Opinion
C. A. 6:23-cv-1844-JDA-KFM
05-08-2024
Annemarie E.,[1] Plaintiff, v. Martin J. O'Malley,[2] Commissioner of Social Security, Defendant.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States Magistrate Judge.
This case is before the court for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.), concerning the disposition of Social Security cases in this District, and 28 U.S.C. § 636(b)(1)(B). The plaintiff brought this action pursuant to Section 205(g) of the Social Security Act, as amended (42 U.S.C. 405(g)), to obtain judicial review of a final decision of the Commissioner of Social Security denying her claim for disability insurance benefits under Title II of the Social Security Act.
A report and recommendation is being filed in this case, in which one or both parties declined to consent to disposition by the magistrate judge.
ADMINISTRATIVE PROCEEDINGS
Pertinent to the instant matter, the plaintiff filed an application for disability insurance benefits (“DIB”) on June 13, 2017, alleging that she became unable to work on September 24, 2012 (Tr. 214-15). The application was denied initially (Tr. 100-15) and on reconsideration (Tr. 117-36) by the Social Security Administration. On June 29, 2018, the plaintiff requested a hearing (Tr. 151-52). On May 1,2019, an administrative hearing was held at which the plaintiff, represented by counsel, and Julia Russell, an impartial vocational expert, appeared and testified via videoconference before Administrative Law Judge (“ALJ”) Carey Jobe (Tr. 34-62). On June 11, 2019, ALJ Jobe considered the case de novo and found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 15-32). The ALJ's finding became the final decision of the Commissioner of Social Security when the Appeals Council denied the plaintiff's request for review on April 14, 2020 (Tr. 1-4).
On June 13, 2017, the plaintiff's alleged onset date in this application was amended to the date following an unfavorable decision for a prior disability claim (Tr. 41, 212-13).
On May 27, 2020, the plaintiff filed a complaint in the United States District Court for the District of South Carolina, and on February 25, 2021, the case was remanded to the Commissioner for further proceedings based on a voluntary motion to remand (Tr. 917-19). Egas v. Comm'r Soc. Sec. Admin., C/A No. 6:20-cv-02006-TMC, at doc. 21 (D.S.C. Feb. 25, 2021). On January 19, 2022, the Appeals Council issued an order remanding the matter to an ALJ to issue a new decision in accordance with the order (Tr. 922-23).
On July 19, 2022, a second administrative hearing was held at which the plaintiff, represented by counsel, and Norma Stricklin, an impartial vocational expert, appeared and testified via telephone due to the COVID-19 pandemic before ALJ Jerry Peace (Tr. 839-89). On August 12, 2022, ALJ Peace considered the case de novo and issued a decision finding that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 815-38). ALJ Peace's finding became the final decision of the Commissioner of Social Security when the Appeals Council denied the plaintiff's request for review on March 16, 2023 (Tr. 751-54). The plaintiff then filed this action for judicial review (doc. 1).
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 December 31, 2017.
(2) The claimant did not engage in substantial gainful activity during the period from her alleged onset date of August 25, 2015, through her date last insured of December 31, 2017 (20 C.F.R. §§ 404.1571 et seq.).
(3) Through the date last insured, the claimant had the following severe impairments: degenerative disc disease and osteoarthritis of the bilateral sacroiliac joints, fibromyalgia, seizures, migraine headaches, obesity, depression, anxiety and neurocognitive disorder (20 C.F.R. § 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 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 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 sedentary work as defined in 20 C.F.R. § 404.1567(a) except she could never climb ladders, ropes, or scaffolds. She could have occasionally climbed ramps and stairs, stoop, crouch, kneel, or crawl. She was frequently able to balance with a handheld assistive device. The assistive device would have also been used to ambulate to the work-station, but was not needed at the workstation. She was able to frequently engage in bilateral handling and fingering. She was not able to use moving machinery or be exposed to unprotected heights. Work was limited to simple, routine, and repetitive tasks, performed in two-hour blocks of time with normal rest breaks during an eight-hour workday.
(6) Through the date last insured, the claimant was unable to perform any past relevant work (20 C.F.R. § 404.1565).
(7) The claimant was born on March 28, 1974, and was 43 years old, which is defined as a younger individual age 18-44, on the date last insured (20 C.F.R. § 404.1563).
(8) The claimant has at least a high school education (20 C.F.R. § 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 C.F.R. 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 C.F.R. §§ 404.1569 and 404.1569a).
(11) The claimant was not under a disability, as defined in the Social Security Act, at any time from August 25, 2015, the alleged onset date, through December 31, 2017, the date last insured (20 C.F.R. § 404.1520(g)).
The only issues before the court are whether proper legal standards were applied and whether the final decision of the Commissioner is supported by substantial evidence.
APPLICABLE LAW
Under 42 U.S.C. § 423(d)(1)(A), (d)(5), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an “inability to do 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 12 months.” 20 C.F.R. § 404.1505(a).
To facilitate a uniform and efficient processing of disability claims, the Social Security 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 that meets or medically equals an impairment contained in the Listing of Impairments found at 20 C.F.R. pt. 404, subpt. P, app. 1, (4) can perform her past relevant work, and (5) can perform other work. Id. § 404.1520. If an individual is found disabled or not disabled at any step, further inquiry is unnecessary. Id. § 404.1520(a)(4).
A claimant must make a prima facie case of disability by showing she is unable to return to her past relevant work because of her impairments. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). Once an individual has established a prima facie case of disability, the burden shifts to the Commissioner to establish that the plaintiff can perform alternative work and that such work exists in the national economy. Id. (citing 42 U.S.C. § 423(d)(2)(A)). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Id. at 191-92.
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the sCommissioner's findings “are supported by substantial evidence and were reached through application of the correct legal standard.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). “Substantial evidence” means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Id. In reviewing the evidence, the court may not “undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Id. Consequently, even if the court disagrees with the Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
ANALYSIS
The plaintiff, who was 41 years old on the alleged disability onset date, seeks disability based upon physical and mental impairments. She has past relevant work experience as an information technology consultant and director of information technology (Tr. 828). The plaintiff argues that ALJ Peace erred by (1) failing to explain how the residual functional capacity (“RFC”) assessment accounted for the plaintiff's migraines/headaches, impairments in combination, and medication side effects (doc. 33 at 28-33); and (2) failing to appropriately weigh opinion evidence from the plaintiff's providers (id. at 19-28). The plaintiff requests that this matter be remanded with an award of benefits (id. at 33-34). The Commissioner, on the other hand, asserts that the ALJ's decision is supported by substantial evidence, should be affirmed, and that benefits should not be awarded (doc. 35 at 7-27).
Because the decision by ALJ Peace is the one currently before the court, the remainder of the decision will refer to him as “the ALJ.
Residual Functional Capacity
The regulations provide that a claimant's RFC is the most that she can still do despite her limitations. 20 C.F.R. § 404.1545(a). It is the ALJ's responsibility to make the RFC assessment, id. § 404.1546(c), and the ALJ does so by considering all of the relevant medical and other evidence in the record, id. § 404.1545(a)(3). Social Security Ruling (“SSR”) 96-8p provides in pertinent part:
The RFC assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions in paragraph (b), (c), and (d) of 20 C.F.R. §§ 404.1545 and 416.945. Only after that may [the] RFC be expressed in terms of the exertional levels of work, sedentary, light, medium, heavy, and very heavy.SSR 96-8p, 1996 WL 374184, at *1. The ruling further provides:
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). In assessing RFC, the adjudicator 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. The adjudicator must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved.Id. at *7 (footnote omitted). Further, “[t]he RFC assessment must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence.” Id. Moreover, “[t]he RFC assessment must always consider and address medical source opinions. If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted.” Id.
As noted above, in evaluating the plaintiff's case, the ALJ set forth the following RFC assessment:
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 C.F.R. § 404.1567(a) except she could never climb ladders, ropes, or scaffolds. She could have occasionally climbed ramps and stairs, stoop, crouch, kneel, or crawl. She was frequently able to balance with a handheld assistive device. The assistive device would have also been used to ambulate to the work-station, but was not needed at the work-station. She was able to frequently engage in bilateral handling and fingering. She was not able to use moving machinery or be exposed to unprotected heights. Work was limited to simple, routine and repetitive tasks, performed in two-hour blocks of time with normal rest breaks during an eight-hour workday.(Tr. 822). The RFC assessment was followed by a discussion of the record evidence by the ALJ (Tr. 822-28). As noted above, the plaintiff asserts that the ALJ failed to explain how the RFC assessment accounted for the plaintiff's impairments, including the plaintiff's migraines/headaches, medication side effects, and the limitations caused by the plaintiff's impairments in combination (doc. 33 at 28-33).
Migraine/Headache Limitations
The plaintiff argues that the ALJ's RFC assessment was in error because he should have found her disabled based on excessive absences secondary to her migraines/headaches (doc. 33 at 28-30). The undersigned disagrees. First, the record evidence referenced by the plaintiff in support of her argument was addressed by the ALJ - meaning that the plaintiff, in essence, requests that this court consider evidence evaluated by the ALJ and come to a different conclusion, which is beyond the purview of substantial evidence review. Further, as explained by the ALJ, he limited the plaintiff to less than sedentary work with no exposure to hazards to account for the limitations supported by the record that were secondary to the plaintiff's migraines/headaches (Tr. 825, 827). Indeed, the ALJ explained that the plaintiff's improving migraines/headaches did not require additional RFC limitations (or prevent the plaintiff from working) based on relatively normal examination findings, findings that the plaintiff's headaches worsened secondary to noncompliance with medications, and the plaintiff's testimony that her headaches had improved (Tr. 823, 825, 827).
Despite the foregoing explanation, the plaintiff argues that the ALJ erred by failing to address the frequency of the plaintiff's migraines/headaches, which would cause excessive absenteeism (doc. 33 at 28). The undersigned finds this argument unavailing. Here, as noted by the ALJ, during the administrative hearing in 2019, the plaintiff testified that she still experienced headaches occasionally, but her headaches were not as intense and she only experienced migraines “every once in a while” (Tr. 44-45, 47). Further, the plaintiff only references six total treatment notes in support of her argument that migraines/headaches would cause excessive absences (doc. 33 at 28-30 (citing Tr. 376, 469, 484, 489, 655, 658-60)). For example, although the plaintiff references neurology records from Thomas Fox, Jr., M.D., from August 29, 2016, which noted that the plaintiff's headaches had improved (and she reported having less than ten per month) (Tr. 376-77), the plaintiff does not reference her next visit with Dr. Fox, wherein her headaches were noted as stable despite some increase in frequency during February 2017 secondary to situational stressors (Tr. 374-75). Indeed, at the plaintiff's physical with William Messer, M.D., on June 17, 2016 (cited by the plaintiff), the plaintiff did not complain of headaches or migraines, and Dr. Messer noted that the plaintiff “overall appear[ed] to be in good physical condition” and encouraged the plaintiff to start a healthy diet and routine exercise (Tr. 481-85). Four months later, when the plaintiff reported to Dr. Messer, she complained of continued headaches, but Dr. Messer mentioned that a major component of the plaintiff's headaches were rebound, and he recommended a work-up at a headache center, but also noted that the plaintiff was not willing to abstain from the use of analgesics (which could be worsening the plaintiff's migraines/headaches) (Tr. 487-90). When the plaintiff returned to Dr. Messer almost a year later, the plaintiff had no complaints relating to headaches and only mentioned dropping potassium levels during this appointment (T r. 466-70). When the plaintiff reported to Meng Zhou-Wang, M.D., four days later, the plaintiff noted that she had experienced increased migraines, but they had responded well to an infusion and she was resuming Botox treatment for her migraines (Tr. 654-56).When the plaintiff returned to Dr. Zhou-Wang on December 29, 2017, she reported that the Botox had historically helped reduce her headaches in both frequency and intensity, and another Botox treatment was administered (Tr. 658-60). As recognized by the ALJ, these treatment records, noting improved headache frequency and infrequent headache complaints, did not require additional RFC limitations.
Treatment records from Dr. Zhou-Wang from three months prior, June 23, 2017, although not referenced by the plaintiff, indicated no headache complaints from the plaintiff (although Botox injections were noted as being helpful) (Tr. 378-88).
Indeed, as noted by the ALJ (although not addressed by the plaintiff), Rebecca Wagner, Ph.D., who completed a neuropsychological consultative evaluation of the plaintiff on October 12, 2015, indicated that the plaintiff's migraines may be secondary to analgesic overuse, and the plaintiff's headache frequency was reported as improved with Botox (Tr. 368). Similarly, when the plaintiff presented to Kent Kistler, M.D., for treatment six months later, her headache frequency and severity were noted as improved with Botox (Tr. 389-90). Further, during pain management treatment with Edward DeLorey, M.D., although the plaintiff reported a history of migraine headaches (and treated with the pain management practice for them in 2013), she did not complain about headaches or migraines during any of her appointments with him during the relevant period (Tr. 599-09, 612-17). Nevertheless, the plaintiff appears to argue that the ALJ should have adopted the headache frequency she subjectively reported despite the other record evidence (which the plaintiff argues would preclude all work); however, the plaintiff has not argued error with respect to the ALJ's consideration of the plaintiff's subjective complaints, and the ALJ found that the plaintiff's subjective complaints were not consistent with the record evidence (see Tr. 823-28). Shinaberry v. Saul, 952 F.3d 113, 124 n.5 (4th Cir. 2020) (noting that a plaintiff waived review of a claim by failing to raise it in her initial brief). In light of the foregoing, the ALJ's determination that additional RFC limitations were not required to address the plaintiff's migraines/headaches is supported by substantial evidence and should be affirmed.
Combination of Impairments
The plaintiff also argues that the ALJ erred by failing to evaluate the plaintiff's impairments in combination (doc. 33 at 30-32). As an initial matter, the majority of the records cited by the plaintiff under this heading appear to be opinions completed by the plaintiff's medical providers that the ALJ found unpersuasive (see id.). However, as explained infra, the ALJ appropriately explained why such opinion evidence was not entirely persuasive and did not require incorporation into the RFC assessment. Nevertheless, the undersigned will address the plaintiff's conclusory argument that the ALJ failed to address her impairments in concert. The Court of Appeals for the Fourth Circuit has consistently held that when evaluating the effect of various impairments upon a disability benefit claimant, the combined effect of a claimant's impairments must be considered. Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989). “It is axiomatic that disability may result from a number of impairments which, taken separately, might not be disabling, but whose total effect, taken together, is to render claimant unable to engage in substantial gainful activity. . . . [T]he [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them.” Id. (internal citations omitted). Furthermore, “[a]s a corollary to this rule, the ALJ must adequately explain his or her evaluation of the combined effects of the impairments.” Id. (internal citations omitted). The ALJ's duty to consider the combined effect of the plaintiff's multiple impairments is not limited to one particular aspect of its review, but is to continue “throughout the disability determination process.” 20 C.F.R. § 404.1523; see Brown v. Astrue, C/A No. 0:10-cv-1584-RBH, 2012 WL 3716792, *6 (D.S.C. Aug. 28, 2012) (“Accordingly, the adequacy requirement of Walker is met if it is clear from the decision as a whole that the Commissioner considered the combined effect of a claimant's impairments.”).
The plaintiff is tasked with showing that the Commissioner's decision could have a different outcome if he or she had done an adequate combined effect analysis, rather than a “fragmentized” analysis of the multiple impairments. Brown, 2012 WL 3716792, at *6 (internal citations omitted). Here, the plaintiff has not done so. First, although the plaintiff summarizes various opinions (addressed infra) and a few treatment records in support of this argument, she has not set forth how the ALJ's decision would have a different outcome in light of this evidence, and she has not identified evidence ignored by the ALJ in his decision. Moreover, a review of the ALJ's decision as a whole reflects consideration of the plaintiff's impairments in combination at each step. For example, the ALJ evaluated the plaintiff's impairments in concert under the Listings, but found that the impairments (individually and in combination) did not meet or equal the criteria of the Listings (Tr. 818-22).
Additionally, in explaining the RFC assessment, the ALJ detailed the plaintiff's physical and mental impairments in concert in examining the plaintiff's treatment records (Tr. 822-28). Indeed, the ALJ explained that he limited the plaintiff to a range of sedentary work to account for the limitations caused by the plaintiff's impairments both individually and in combination (Tr. 827-28 (emphasis added)). For example, the ALJ noted that based on the plaintiff's migraines/headaches and seizures, the RFC assessment did not allow the plaintiff to be around hazards (Tr. 827). Similarly, the ALJ explained that the plaintiff was limited to a range of sedentary work to account for the combined effects of the plaintiff's degenerative disc disease, osteoarthritis, fibromyalgia, seizures, migraines, obesity, depression, anxiety, and neurocognitive disorder (Tr. 824-27). Based upon the foregoing, the court finds that the ALJ's decision reflects consideration of the plaintiff's impairments in combination. Further, the court finds that the plaintiff failed to reference evidence of record that contradicts the ALJ's findings or supports greater limitations than those imposed by the ALJ; thus, in essence, the plaintiff seeks to have this court reweigh the evidence with respect to her impairments, which is not within the province of the court. See Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005) (holding that a reviewing court should not undertake to reweigh conflicting evidence, make credibility determinations, or substitute its judgment for that of the ALJ). Accordingly, the ALJ's evaluation of the plaintiff's impairments in combination is supported by substantial evidence and should be affirmed.
The plaintiff cites to Tr. 370 in support of this argument; however, that page of Dr. Wagner's report does not list or discuss medication side effects (see doc. 33 at 32 (citing Tr. 370)).
Side Effects of Medication
The plaintiff also argues that the ALJ failed to explain how the less than sedentary RFC assessment accounted for the plaintiff's medication side effects (doc. 33 at 32-33). The undersigned disagrees. First, although Dr. Wagner noted that the plaintiff's medication side effects “may be coloring [the plaintiff's] cognitive picture” (Tr. 3727), the plaintiff has not argued how that notation would require a different RFC assessment. Indeed, as noted by the ALJ, he limited the plaintiff to simple, routine, and repetitive tasks to address limitations noted by Dr. Wagner, including low average auditory attention, low average sustained auditory attention, borderline visual scanning speed, borderline visual attention, and borderline complex auditory attention (Tr. 368-73, 827-28). The plaintiff also argues that the ALJ erred by failing to explain how the plaintiff could engage in a range of sedentary work secondary to tremors she developed as a medication side effect (doc. 33 at 32-33). The plaintiff only references two records in support of her argument (Tr. 374, 1230), although one of the records she references does not actually mention tremors (see Tr. 374). However, although the plaintiff reported tremors to Dr. Zhou-Wang, it was well after the date last insured (July 13, 2021), and the plaintiff testified during the administrative hearing that the tremors had stopped (Tr. 855). As such, as recognized by the ALJ, additional RFC limitations were not required to address a medication side effect of tremors. The other medication side effects referenced by the plaintiff in support of her argument are those listed by Joseph Friddle, P.A./Jeff Smith, M.D., on their joint opinion forms (doc. 33 at 32-33 (citing Tr. 747, 1149)), but were not mentioned by the plaintiff in her hearing testimony. Additionally, to the extent the plaintiff relies on opinions regarding medication side effects listed by Mr. Friddle/Dr. Smith, as outlined below, the ALJ appropriately found their opinion regarding medication side effects not persuasive. See infra pp. 15-20. Accordingly, substantial evidence supports the ALJ's determination that additional RFC limitations were not required to account for the plaintiff's medication side effects.
Medical Source Statements
Although somewhat conflated and lacking clarity, the plaintiff also argues that the ALJ failed to appropriately evaluate opinion evidence from some of her medical providers (doc. 33 at 19-28). For applications filed on or after March 27, 2017, such as the plaintiff's herein, a new regulatory framework for considering and articulating the value of medical opinions has been established. 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). As part of the new regulatory framework, the definition of medical opinions has been updated. See 20 C.F.R. § 404.1513(a)(2). Most notably, the new regulations no longer require that special significance be given to opinions by a claimant's treating physician. See 20 C.F.R. § 404.1527 (noting that the treating physician rule only applies to claims filed before March 27, 2017). Indeed, the ALJ is not required to defer to or give any specific weight to medical opinions. Id. § 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; (4) specialization; and (5) other factors that tend to support or contradict a medical opinion. Id. § 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. Id. § 404.1520c(a), (b)(2). An ALJ may, but is not required to, explain how the remaining factors were considered. Id. § 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.” Id. § 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.” Id. § 404.1520c(c)(2).
It appears that the plaintiff challenges the ALJ's evaluation of opinion forms by Mr. Friddle/Dr. Smith, a handicap placard application completed by Eric Loudermilk, M.D., and consultative examination findings by Thaer Joudeh, M.D. (doc. 33 at 19-28).
To the extent the plaintiff relies on handicap placard applications she contends were completed by Drs. Messer or Zhou Wang, these documents are not part of the record before this court and the plaintiff has not provided a citation to record evidence containing such applications (see doc. 33 at 25-26).
As an initial matter, the plaintiff's arguments relating to the ALJ's evaluation of opinion evidence appear to be based on the regulations applicable to applications filed before March 27, 2017 (see doc. 33 at 19-28 (arguing that the ALJ should have afforded the opinion evidence from treating physicians great weight)). As noted above, the application relevant to the instant matter was filed after March 27, 2017, so the ALJ appropriately noted the persuasiveness of the opinion evidence (instead of weighing the opinions) and addressed each opinion's supportability and consistency (the only two factors that must be discussed absent other circumstances not present in the instant matter) (Tr. 826-27). The undersigned addresses each opinion in turn.
Mr. Friddle/Dr. Smith
On April 2, 2019, Mr. Friddle/Dr. Smith completed a mental RFC evaluation form. They noted that the plaintiff's diagnoses included major depression and generalized anxiety disorder. The plaintiff's symptoms included: poor memory, weight change, sleep disturbance, personality change, mood disturbance, emotional disturbance, recurrent panic attacks, anhedonia or pervasive loss of interest, psychomotor agitation, retardation, difficulty thinking or concentrating, feelings of guilt/worthlessness, decreased energy, intrusive recollections of a traumatic experience, and generalized persistent anxiety. The plaintiff had a history of depressed moods, emotional lability, crying spells during exam, sad affect, and poor focus compared to baseline. The plaintiff's impairments were reasonably consistent with the limitations opined, and the plaintiff took Cymbalta, Xanax, and clonidine for her impairments. The plaintiff's medications caused side effects of dizziness, drowsiness, fatigue, lethargy, and concentration. The plaintiff did not have a low IQ or reduced intellectual functioning. The plaintiff's impairments would cause her to be absent from work more than three times per month. The plaintiff would not be able to meet the time requirements of a normal workweek on a sustained basis. Mr. Friddle/Dr. Smith noted that due to the severity of the plaintiff's physical and mental illnesses she would be unable to (1) be punctual/reliable; (2) focus and complete simple tasks safely, accurately, and efficiently; and (3) communicate with the general public in an emotionally stable manner on a consistent basis. The plaintiff would have marked limitations in her activities of daily living (“ADLs”) and in maintaining social functioning. The plaintiff would have difficulty responding appropriately to supervisors, co-workers, and the public because the severity of the conditions would markedly impair “the items listed.” The plaintiff would frequently have concentration, persistence, or pace deficiencies and would be off task due to her condition frequently. The plaintiff would have episodes of deterioration or decompensation in worklike settings continually. The plaintiff's functioning in several areas was then ranked in one of three categories: significantly limited, moderately limited, or markedly limited. In the category of understanding and memory, the plaintiff had marked limitations in remembering locations and work-like procedures, understanding and remembering very short and simple instructions, and understanding and remembering detailed instructions. In the area of concentration and persistence, the plaintiff had a moderately limited ability to carry out very short and simple instructions and make simple work-related decisions. In this same category, the plaintiff had marked limitations in carrying out detailed instructions; maintaining attention and concentration for extended periods; performing activities within a schedule, maintaining regular attendance, and being punctual within customary tolerances; sustaining an ordinary routine without special supervision; working in coordination with or proximity to others without being distracted by them; and completing a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. In the area of social interaction, the plaintiff had moderate limitations in asking simple questions or requesting assistance and in the ability to maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness. In the same area, the plaintiff had marked limitations in interacting appropriately with the general public; accepting instructions and responding appropriately to criticism from supervisors; and getting along with co-workers or peers without distracting them or exhibiting behavioral extremes. In the area of adaption, the plaintiff had moderate limitations in the ability to be aware of normal hazards and take appropriate precautions and marked limitations in her ability to respond appropriately to changes in the work setting; traveling in unfamiliar places or using public transportation; and setting realistic goals or making plans independently of others. The plaintiff would be able to manage her own benefits. The opined limitations existed since August 25, 2015 (Tr. 746-50).
Mr. Friddle/Dr. Smith completed a second mental RFC evaluation of the plaintiff on April 7, 2022. The second evaluation was almost identical to the first, although Mr. Friddle/Dr. Smith noted an additional symptom of delusions or hallucinations as well as that the plaintiff's symptoms did not occur every visit; instead, they happened on occasion. A new question was added to the evaluation:
This questionnaire addresses your patient's condition and functional abilities in a work setting. If your office notes indicate that the patient's condition may be better or more stable or that they functions [ sic.] better while not working than you indicate in your answers on this form, is the explanation for any inconsistencies between your office records and your answers on this questionnaire due to the fact that the demands of work aggravate the patient's condition and/or result in decompensation?(Tr. 1152). Mr. Friddle/Dr. Smith marked “yes” to this question (Tr. 1148-52).
The ALJ considered the opinions by Mr. Friddle/Dr. Smith and found them not persuasive based on their completion many years after the date last insured as well as because they were unsupported by their own treatment records as well as other record evidence (Tr. 827). The plaintiff argues that the ALJ erred in his consideration of the opinion evidence from Mr. Friddle/Dr. Smith (doc. 33 at 19-23). Specifically, the plaintiff argues that the ALJ erred by failing to afford the opinions great weight as treating physician opinions as well as by discounting the opinions because they were completed after the date last insured because the opinion forms indicated that the limitations existed during the applicable period (id.). Further, the plaintiff argues that the records from these providers are only unsupportive because the plaintiff is not working and that the opinions were based on if the plaintiff were to attempt to return to work (id.). As noted above, the plaintiff's assertion that the ALJ was required to afford the opinions of Mr. Friddle/Dr. Smith great weight based on the treating physician rule fails because it relies on regulations that are not applicable to the instant matter. See 20 C.F.R. §§ 404.1527 (noting that the treating physician rule only applies to claims filed before March 27, 2017), 404.1520c(a) (noting that an ALJ is not required to defer to or give any specific weight to medical opinions under the updated regulations). Additionally, check-box forms, such as the ones completed by Mr. Friddle/Dr. Smith, have limited probative value in this court. See Freeman v. Colvin, C/A No. 7:14-cv-00199, 2015 WL 5056734, at *4 (W.D. Va. Aug. 26, 2015) (noting that checkbox forms have “limited probative value” (citing Leonard v. Astrue, C/A No. 2:11-cv-00048, 2012 WL 4404508, at *4 (W.D. Va. Sept. 25, 2012))); see also Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir.1993) (“Such check-the-box assessments without explanatory comments are not entitled to great weight, even when completed by a treating physician.”)). Further, as explained by the ALJ, the opinions from Mr. Friddle/Dr. Smith were not supported by their treatment records or consistent with other record evidence, making them unpersuasive.
As an initial matter, the plaintiff's attempt to undermine the ALJ's supportability analysis merely based on one question check-marked by Mr. Friddle/Dr. Smith on the second opinion form fails. Indeed, appearing to recognize that the treatment records for Mr. Friddle/Dr. Smith were not supportive of their severe opined limitations, the second opinion form included a question attempting to explain away the discrepancy (Tr. 1152). The undersigned finds this argument unavailing. While a novel argument, the plaintiff has provided no case law in support of her assertion that a provider can cure an opinion's lack of support by treatment records merely by noting that the opinion refers to an individual's abilities if he/she were to return to work while the treatment records are reflective of an individual's functioning while not working. For example, as noted by the ALJ, although Mr. Friddle/Dr. Smith noted that the plaintiff had mostly marked limitations in the domain of sustaining concentration and persistence, their treatment records during the relevant period (totaling five visits) noted normal concentration and focus (Tr. 413-22). Indeed, the only abnormal examination findings noted during the plaintiff's treatment with these providers during the relevant period were ambulating slowly with a cane and one mention of a sad tearful mood secondary to situational stressors (the death of a brother-in-law) (Tr. 413-22). As noted by the ALJ, these treatment notes, indicating that the plaintiff's symptoms were mild at most, did not support the marked limitations opined by Mr. Friddle/Dr. Smith (Tr. 827).
Similarly, as noted by the ALJ, other record evidence was inconsistent with the severe limitations opined by Mr. Friddle/Dr. Smith. For example, as noted by the ALJ, upon evaluation by Dr. Wagner, the plaintiff had slowed, but intelligible speech (Tr. 369, 827). Further, in evaluating the plaintiff's ability to pay attention, Dr. Wagner noted that the plaintiff's attention span for auditory information was average, she had borderline complex auditory attention, and she had low average sustained auditory attention (Tr. 370). The plaintiff's visual attention accuracy was borderline, but her speed of processing was 19 average “in the context of visual scanning in the presence of distractors” (Tr. 371). As noted by the ALJ, these findings - based on attention and concentration testing performed during the relevant period - stand in stark contrast to the opinions of Mr. Friddle/Dr. Smith that the plaintiff would be off task continually during a workday and had marked limitations in almost every area listed addressing sustained concentration and persistence (detailed above) (Tr. 827). Further, the plaintiff's mental status examinations upon presentment to Dr. Zhou-Wang were normal, including attention and memory (Tr. 384, 827). Similarly, Dr. Messer noted some slowed speech and thought processes, but the plaintiff was alert and fully oriented with normal mood, behavior, dress, and motor activity (Tr. 481). Likewise, upon examination by Dr. Joudeh, although the plaintiff had moderate anxiety and depression, she was alert and fully oriented; had intact thought process and judgment; and had no hallucinations, delusions, or racing thoughts (Tr. 508). Indeed, although the plaintiff testified that her attention span and concentration were affected by her impairments during the second administrative hearing and marked on her function reports that she struggled with attention and concentration, she also testified that she prepared and maintained a headache/seizure journal spanning several years (and submitted the calendar as an exhibit), her hobbies included reading and painting, she was able to attend church/mass, and she used Facebook sometimes (Tr. 45-46, 255, 256, 322-34, 854, 855-56, 866, 868). This record evidence, as noted by the ALJ, was not consistent with the severe opined limitations from Mr. Friddle/Dr. Smith (Tr. 827). In light of the foregoing, the ALJ's evaluation of opinion evidence from Mr. Friddle/Dr. Smith is supported by substantial evidence, without clear error, and should be affirmed.
Dr. Loudermilk
Dr. Loudermilk completed a form for the plaintiff for the South Carolina Department of Motor Vehicles entitled “Disabled Placard and License Pate Application” on January 12, 2015, well before the alleged onset date in the instant matter. On the form, Dr. Loudermilk indicated that the plaintiff was permanently disabled because she could not walk one hundred feet nonstop without aggravating an existing medical condition, including the increase of pain. The plaintiff could also not walk without the use of an assistive device (Tr. 624).
The ALJ considered the opinion by Dr. Loudermilk and found it somewhat persuasive (Tr. 826-27). Specifically, the ALJ found that the evidence supported Dr. Loudermilk's conclusion that the plaintiff required the use of an assistive device (as provided for in the plaintiff's RFC) (Tr. 826-27). The ALJ did not find persuasive Dr. Loudermilk's opinion that the plaintiff could not walk more than one hundred feet (T r. 827). First, as noted above, check-box forms - such as the one completed by Dr. Loudermilk -have limited probative value. See Freeman, 2015 WL 5056734, at *4. Nevertheless, the plaintiff argues that the ALJ should have afforded Dr. Loudermilk's opinion great weight as that of a specialist and treating physician, as well as that Dr. Loudermilk's opinion was not inconsistent with the record evidence (doc. 33 at 23-26). The undersigned disagrees. As an initial matter, as noted above, the plaintiff once again references the improper standard for evaluation of opinion evidence for the instant matter because her application was filed after March 27, 2017. See 20 C.F.R. § 404.1527.
Further, the plaintiff has not referenced record evidence showing that Dr. Loudermilk's opinion regarding her ability to walk was consistent with the record evidence as would be required to show that the ALJ's evaluation of Dr. Loudermilk's opinion was not based on substantial evidence. Indeed, the plaintiff cannot rely on supportability to show that the ALJ erred because Dr. Loudermilk did not treat the plaintiff during the relevant period. Further, as noted by the ALJ, Dr. Loudermilk's opinion is not consistent with other record evidence from the relevant period. For example, although the plaintiff argues that consultative examination findings from Dr. Joudeh are consistent with Dr. Loudermilk's walking limitations, she appears to misunderstand Dr. Joudeh's opinion, which found some range of motion (“ROM”) deficits in the plaintiff's lumbar spine, but also found that the plaintiff would only occasionally have trouble walking secondary to her conditions (Tr. 508). Indeed, during the examination, Dr. Joudeh noted that the plaintiff had normal gait and station without an assistive device, although the plaintiff denied being able to squat, tandem walk, heel walk, or toe walk (Tr. 511). Further, although the plaintiff argues that Dr. Loudermilk's opinion is consistent with other record evidence, such as remote magnetic resonance imaging (“MRI”) findings noting severe osteoarthritis as well as handicap placard applications completed by other providers, she has provided no reference to those items in the record evidence nor provided a basis for how such evidence would undermine the ALJ's determination that Dr. Loudermilk's opinion was inconsistent with other record evidence (see doc. 33 at 24, 25 (referencing remote MRI results and other handicap applications with no citations)). Indeed, as recognized by the ALJ, treatment records for the applicable period noted normal gait, no gait or balance change, and that the plaintiff was able to ambulate slowly with a cane (Tr. 376, 383-84, 413, 415, 417, 419, 421). Similarly, Dr. Messer noted that although the plaintiff had trouble getting up from a chair to begin walking secondary to hip and back pain, the plaintiff was able to walk with a cane, was overall in good physical condition, and Dr. Messer encouraged the plaintiff to engage in routine exercise (Tr. 484). Similarly, pain management records (from other providers in Dr. Loudermilk's practice), noted that the plaintiff's medications offered good pain relief, her conditions were reasonably/fairly well-controlled, and the plaintiff was attending physical therapy to improve her balance (Tr. 601-09, 612-17). The plaintiff's reported ADLs were also inconsistent with Dr. Loudermilk's opined walking limitations, including that she could shop in stores for groceries, attend church, cooked easy meals, cleaned the hardwood floors, and washed small loads of laundry (Tr. 253-54, 853). This record evidence, as recognized by the ALJ, was not consistent with Dr. Loudermilk's notation that the plaintiff could only walk one hundred feet. Accordingly, substantial evidence supports the ALJ's determination that Dr. Loudermilk's opinion was only somewhat persuasive.
Dr. Joudeh
On December 11,2017, Dr. Joudeh completed a consultative examination of the plaintiff. The plaintiff reported a pain level of 6/10, but her sensory examination was normal. The plaintiff had severe generalized arthralgia, myalgia, and spine tenderness. The plaintiff had normal ROM in her cervical spine, bilateral shoulders, bilateral wrists, bilateral elbows, bilateral knees, bilateral hips, and bilateral ankles. Straight leg raise testing was negative both sitting and supine. The plaintiff's lumbar spine ROM was somewhat reduced, with flexion 45° (normal 90°), lumbar spine extension 15° (normal 25°), and lateral flexion 15° (normal 25°). The plaintiff denied the ability to squat, tandem walk, heel walk, and toe walk secondary to back pain and left hip/leg pain. The plaintiff had moderate anxiety and depression, but was alert and fully oriented. Her thought content, thought process, and judgment were intact with no hallucinations, delusions, or racing thoughts. The plaintiff's x-rays showed moderate arthritic changes to the lumbar spine along with significant decreased curvature of the lumbar spine. Dr. Joudeh opined that the plaintiff's “[a]bility to lift, carry, push, pull, sit, stand, walk is occasionally limited secondary to degenerative disk disease and facet arthropathy. Posture is occasional. Fine motor skills normal. Overhead forward reaching normal. Environmental exposure normal. Traveling is normal” (Tr. 507-11).
The ALJ considered the opinion by Dr. Joudeh and found it somewhat persuasive, noting that although Dr. Joudeh's opinion was not clear as to the plaintiff's functional abilities, his opined limitations were generally supportive of the limitations outlined by Dr. Joudeh (Tr. 826). Nonetheless, the plaintiff argues that the ALJ erred in his evaluation of Dr. Joudeh's opinion because it was entitled to great weight and was supported by objective evidence (although the plaintiff provides no reference to record evidence in support of her assertion) (doc. 33 at 26-28). The court disagrees. First, the plaintiff's argument appears to assume that Dr. Joudeh's reference to “occasional” refers to 1/3 of the day - which is how it is defined in Social Security regulations. However, such an assumption finds no basis in Dr. Joudeh's examination of the plaintiff. Further, the plaintiff's main argument appears to be that an occasional limitation in the ability to sit requires a finding of disability as well as that an occasional limitation in the ability to walk equates to Dr. Loudermilk's opinion that the plaintiff could not walk more than one hundred feet, which also requires a finding of disability (doc. 33 at 28). These arguments, however, require assumptions as to the meaning of Dr. Joudeh's opinion and, more importantly, ignore the ALJ's explanation that Dr. Joudeh's less than clear opinions were only somewhat persuasive. For example, as outlined above with respect to Dr. Loudermilk's opinion, the record evidence did not support greater walking limitations than those provided for in the RFC. See supra pp. 20-23. Indeed, the plaintiff's passing contention that an occasional limitation in her ability to sit would preclude all work is presented in a perfunctory manner, meaning the matter is waived. See Jacobus v. Comm'r of Soc. Sec., 664 Fed.Appx. 774, 777 n.2 (11th Cir. 2016) (noting that the plaintiff's “perfunctory argument” was arguably abandoned (citing Singh v. U.S. Atty Gen., 561 F.3d 1275, 1278-79 (11th Cir. 2009) (explaining that simply stating an issue exists, without further argument or discussion, constitutes abandonment of that issue)); Rice v. Comm'r of Soc. Sec., 169 Fed.Appx. 452, 454 (6th Cir. 2006) (finding that issues raised in a perfunctory manner “without elaboration or legal argument” “unaccompanied by some effort at developed argumentation” were deemed waived (internal citations and quotation marks omitted)); Parms v. Colvin, C/A No. 1:13-cv-01002, 2015 WL 1143209, at *8 n.10 (M.D. N.C. Mar. 13, 2015) (noting that the “Court need not address . . . perfunctory arguments by counsel), memorandum and recommendation adopted by doc. 32 (M.D. N.C. Mar. 31, 2015). The court is not required to rummage through the administrative record to construct and present a well-supported position for the plaintiff. See Hayes v. Self-Help Credit Union, C/A No. 1:13-cv-00880, 2014 WL 4198412, at *2 (M.D. N.C. Aug. 22, 2014) (noting that “[i]t is not the role or the responsibility of the Court to undertake the legal research needed to support or rebut a perfunctory argument (internal citations omitted)). As such, the undersigned finds that the ALJ's determination that Dr. Joudeh's opinions were somewhat persuasive is supported by substantial evidence and should be affirmed.
As outlined above, the ALJ appropriately explained his findings regarding the persuasiveness of the opinions of Mr. Friddle/Dr. Smith, Dr. Loudermilk, and Dr. Joudeh, as required by the regulations. This court should not disturb the ALJ's weighing of the medical opinion evidence of record absent some indication the ALJ dredged up “specious inconsistencies.” Dunn v. Colvin, 607 Fed.Appx. 264, 267 (4th Cir. 2015) (citing Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992)). As such, the undersigned finds that the ALJ's evaluation of the opinion evidence is based upon substantial evidence, without legal error, and should be affirmed.
CONCLUSION AND RECOMMENDATION
The Commissioner's decision is based upon substantial evidence and is free of legal error. Now, therefore, based upon the foregoing, IT IS RECOMMENDED that the Commissioner's decision be affirmed.
IT IS SO RECOMMENDED.
The attention of the parties is directed to the important notice on the following page.
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
250 East North Street
Greenville, South Carolina 29601
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).