 CFR 404.1564).
9. 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).
10. 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).
11. The claimant was not under a disability, as defined in the Social Security Act, at any time from June 23, 2016, the alleged onset date, through December 31, 2018, the date last insured (20 CFR 404.1520(g)).
II. DISCUSSION
Plaintiff argues generally that the ALJ did not analyze the RFC function-by-function. (ECF No. 22 at 15-16). Plaintiff argues the ALJ failed to properly evaluate the RFC as related to physical impairments, specifically Plaintiff's knees. Within this issue and remaining issues, there is the issue of evidence dated after the DLI and linkage. (ECF No 22 at 16-18). Plaintiff argues the ALJ's RFC fails to account for panic attacks and OCD symptoms. (ECF No. 22 at 18-23). Plaintiff also makes a brief argument as to social interactions and the RFC and SSE. (ECF No. 22 at 23-24). Plaintiff argues the ALJ erred in the subjective symptom evaluation, citing Arakas v. Comm'r, 983 F.3d 83 (4th Cir. 2020). (ECF No. 22 at 24-28). Plaintiff argues the ALJ erred in analyzing NP Stutts' two opinions. (ECF No. 22 at 31-34). Defendant argues the ALJ's analysis here was sufficient, was in accordance with the applicable law, and Plaintiff has failed to show that the ALJ's decision is not based on substantial evidence.
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 the “need for efficiency” in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity (“SGA”); (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 SGA. See 20 C.F.R. § 404.1520. These considerations are sometimes referred to as the “five steps” of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).
The Commissioner's regulations include an extensive list of impairments (“the Listings” or “Listed impairments”) the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. § 404.1525. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, he will be found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that his impairments match several specific criteria or be “at least equal in severity and duration to [those] criteria.” 20 C.F.R. § 404.1526; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's past relevant work to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. § 404.1520(h).
A claimant is not disabled within the meaning of the Act if he can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, § 404.1520(a), (b); Social Security Ruling (“SSR”) 82-62 (1982). The claimant bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the regional 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 her conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed “even should the court disagree with such decision.” Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).Substantial evidence as a threshold is “not high;” “[u]nder the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains “sufficien[t] evidence” to support the agency's factual determinations.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019).
B. ANALYSIS
Opinions: NP Stutts
Plaintiff argues the ALJ erred in analyzing NP Stutts' two opinions. (ECF No. 22 at 31-34).
For applications filed on or after March 27, 2017, such as this action, the regulatory framework for considering and articulating the value of medical opinions has been changed. See 20 C.F.R. § 404.1520c; see also 82 Fed.Reg. 5844-01, 2017 WL 168819 (revisions to medical evidence rules dated Jan. 18, 2017, and effective for claims filed after Mar. 27, 2017). Importantly, the new regulations no longer require any special significance be given to opinions by a treating physician. See 20 C.F.R. § 404.1527 (noting that the treating physician rule only applies to claims filed before March 27, 2017). The ALJ is not required to defer to or give any specific weight to medical opinions. 20 C.F.R. § 404.1520c(a). Instead, the ALJ should consider and articulate in the decision how persuasive each medical opinion is based upon the factors of: (1) supportability; (2) consistency; (3) relationship with the claimant(length, frequency, purpose, extent, and examining); (4) specialization; and (5) other factors that tend to support or contradict a medical opinion. 20 C.F.R. § 404.1520c(b), (c). Supportability and consistency are the most important of the factors for consideration, and the ALJ is required to explain how he considered the supportability and consistency factors in evaluating opinion evidence. 20 C.F.R. § 404.1520c(a), (b)(2). An ALJ is not required to explain how the remaining factors were considered. 20 C.F.R. § 404.1520c(b)(2). In evaluating the supportability of an opinion, “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) . . . the more persuasive the medical opinions . . . will be.” 20 C.F.R. § 404.1520c(c)(1). In evaluating the consistency of an opinion, “[t]he more consistent a medical opinion(s) . . . is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) . . . will be.” 20 C.F.R. § 404.1520c(c)(2).
The record contains two opinions by NP Stutts at Exhibits 4F and 16F. The relevant time period is June 23, 2016(AOD) to December 31, 2018(DLI). (Tr. 451). Exhibit 4F is a four page letter dated May 2018, within the relevant time period, on the letterhead of The Saluda Counseling Center:
Defendant argues this is not an opinion under the regulations. (ECF No. 25 at 25). Defendant's argument is post-hoc rationale and it does not appear that the regulation cited by Defendant is consistent with the argument. (Tr. 457)(the ALJ here called it a medical opinion and weighed it as unpersuasive). Further, under 20 C.F.R. § 404.1513(a)(2)(ii), an opinion is a statement about limitations in the ability to remember, concentrate, persist, and respond appropriately socially. The regulations specifically direct that provider statements using programmatic functional terms as related to limitations are evidence that is inherently not persuasive and does not meet the definition of an opinion. 20 C.F.R. § 404.1520b(c)(3)(v).
Mr. A1nderson has been under the care of this practice since 06/23/2016 for psychiatric care due to his multiple mental health conditions. As of his last visit on 04/23/2018, when I was assigned as his medication management psychiatric provider. I have thoroughly reviewed Mr. Anderson's medical records including those from previous health care providers.
His first diagnosis is bipolar disorder, which is defined as manic episodes that may include symptoms such as high energy, reduced need for sleep and loss of touch with reality. Depressive episodes include symptoms of low energy, low motivation. and loss of interest in daily activities. Mood episodes may last days to months at a time and may be associated with suicidal or homicidal thoughts. The treatment for bipolar disorder is lifelong, often requiring the affected individual to not be able to work, have hospitalizations, and undergo frequent psychiatric care and chronic medication use for stabilization.
He will require life-long psychiatric care including frequent medical management appointments, psychotherapy, and medication management with prescribed medications. As per my professional opinion, this diagnosis alone, would provide cause for disability benefits to be awarded as it has been awarded to clients with similar or exact conditions. He continues to have insomnia, which is either lack of sleep, broken sleep patterns or nightmares/vivid dreams which increase his risk for instability in his bipolar disorder.
His second diagnosis is ADHD, which is a condition in which the affected individual cannot facilitate more than one thought process, they may become anxious, restless, and frustrated with the inability to complete tasks as required and by deadlines. He is medicated daily for this condition, and without his medication and even with his medication, simple tasks become overwhelming, and he is discouraged, and he reports that “I just quit because some days I am either too laser focused or either I have the inability to perform most tasks such as grocery shopping, paying bills and handling other important tasks of daily life.”
He was a General Motors Corporation Production Supervisor of special projects; he received excellent evaluations until he began to experience symptoms consistent with bipolar disorder, OCD, and ADHD. He was terminated for not being able to multi-task appropriately.
His third diagnosis is Obsessive-Compulsive disorder, which has two components, he feels that all his projects/tasks must be perfect, and then reviewed multiple times. OCD also spills into his personal life as he frequently checks and re-checks doors, re-prioritizing activities of daily living, [and] overthinking/planning simplest of tasks. As per the Anxiety and Depression Association of America, the OCD screening tool which is a diagnostic tool used to diagnose OCD, his score is 14 out of 21, which is consistent with the diagnosis of OCD. This diagnosis also provides challenges as a medical provider to manage as there are very few treatment options available to assist with this disorder. Mr. Anderson continues to have racing thoughts and scattered thought patterns. His OCD causes him to have a short temper and prevents him from accepting constructive criticism for improvement.
It is my understanding that he has previously been denied for Social Security benefits as he has been denied due to “not being disable[d] under your rules.” He may not have a physical disability; however, he does have multiple mental health conditions that prevent him from being able to be employed. He has been treated with multiple anti-psychotic medications in the past, some of which are not used any longer due to adverse side effects and risk of toxicity that could lead to severe injury or death.(Tr. 342-345). Exhibit 16F is a letter dated January 2022, over 3 years after the DLI; the opinion did not expressly provide any retroactivity in the letter or the form attached to the letter:
I am the mental health provider for Jesse Anderson. I have been caring for him since 2018 and he is being treated for ADHD, anxiety, and insomnia. I have completed the required “Ability to Do Work Related Activities mental assessment” as best as I can as his provider. Obviously, I am only able to see Mr. Anderson as he presents to my office, which is normally calm, collected, organized, and pleasant. However, he does have to make notes before and during our visits in order to help with organization and memory. I have never been to work or employed Mr. Anderson. [B]ased on the letter that has previously been written, which has been provided to you includes all of his employment history as well as struggles with employment related to his ADHD, anxiety, and insomnia. His past history includes difficulty with memory, having to make checklists, distractibility, difficulty staying on task, difficulty with work routine, use of calendars and fail safes for procedures, being easily overwhelmed, mind racing, difficulty with criticism, difficulty dealing with stressors, difficulty interacting with colleagues, outbursts in work and anxiety related to work stressors. In summary, I have provided my assessment as well as the patient's assessment and input to better allow his legal team to proceed as they see fit with his disability appeal case.(Tr. 755). NP Stutts' attached form opined that Plaintiff had a fair ability to: remember work procedures, maintain attention for two hour segments, sustain an ordinary routine without special supervision, complete a normal workweek without interruptions from symptoms, respond appropriately to criticism, and get along with coworkers. (Tr. 756). Plaintiff had a very good ability to: maintain regular attendance. Plaintiff had a good ability to perform at a consistent pace without an unreasonable number and length of rest periods. Explanation for limitations was inability to focus, distractibility, and ADHD. (Tr. 756-757). Plaintiff had a fair ability to carry out detailed instructions and deal with stress of semiskilled work. Explanation of limitations was ADHD. (Tr. 757-758). Plaintiff had a fair ability to interact with the public, maintain socially appropriate behavior, and adhere to basic cleanliness. (Tr. 758). The explanation for limitations question was left blank for this category. (Tr. 758). As to the question of any other work-related activities, written in is distractibility, impulsivity, and ADHD. (Tr. 758). NP Stutts opined Plaintiff would be absent from work about four days a month. (Tr. 759).
The ALJ found both opinions by NP Stutts as unpersuasive, finding they were “inconsistent with the majority of the record for the period under consideration” and that the opinions “seem to be largely based on the claimant's subjective reporting of his symptoms” because the opinions were “not supported by objective medical evidence.” (Tr. 457). Further, the ALJ found the opinions were inconsistent with Plaintiff's own statements that his medications were working and he was doing well. The ALJ also found: “To the extent she opined the claimant cannot be employed or is disabled, that opinion is not inherently valuable or persuasive in accordance with applicable Regulations as disability is an issue reserved to the Commissioner. See 20 CFR 404.1520b(c) and 416.920b(c).” (Tr. 457).
Although the ALJ did not cite exactly what objective medical evidence did not support the opinions, the court reviews the ALJ's opinion as a whole to ascertain whether there is any outcome determinative error. See Craig v. Chater, 76 F.3d 585, 595 (4th Cir. 1996); Meyer v. Astrue, 662 F.3d 700, 707 (4th Cir. 2011); see also Shinseki v. Sanders, 556 U.S. 396, 407 (2009) (“general case law governing application of the harmless-error standard” applies equally to administrative cases). The ALJ noted when Plaintiff was without his medications some in 2016, he had symptoms, citing specific page numbers of Exhibit 2F. The ALJ noted Plaintiff testified when he takes his medications, his symptoms are reduced and there is a “disappearance of excessive worrying,” citing Exhibit 2F/10. (Tr. 455). The ALJ noted Plaintiff reported significant memory difficulties and relied on lists, and contemporaneous treatment notes showed Plaintiff presented with clear and organized thoughts. (Tr. 455). The ALJ noted Plaintiff later denied poor memory and stated his medications improved memory difficulties. The ALJ cited Exhibits 2F/10, 2F/14, 2F/16, and 5F/13, discussed below. The ALJ also noted that the record routinely noted Plaintiff was not experiencing episodes of mania. The ALJ noted other providers noted Plaintiff had no psychological disorders, citing Exhibit 20F/39. The ALJ then moved to physical treatment records. Later, the ALJ noted he found more limitations than the state agency nonexamining psychological consultants had found. (Tr. 456).
The court reviews the evidence the ALJ cited. Exhibit 5F/13 is NP Stutts' August 2018 note. (Tr. 386). Under “current conditions/narrative summary,” “[q]uality: overall doing well; severity: mild to moderate,” duration: 1989, worsens with stress, “associated symptoms include nervous tics, difficulty multitasking, teeth clenching, jaw tightening, and insomnia, nightmares, all are improving somewhat.” (Tr. 386). Under review of systems, Plaintiff “denies cognitive deficits, poor short-term or long-term memory issues.” Upon exam, Plaintiff had bright affect, concrete thought content, good judgment, “no long term memory or short term memory issues,” good impulse control, and “limitations none.” (Tr. 386). Plaintiff reported babysitting more often. (Tr. 386). “He tells me that overall he is doing well and is continuing to move forward with divorce.” (Tr. 387). Under the heading “abnormal symptom,” “anxiety, ADHD, OCD behaviors, [and] mixed bipolar disorder” were listed. (Tr. 388).
Exhibit 20F/39 is June 2019 orthopedic notes noting “no psychological disorder.” (Tr. 847).
Exhibit 2F summarized below is 2016 and 2017 mental health notes.
In June 2016, Plaintiff reported symptoms of anxiety, but no panic attacks, no racing thoughts, and no symptoms of mania. Plaintiff did continue to “worry excessively” but had no signs or symptoms of OCD. (Tr. 312). Plaintiff was taking Xanax, Trintellix, and Seroquel. Upon exam, Plaintiff had mildly impaired short-term memory, logical thought, fair insight, appropriate affect, and normal mood. (Tr. 314). Diagnosis was bipolar, current episode mixed, moderate. (Tr. 314).
In July 2016, Plaintiff was seen by mental health and was not feeling depressed. Plaintiff continued to experience panic attacks and anxiety symptoms. Plaintiff was not experiencing mania symptoms and was no longer worrying excessively. (Tr. 315). “Abnormal symptom” noted was forgetfulness. (Tr. 315). There was no exam.
In August 2016, Plaintiff was seen by mental health. Plaintiff reported no change in memory. “Unable to tolerate Trintellix. Patient is tolerating medications.” (Tr. 317). Plaintiff continued to experience panic attacks and anxiety symptoms. Plaintiff was not experiencing racing thoughts, not experiencing symptoms of mania, and was no longer worrying excessively. (Tr. 317). Plaintiff was to try Wellbutrin next. (Tr. 318). There was no exam.
In September 2016, Plaintiff was seen by mental health. Plaintiff reported continuing to have significant memory difficulties and carrying around a notebook. Plaintiff “continues to experience panic attacks” and anxiety. Plaintiff was not experiencing racing thoughts or mania symptoms, and was no longer worrying excessively. (Tr. 319). A new diagnosis of ADD with hyperactivity was noted. (Tr. 319). No exam was performed.
In October 2016, Plaintiff was seen by mental health. Plaintiff “continues to experience panic attacks.” Plaintiff “is no longer worrying excessively, except in relation to his memory or organizational skills as well as procrastination. He has seen some improvement on meds.” (Tr. 321).
No exam was performed. “Abnormal symptoms” noted were “memory difficulty and procrastination (somewhat improved).” Plaintiff received the additional diagnosis of obsessive compulsive personality disorder. (Tr. 322).
In November 2016, Plaintiff was seen by mental health. Plaintiff reported getting worse. Plaintiff reported having trouble focusing on tasks and making priorities. Plaintiff's “thoughts are clear and organized” with appropriate mood. Plaintiff was taking Adderall. (Tr. 324).
In December 2016, mental health noted:
Pt continues to have some difficulty with memory however does feel he has benefitted from the medication, as his overall function has improved. We discussed at length, the fact that everyone alive has gifts and faults and perhaps he may be trying to change things that are not going to change. He spends all of his time focusing on these imperfections however and it was suggested to him that he concentrate on what he excels in which from prior reports has been quite a lot. Essentially conveying to pt “you can't be good at everything.” He agrees to make an honest effort to concentrate on the positives instead of berating himself nonstop for everything he's not perfect in. He has, however, as said improved, but all symptoms are not resolved. This is not of new onset and it may just be something he has to learn to accept.(Tr. 325). “Abnormal symptoms” were memory difficulty and “procrastination(somewhat improved).” (Tr. 326). There was no exam at this visit.
In January 2017, Plaintiff was seen by mental health. Plaintiff continued to have some difficulty with memory but benefitted from medication with improved overall function. Plaintiff continued experiencing panic attacks and anxiety symptoms but was no longer worrying excessively. (Tr. 327). There was no exam.
In April 2017, Plaintiff was seen by mental health. Plaintiff reported overall he was stable and Plaintiff spoke less “about memory but more about procrastination and never taking initiative to do things.” (Tr. 329). Plaintiff was “now watching his grandchild a lot.” Plaintiff was still experiencing panic attacks and anxiety symptoms. (Tr. 329). There was no exam.
In July 2017, Plaintiff's mental health visit was similar to April, except for “acknowledges he is a perfectionist and this creates some of his mood swings.” (Tr. 331). There was no exam. “Abnormal symptoms” were noted as “perfectionism, procrastination, and occasional anxiety.” (Tr. 331-332).
In October 2017. Plaintiff reported he was stable overall and was preparing for a birthday party for his grandchild. Plaintiff “continues to experience panic attacks.” “Abnormal symptoms” were “perfectionism, procrastination, anxiety, and poor focus at times.” (Tr. 334). There was no exam.
As a matter of thoroughness, Exhibit 5F is summarized below, only as to the relevant time period, as it contains more of NP Stutts' contemporaneous treatment notes.
In July 2018, Plaintiff was seen by NP Stutts. (Tr. 389). Exam and review of systems were the same as prior visit and the November 2018 visit. (Tr. 389). Plaintiff reported he lives for challenges, enjoys good competition, and drag races as a hobby. (Tr. 389). Plaintiff reported he was watching his grandson 3-4 days a week. “He tells me that he is doing well overall.” (Tr. 390). Same medications were continued. (Tr. 391).
In November 2018, Plaintiff was seen by NP Stutts. (Tr. 381). Plaintiff reported he was somewhat depressed; “he feels losses all around him.” He “got a stomach bug from his grandson.” “He continues with some ruminating issues with his soon-to-be ex-wife's affair.” (Tr. 381). “Associated symptoms include nervous tics, difficulty multitasking, teeth clenching, jaw tightening, and insomnia, nightmares, all are improving somewhat.” (Tr. 381). Under “review of systems,” Plaintiff “denies cognitive deficits, poor short-term or long-term memory issues.” (Tr. 381). Upon exam, Plaintiff had bright affect, concrete thought content, good judgment, “no long term memory or short term memory issues,” good impulse control, and “limitations none.” (Tr. 381). “Abnormal symptoms” were anxiety, ADHD, OCD behaviors, and mixed bipolar disorder. (Tr. 384). Plan was to continue Adderall, Seroquel, and Xanax. (Tr. 384).
While there are both abnormal and normal notations in the records as to Plaintiff's contemporaneous mental health treatment notes and the ALJ considered some of these records, the ALJ's findings that NP Stutts' opinions were not supported by objective medical evidence is supported by the record as NP Stutts' own exams regularly noted Plaintiff had bright affect, concrete thought content, good judgment, “no long term memory or short term memory issues,” good impulse control, and “limitations none,” and Plaintiff regularly reported to NP Stutts that he was doing well overall. Substantial evidence also supports the ALJ's finding that NP Stutts' opinions were inconsistent with Plaintiff's own statements. (Tr. 457).
Plaintiff argues that NP Stutts, as Plaintiff's treating provider, was in the best position to draw conclusions as to Plaintiff's symptoms; however, the treating physician rule is inapplicable here and there is no deference obligated to treating providers. (ECF No. 22 at 31). The ALJ's finding as to NP Stutts is supported by substantial evidence as the records cited and discussed above provide support for the ALJ's finding and explanation of NP Stutts' opinion as unpersuasive. (Tr. 457). The ALJ supported finding NP Stutts' opinions as unpersuasive by reviewing the consistency and supportability factors of 20 C.F.R. § 404.1520c(b),(c). Under the deferential standard of review applicable here, substantial evidence is not a high threshold. Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). The ALJ here performed the analysis under the applicable regulatory scheme and considered the factors most important to determining the persuasiveness of the opinions.
RFC
Plaintiff argues generally that the ALJ did not analyze the RFC function-by-function. (ECF No. 22 at 15-16). Plaintiff argues the ALJ failed to properly evaluate the RFC as related to physical impairments, specifically as to Plaintiff's knees. Within this issue and remaining issues, there is the issue of evidence dated after the DLI and linkage. (ECF No 22 at 16-18). Plaintiff argues the ALJ's RFC fails to account for panic attacks and OCD symptoms. (ECF No. 22 at 18-23). Plaintiff also makes a brief argument as to social interactions and the RFC and SSE. (ECF No. 22 at 23-24). An “RFC assessment is a separate and distinct inquiry from a symptom evaluation.” Dowling v. Comm'r, 986 F.3d 377, 387 (4th Cir. 2021). The SSE does relate eventually to forming an RFC determination, when considering how symptoms limit work capacity, but the subjective symptom evaluation is a separate analysis. SSR 16-3p, at *11.
An adjudicator is solely responsible for assessing a claimant's RFC. 20 C.F.R. § 404.1546(c). In making that assessment, he must consider the functional limitations resulting from the claimant's medically determinable impairments. Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184, at *2. This ruling provides that: “The 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 96-8, *7. “The adjudicator must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved.” Id. Additionally, “ ‘a necessary predicate to engaging in a 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.' ” Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013)). The ALJ considers the evidence in the record as a whole when analyzing Plaintiff's claims, as does this court when reviewing the ALJ's decision. See Craig, 76 F.3d at 595.
DLI/Linkage
Within this issue and remaining issues, there is the issue of evidence dated after the DLI and linkage. (ECF No 22 at 16-18). Medical evidence produced after the DLI is generally admissible if such evidence “permits an inference of linkage with the claimant's pre-DLI condition.” Bird v. Comm'r, 699 F.3d 337, 341 (4th Cir. 2012). However, if there is no evidence linking additional impairments to the claimant's condition prior to his DLI, the ALJ is not required to retrospectively consider that information. Id. at 341; Roberts v. Colvin, No. 8:15-CV-00076-TMC-JDA, 2016 WL 4394507, at *11 (D.S.C. July 25, 2016), report and recommendation adopted, 2016 WL 4266376 (D.S.C. Aug. 12, 2016)(finding where the ALJ considered post-DLI evidence finding no linkage between pre-DLI condition and post-DLI diagnosis, the ALJ was not required to give retrospective consideration). If evidence after the DLI provides evidence of the nature and severity of Plaintiff's impairments through the DLI, then the evidence should be considered if it can reasonably be related to the appropriate time period. The further from the DLI, the less likely the evidence will be helpful in understanding the impairments during the period at issue. Linkage is not present where the post-DLI evidence does not provide information regarding the claimant's pre-DLI functional limitations. Parker v. Berryhill, 733 Fed.Appx. 684, 687 (4th Cir. 2018).
The ALJ did not ignore this issue. The DLI was December 31, 2018, and Plaintiff must establish disability on or before this date in order to be entitled to a period of disability and disability insurance benefits. The ALJ found:
However, before discussing the objective medical evidence in the record, it is important to emphasize that this is an application for Title II benefits only. Thus, the period at issue is from the claimant's amended alleged onset date of June 23, 2016 through his date last insured of December 31, 2018. Therefore, the claimant must prove disability on or before his date last insured. For purposes of this decision, evidence prior to December 31, 2018 is considered to be probative. However, I note that I have reviewed the medical records for treatment before and after the date last insured, and have considered effects from impairments that can be reasonably be related back to the period prior to the date last insured.
Although the claimant alleges significant mental and physical impairment symptoms that prevent him from engaging in substantial gainful activity, a review of the full record during the period under consideration is inconsistent with the severity of impairments alleged.(Tr. 455).
The ALJ also noted that “the claimant's impairments, especially his mental impairments, would reasonably wax and wane such that any symptoms present beyond the period under consideration cannot be reasonably assumed to be in existence at the same or a similar severity level during the period under consideration.” (Tr. 456).
Evidence years outside the DLI relating to mental health was appropriate to devalue where the ALJ “could consider direct substantial evidence” of plaintiff's mental “condition during the DIB coverage period.” Emrich v. Colvin, 90 F.Supp.3d 480, 486-487 (M.D. N.C. 2015).
The ALJ made clear that she considered the full record for the period under consideration and that records after the DLI had been reviewed by the ALJ and effects that could reasonably be related back were considered. (Tr. 455). This is also shown by the ALJ's discussion of evidence dated 2019 and 2022 as discussed below. An ALJ is not required to consider post-DLI evidence if there is no linkage. See Parker v. Berryhill, 733 Fed.Appx. 684, 687 (4th Cir. 2018). The ALJ's explanations and cited supporting evidence has allowed meaningful review by the court. The ALJ has not run afoul of the precepts espoused in Bird, 699 F.3d 337, as to post-DLI linkage.
Physical/Knees
Plaintiff argues the ALJ failed to properly evaluate the RFC as related to physical impairments, specifically as to Plaintiff's knees.
As to Plaintiff's knees, the ALJ began with what may have been Plaintiff's original injury in 2013. “Physically, treatment records indicate the claimant twisted his left knee in 2013, with subsequent diagnostic imaging noting minimal degenerative joint disease, meniscus tears, Baker's cyst, and mild to moderate chrondrosis,” citing Exhibits 20F/33, June 2019 MRI, and 23E/9, 2013 orthopedic notes. (Tr. 455, 841, 704). The ALJ considered a June 2019 steroid injection that showed improvement in functionality before the end of that same month. (Tr. 455, 839). At the June 25, 2019 appointment, Plaintiff was minimally symptomatic and was going to become more active and see how it goes. He was going on a trip to Montana in the fall. (Tr. 839). The ALJ noted that despite Plaintiff's subjective knee complaints, “other treatment records from this period” showed Plaintiff had a normal gait, citing Exhibit 20F/37, a June 2019 orthopedic exam. (Tr. 455, 845). The ALJ noted again consideration of 2019 records where treatment notes indicated Plaintiff had continued injections that improved his knee function, with notes in 2019 stating Plaintiff was “minimally symptomatic,” citing Exhibit 8F/2, June 2019 orthopedic notes, and Exhibit 20F/1, July 2022 notes stating injection four months prior definitely helped, that Plaintiff had fallen a few weeks prior in 2022, and exam of normal gait, normal appearance of both knees, no tenderness, normal range of motion, no effusion, no instability, full strength, normal sensation, and “crepitus +1 to +2.” (Tr. 455, 417, 809). Further, the record contained no opinions with more physical limitations than the ALJ's limitations; two nonexamining consultants had found there were no physical severe MDIs within the relevant period, but the ALJ found there was a severe MDI as to degenerative joint disease. (Tr. 456).
Plaintiff argues specifically in relation to the DLI issue and the 2019 MRIs. (ECF No. 22 at 16-17). The ALJ considered knee records from 2019 and 2022.
The ALJ supported the physical RFC with substantial evidence.
Mental
Plaintiff argues the ALJ's RFC fails to account for panic attacks and OCD symptoms. (ECF
No. 22 at 18-23). Plaintiff also makes a brief argument as to social interactions and the RFC and SSE. (ECF No. 22 at 23-24).
The ALJ found an RFC of: “performing routine repetitive tasks not at a production rate pace, meaning no assembly line work and no piece rate work,” “limited to maintaining concentration, persistence, and pace for two hour periods during the workday,” “occasional interaction with supervisors, coworkers, and the public,” and “a stable work environment, which means few and infrequent changes to the work routine.” (Tr. 454).
As to mental impairments in the RFC narrative, the ALJ found:
Treatment records from 2015 note that the claimant did not present to medical appointments with anxious or fearful thoughts, fatigue, or other observable psychiatric abnormalities despite not taking any medications for his mental health in months (1F/4). The claimant was prescribed medications, but ran out of his medications and went several months again without them based on treatment records from 2016 (2F/3). Treatment notes regarding his mental status without medications indicate the claimant experienced some anxiety symptoms such as panic attacks, some difficulty sleeping at times, and excessive worrying (2F/3). The claimant testified at his hearing that when he takes medications, his mental impairment symptoms are reduced (Hearing Testimony). Similar sentiments are contained in the record, with the claimant reporting that he felt more stable when taking his medications, with reduced depression and disappearance of excessive worrying (2F/10). Although the claimant reported significant memory difficulties, treatment notes observe that the claimant presented with clear and organized thoughts, and the claimant admitted that he used lists to help him remember important details (2F/10, 14, 16, Hearing Testimony). He also stated that his medications improved his memory difficulties, and later denied any cognitive deficits such as poor memory (2F/16, 5F/13). Although the claimant alleges that he has episodes of mania, the record routinely notes that the claimant was not experiencing such episodes (2F). Further, treatment notes from other medical providers during the period under
consideration note the claimant had no psychological disorders (20F/39).(Tr. 455). Plaintiff argues that Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015) held that a moderate difficulty in concentration, persistence, or pace is not accounted for with a limitation to “simple, routine tasks or unskilled work.” (ECF No. 22 at 21-23). However, the ALJ here found much more RFC limitations than found in Mascio, supported with citation and discussion of supporting evidence.
As to social interaction, at an earlier Step, the ALJ acknowledged Plaintiff's reports of difficulty getting along with coworkers and occasional panic attacks; the ALJ noted Plaintiff regularly cared for his grandson and reported to the consultative examiner that he could cooperate with authority and interact with peers. (Tr. 453).
As discussed above in the issue regarding NP Stutts' opinions, the ALJ discussed abnormal and normal findings and Plaintiff regularly examined with bright affect, concrete thought content, good judgment, “no long term memory or short term memory issues,” good impulse control, and “limitations none,” and Plaintiff regularly reported to NP Stutts that he was doing well overall. The court does not re-weigh the evidence the ALJ considered. The ALJ reviewed and found Dr. Ritterspach's May 2018 consulting opinion somewhat persuasive; Dr. Ritterspach “stated that the claimant had a few depression and anxiety symptoms that would affect his ability to continuously interact appropriately with various audiences and stay focused on detailed and complex tasks.” (Tr. 457, 337). Plaintiff examined with retention and recall of three items immediately and after a short delay. (Tr. 337). Plaintiff remembered what he ate the night before. (Tr. 337). “His ability to complete tasks at a reasonable pace is mildly impaired due to emotional distress, especially complicated tasks.” (Tr. 337). Dr. Ritterspach opined that Plaintiff had the ability to interact appropriately with coworkers and supervisors. (Tr. 337).
In formulating the RFC, the ALJ considered Plaintiff's allegations, subjective reports, objective evidence, and opinions. (Tr. 454-457). The ALJ supported the functional limitations found in the ALJ's RFC determination with discussion and citation to substantial evidence in the record. The ALJ did not ignore the abnormal findings in the record but discussed them. An RFC is “an administrative assessment made by the Commissioner based on all the relevant evidence in the case record.” Felton-Miller v. Astrue, 459 Fed.Appx. 226, 230-31 (4th Cir. 2011) (citing 20 C.F.R. §§ 404.1546(c), 416.946(c)). Where there are two reasonable views of the evidence, the responsibility falls on the ALJ and it is not the court's duty to decide between them. Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). The court cannot say that a reasonable mind would not reach this RFC in view of the totality of the evidence. Based upon the foregoing, substantial evidence supports the ALJ's RFC.
As to Plaintiff's arguments regarding a proper function-by-function analysis, the ALJ's RFC and RFC narrative is supported by substantial evidence as displayed above. (ECF No. 22 at 15-16). The RFC discussion by the ALJ permitted meaningful review.SSE
Remand may be appropriate when there is no function-by-function analysis, but remand is only appropriate when meaningful review is frustrated and the court is “unable to fathom the rationale in relation to evidence in the record.” See Mascio, 780 F.3d at 636 (citing Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)). Such is not the case here on either account. See e.g. Ladda v. Berryhill, 749 Fed.Appx. 166, 173 (4th Cir. Oct. 18, 2018)and Wilbanks v. Berryhill, No. CV 1:17-1069-JMC-SVH, 2018 WL 4941121, at *10 (D.S.C. Feb. 7, 2018), report and recommendation adopted sub nom., 2018 WL 4476118 (D.S.C. Sept. 19, 2018).
Plaintiff argues the ALJ erred in the subjective symptom evaluation, citing Arakas v. Comm'r, 983 F.3d 83 (4th Cir. 2020). (ECF No. 22 at 24-28). SSR 16-3p sets out “the process ALJs use to evaluate the intensity and persistence of a claimant's symptoms and determine the extent to which the symptoms can reasonably be accepted as consistent with the objective medical and other evidence in the record.” Id.(internal citations and quotations omitted). Under Craig v. Chater, 76 F.3d 585, 591-96 (4th Cir. 1996), subjective complaints are evaluated in two steps. First, there must be documentation by objective medical evidence of the presence of an underlying impairment that would reasonably be expected to cause the subjective complaints of the severity and persistence alleged. Not until such underlying impairment is deemed established does the fact-finder proceed to the second step: consideration of the entire record, including objective and subjective evidence, to evaluate the intensity and persistence of symptoms to determine how symptoms limit capacity for work. See also 20 C.F.R. § 404.1529; SSR16-3p, *4.
The ALJ may choose to reject a claimant's testimony regarding his condition, but the ALJ must explain the basis for such rejection to ensure that the decision is sufficiently supported by substantial evidence. Hatcher v. Sec'y, Dep't of Health & Human Servs., 898 F.2d 21, 23 (4th Cir. 1989) (quoting Smith v. Schweiker, 719 F.2d 723, 725 n.2 (4th Cir. 1984)). A claimant's allegations “need not be accepted to the extent they are inconsistent with the available evidence, including objective evidence of the underlying impairment, and the extent to which that impairment can reasonably be expected to cause the pain the claimant alleges she suffers[.]” Craig, 76 F.3d at 595. The ALJ considers the evidence in the record as a whole when analyzing Plaintiff's claims, as does this court when reviewing the ALJ's decision. See id.; see SSR 16-3p, at *4.
A claimant's statements about intensity, persistence, and limiting effects of symptoms, which are inconsistent with the objective medical evidence and other evidence, are less likely to reduce her capacity to perform work related activities. SSR 16-3p, at *7; 20 C.F.R. § 404.1529(c). An individual's symptoms are evaluated based on consideration of objective medical evidence, an individual's statements directly to the Administration, or to medical sources or other sources, and the following factors:
1. Daily activities;
2. The location, duration, frequency, and intensity of pain or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any medication an individual takes or has taken to alleviate pain or other symptoms;
5. Treatment, other than medication, an individual receives or has received for relief of pain or other symptoms;
6. Any measures other than treatment an individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and
7. Any other factors concerning an individual's functional limitations and restrictions due to pain or other symptoms.SSR 16-3p, at *7; 20 C.F.R. § 404.1529(c). The ALJ at step three is to “consider the individual's symptoms when determining his or her residual functional capacity and the extent to which the individual's impairment-related symptoms are consistent with the evidence in the record.” SSR 16-3p, at *11.
Here, the ALJ noted:
I find the claimant's statements about the intensity, persistence, and limiting effects of his symptoms to be inconsistent with the objective evidence contained in the record, and his own statements regarding his level of activity. He admits that he no longer takes medication to control the mental impairment symptoms he complains prevents performance of substantial gainful activity (Hearing Testimony). He went on to state that he has only considered treatment from medical providers he feels have “decent reviews,” and those medical providers are not taking new patients (Hearing Testimony).
The claimant's daughter states that the claimant is capable of looking after his grandson by transporting him to school, and served as a competent adult capable of caring for a sleeping child during the period under consideration (23E/1). In addition, he acknowledges he enjoyed hobbies that require him to use a variety of skills, such as concentrating, remembering instructions, and interacting with others, such as running errands for family members and maintaining cars with his hobby of drag
racing, which did not end until after the date last insured (23E; Hearing Testimony).(Tr. 456). The ALJ reviewed the first factor of SSR 16-3p, daily activities, in noting Plaintiff's hobbies and care for grandchild among other activities. Consideration of daily activities covers a relevant factor per 20 C.F.R. § 404.1529(c)(3)(i). To the extent Plaintiff disagrees with the ALJ's consideration of Plaintiff's daily activities, several other factors were considered by the ALJ and the ALJ did not place sole reliance on daily activities in performing the subjective symptom evaluation In the opinion as a whole, the ALJ discussed Plaintiff's reported symptoms, which are the second and third factors. The ALJ considered the third factor in noting Plaintiff's testimony that he no longer took medication and the ALJ had previously considered Plaintiff's mental health contemporaneous treatment notes. Consideration of treatment history covers two relevant factors per 20 C.F.R. § 404.1529(c)(3)(iv)-(v). As summarized above, the ALJ discussed Plaintiff's allegations, a factor of SSR 16-3p. The ALJ discussed treatment Plaintiff received, which involves the fourth and fifth factors of SSR 16-3p.
An individual's symptoms are evaluated based on consideration of objective medical evidence and an individual's statements. SSR 16-3p, *7. In addition to consideration of some of the SSR 16-3p factors as discussed above, the ALJ also considered objective evidence. A claimant's allegations alone can never establish that he is disabled. 20 C.F.R. § 404.1529. An ALJ can discount a Plaintiff's subjective complaints when they are unsupported by the record. 20 C.F.R. § 404.1529; Craig v. Chater, 76 F.3d 585, 595 (4th Cir. 1996). Plaintiff is not required to be without symptoms to be found not disabled by the ALJ. Even where there is conflicting evidence that might have resulted in a contrary decision, our review is limited to whether substantial evidence supports the ALJ's decision. Based on the evidence before the ALJ, the ALJ conducted a proper evaluation of subjective symptoms and cited substantial evidence to support the finding that Plaintiff's allegations of disabling symptoms were not fully consistent with the record. See also Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1999)(“No principle of administrative law or common sense requires us to remand a case in quest of a perfect opinion unless there is reason to believe that the remand might lead to a different result”).
III. CONCLUSION
This Court is charged with reviewing the case only to determine whether the findings of the Commissioner were based on substantial evidence. Richardson, 402 U.S. at 390. Even where the Plaintiff can produce conflicting evidence which might have resulted in a contrary decision, the Commissioner's findings must be affirmed if substantial evidence supported the decision. Blalock, 483 F.2d at 775. The Commissioner is charged with resolving conflicts in the evidence, and this Court cannot reverse that decision merely because the evidence would permit a different conclusion. Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984). As previously discussed, despite the Plaintiff's claims, she has failed to show that the Commissioner's decision was not based on substantial evidence. Based upon the foregoing, and pursuant to the power of the Court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in social security actions under sentence four of Sections 205(g) and 1631(c)(3) of the Social Security Act, 42 U.S.C. Sections 405(g) and 1338(c)(3), it is recommended that the Commissioner's decision be AFFIRMED.