Opinion
C. A. 9:22-cv-03710-MGL-MHC
01-18-2024
Arthur O.,[1]Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
MOLLY H. CHERRY UNITED STATES MAGISTRATE JUDGE.
Plaintiff Arthur O. (Plaintiff) filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the Administrative Law Judge's (ALJ's) final decision denying his claim for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) under the Social Security Act (Act). This case was referred to the undersigned for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.). For the reasons that follow, the undersigned recommends that the ALJ's decision be affirmed.
Citations to the record refer to the page numbers in the Social Security Administration Record. See ECF No. 8.
Plaintiff filed his DIB and SSI applications in January 2015, alleging disability beginning December 24, 2010. R.pp. 206-20. After a hearing, an ALJ found Plaintiff was not disabled under the Act in an order dated April 30, 2018. R.pp. 12-25.
Plaintiff appealed to this Court. R.pp. 1046-51. On January 27, 2021, this Court remanded the action for further proceedings. R.pp. 1052-73. Following this Court's order, the Appeals Council vacated the ALJ's decision, and remanded the case back to the ALJ for further administrative proceedings. R.pp. 1074-76.
On November 17, 2021, the ALJ held another hearing where Plaintiff, who was represented by counsel, and an impartial vocational expert testified. R.pp. 989-1018. On December 22, 2021, the ALJ issued a decision finding that Plaintiff was not disabled under the Act. R.pp. 964-82. This appeal followed.
Because this Court writes primarily for the parties who are familiar with the facts, the Court dispenses with a lengthy recitation of the medical history from the relevant period. To the extent specific records or information are relevant to or at issue in this case, they are addressed within the Discussion section below.
II. APPLICABLE LAW
A. Scope of Review
Jurisdiction of this Court is pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Under § 405(g), judicial review of a final decision regarding disability benefits is limited to determining (1) whether the factual findings are supported by substantial evidence, and (2) whether the correct legal standards were applied. 42 U.S.C. § 405(g); Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002) (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)). Accordingly, a reviewing court must uphold the final decision when “an ALJ has applied correct legal standards and the ALJ's factual findings are supported by substantial evidence.” Brown v. Comm r Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2017) (internal quotation marks omitted).
“Substantial evidence” is an evidentiary standard that is not high: it is “more than a mere scintilla” and means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). A reviewing court does not reweigh conflicts in evidence, make credibility determinations, or substitute its judgment for that of the ALJ. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ].” Id. (alteration in original) (internal quotation marks and citation omitted). However, this limited review does not mean the findings of an ALJ are to be mechanically accepted, as the “statutorily granted review contemplates more than an uncritical rubber stamping of the administrative action.” Howard v. Saul, 408 F.Supp.3d 721, 725-26 (D.S.C. 2019) (quoting Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969)).
B. Social Security Disability Evaluation Process
To be considered “disabled” within the meaning of the Social Security Act, a claimant must show that he has an impairment or combination of impairments which prevent him from engaging in all substantial gainful activity for which he is qualified by his age, education, experience, and functional capacity, and which has lasted or could reasonably be expected to last for a continuous period of not less than twelve months. See 42 U.S.C. § 423. The Social Security Administration established a five-step sequential procedure in order to evaluate whether an individual is disabled for purposes of receiving benefits. See 20 C.F.R. §§ 404.1520, 416.920; see also Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015) (outlining the questions asked in the five-step procedure). The burden rests with the claimant to make the necessary showings at each of the first four steps to prove disability. Mascio, 780 F.3d at 634-35. If the claimant fails to carry his burden, he is found not disabled. Lewis v. Berryhill, 858 F.3d 858, 861 (4th Cir. 2017). If the claimant is successful at each of the first four steps, the burden shifts to the Commissioner at step five. Id.
At the first step, the ALJ must determine whether the claimant has engaged in substantial gainful activity since his alleged disability onset date. 20 C.F.R. §§ 404.1520(b), 416.920(b). At step two, the ALJ determines whether the claimant has an impairment or combination of impairments that meet the regulations' severity and duration requirements. Id. §§ 404.1520(c), 416.920(c). At step three, the ALJ considers whether the severe impairment meets the criteria of an impairment listed in Appendix 1 of 20 C.F.R. part 404, subpart P (the “Listings”) or is equal to a listed impairment. If so, the claimant is automatically eligible for benefits; if not, before moving on to step four, the ALJ assesses the claimant's residual functional capacity (RFC). Id. §§ 404.1520(d), (e), 416.920(d), (e); Lewis, 858 F.3d at 861.
The RFC is “the most the claimant can still do despite physical and mental limitations that affect her ability to work.” Mascio, 780 F.3d at 635 (internal quotation marks and citations omitted).
At step four, the ALJ determines whether, despite the severe impairment, the claimant retains the RFC to perform his past relevant work. 20 C.F.R. §§ 404.1520(e), (f), 416.920(e), (f). If the ALJ finds the claimant capable of performing his past relevant work, he is not disabled. Id. §§ 404.1520(f), 416.920(f). If the requirements to perform the claimant's past relevant work exceed his RFC, then the ALJ goes on to the final step.
At step five, the burden of proof shifts to the Social Security Administration to show that the claimant can perform other jobs existing in significant numbers in the national economy, considering the claimant's age, education, work experience, and RFC. Id. §§ 404.1520(g), 416.920(g); Mascio, 780 F.3d at 634-35. Typically, the Commissioner offers this evidence through the testimony of a vocational expert answering hypotheticals that incorporate the claimant's limitations. Mascio, 780 F.3d at 635. “If the Commissioner meets her burden, the ALJ finds the claimant not disabled and denies the application for benefits.” Id.
III. ADMINISTRATIVE FINDINGS
The ALJ employed the statutorily-required five-step sequential evaluation process to determine whether Plaintiff was disabled from the alleged onset date of December 24, 2010. R.pp. 964-88. The ALJ found, in pertinent part:
1. The claimant meets the insured status requirements of the Social Security Act through September 30, 2015.
2. The claimant has not engaged in substantial gainful activity since December 24, 2010, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairment: degenerative disc disease of the cervical and lumbar spine (20 CFR 404.1520(c) and 416.920(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c) except he cannot climb ladders, ropes, or scaffolds; he can occasionally kneel, squat, and crawl; and he must avoid working at unprotected heights.
6. The claimant is capable of performing past relevant work as a dishwasher. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565 and 416.965).
7. The claimant has not been under a disability, as defined in the Social Security Act, from December 24, 2010, through the date of this decision (20 CFR 404.1520(f) and 416.920(f)).R.pp. 966-82.
IV. DISCUSSION
Plaintiff argues the ALJ erred in evaluating medical opinion evidence. ECF No. 9 at 2938. Specifically, Plaintiff argues that the ALJ erred in assessing the medical opinions of his treating physicians: Doctors Rita Dhaliwal, Robert Bosshardt, and Craig Woodard. He argues the ALJ's decision to give these doctors' opinions “little weight” was unreasonable, and generally maintains that the ALJ's rationale for discounting these opinions was not supported by substantial evidence. For the reasons that follow, Plaintiff has not shown remand is warranted.
Plaintiff's brief and the prior ALJ decision appear to refer to Dr. Woodard as Dr. Woodson. See R.pp. 22, 946; ECF No. 9 at 23, 31-32, 37.
A. Medical opinion evidence
ALJs are required to include “a narrative discussion describing how the evidence supports his explanation of the varying degrees of weight he gave to differing opinions concerning [the claimant's] conditions and limitations.” Woods v. Berryhill, 888 F.3d 686, 695 (4th Cir. 2018) (citation and internal quotation marks omitted)). Generally, ALJs should accord “‘more weight to medical opinions from [a claimant's] treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [a claimant's] medical impairment(s).'” Id. (quoting 20 C.F.R. § 404.1527(c)(1)-(2)).
The “treating physician rule” established by both SSA policy and Fourth Circuit precedent, “requires that ALJs give ‘controlling weight' to a treating physician's opinion on the nature and severity of the claimant's impairment if that opinion is (1) ‘well-supported by medically acceptable clinical and laboratory diagnostic techniques' and (2) ‘not inconsistent with the other substantial evidence' in the record.” Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 106 (4th Cir. 2020) (emphasis added) (quoting 20 C.F.R. § 404.1527(c)(2)); see also SSR 96-2p, 1996 WL 374188 (S.S.A. July 2, 1996).
For claims filed after March 27, 2017, the regulations have been amended, and several of the prior Social Security Rulings, including SSR 96-2p, have been rescinded. The new regulations provide that the Social Security Administration “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources.” 20 C.F.R. §§ 404.1520c, 416.920c (2017). As the claims in the present case were filed before March 27, 2017, they have been analyzed pursuant to the treating physician rule set forth herein.
If an ALJ decides not to give controlling weight to a treating physician's opinion, an ALJ must determine the appropriate weight to be given to the opinion by considering all of the factors listed in 20 C.F.R. § 404.1527(c). Arakas, 983 F.3d at 106. These factors include: “(1) the ‘[l]ength of the treatment relationship and the frequency of examination'; (2) the ‘[n]ature and extent of the treatment relationship'; (3) ‘[s]upportability,' i.e., the extent to which the treating physician ‘presents relevant evidence to support [the] medical opinion'; (4) ‘[consistency,' i.e., the extent to which the opinion is consistent with the evidence in the record; (5) the extent to which the treating physician is a specialist opining as to ‘issues related to his or her area of specialty'; and (6) any other factors raised by the parties ‘which tend to support or contradict the medical opinion.'” Dowling v. Comm r of Soc. Sec. Admin., 986 F.3d 377, 384-85 (4th Cir. 2021) (quoting 20 C.F.R. § 404.1527(c)(2)(i)-(6)).
Further, the ALJ is required to provide an explanation in the decision for what weight is given to a treating source's opinion and, if rejected, why it was rejected. See 20 C.F.R. §§ 404.1527(c), 416.927(c). When an ALJ's decision is not favorable to the claimant, the decision “must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight.” SSR 96-2p, 1996 WL 374188 at *5.
Here, Drs. Dhaliwal, Bosshardt, and Woodard completed one-page questionnaires wherein they opined on Plaintiff's impairments. R.pp. 944-46. Drs. Dhaliwal and Bosshardt both opined that Plaintiff became disabled in August 2016, while Dr. Woodard opined that Plaintiff became disabled in February 1989. In considering the medical opinions of Drs. Dhaliwal and Bosshardt, the ALJ found:
The record also contains several opinions from the claimant's treating doctors. On November 22, 2016, Dr. Rita Dhaliwal opined that the claimant is unable to engage in anything more than light work due to chronic pain from degenerative joint disease and bilateral sciatica in the lumbar spine with stenosis. She opined that the claimant is unable to sit, stand and walk for prolonged periods. Dr. Dhaliwal opined that the claimant would require rest for significantly more than an hour and he would have a severe inability to concentrate on specific tasks due to his traumatic brain injury. She indicated that the claimant had been severely impaired since August 2016 (Exhibits B8F; B11F). Through at least December 2015, James Elmore, M.D., was the claimant's VA primary care provider (Exhibit B12F/312-314). On June 20, 2016, VA treatment records indicate that Dr. Dhaliwal was the claimant's primary care provider (Exhibit B12F/297). The records suggest that as of the claimant's November 22, 2016, follow up visit, he had seen Dr. Dhaliwal only two or three times (Exhibit B12F). Further, Dr. Dhaliwal's mental status examinations of the claimant had been unremarkable and did not document any concentration deficits or other findings associated with traumatic brain injury. Her treatment was focused on the claimant's pain complaints.
Dr. Robert Bosshardt also provided a medical source statement regarding the claimant's alleged impairments and functional limitations on March 30, 2017. He opined that the claimant requires rest from the workstation for significantly more than an hour during the working portion of the workday due to chronic pain from degenerative joint disease, lymphocytic colitis causing bowel stress, incontinence and multiple restroom breaks. He opined that the claimant would have problems with attention and concentration that would be sufficient to frequently interrupt tasks during the working portion of the workday. He opined that the claimant has been impaired since August 2016 (Exhibit B9F). Notably, treatment records indicate that Dr. Bosshardt is a gastroenterologist who first examined the claimant in August 2016 and saw the claimant for the second time in March 2017 (Exhibit B12F/191-197, 275-278). Subsequent treatment records fail to document persistent severe symptoms of the claimant's colitis. At the November 2021 hearing, the claimant testified that these symptoms were no longer as severe as they once were.
Overall, the record fails to show that the claimant's colitis imposed more than minimal limitations for a period of more than 12 months.
The undersigned accords little weight to Dr. Dhaliwal's and Dr. Bosshardt's opinions because the assessments are not supported by relevant objective medical evidence, inconsistent with evidence from other medical and nonmedical sources, and contradicted by other factors. First, as noted above, the medical source(s) infrequently examined the claimant over a relatively brief period. As a result, the treating relationship did not last long enough for the medical sources to have obtained a longitudinal picture of the claimant's medical condition at the time the opinions were provided. Second, an opinion on what the claimant could still do despite the claimant's impairments was not provided. Third, the objective medical evidence does not support the assessments. As discussed above, diagnostic imaging of the claimant's lumbar and cervical spine showed mild abnormalities. His physical examination during his consultative examination was also normal. More importantly, there is evidence of malingering with regards to the claimant's use of an assistive device and his ability to stand and walk. The claimant's treating doctors assessed the claimant with malingering and determined that the claimant exaggerated his inability to stand because he stood up without difficulty. The consultative examiner also observed the claimant pushing his walker with one hand and climbing over the tailgate of a pickup truck and into the truck bed with no difficulty. This evidence certainly fails to support Dr. Dhaliwal's and Dr. Bossherdt's opinions of impairments so severe that the claimant would be unable to engage in anything more than light work or their opinions that he is unable to sit, stand and walk for prolonged periods. Thus, little weight is accorded to their opinions.R.pp. 978-79.
In considering Dr. Woodard's opinion, the ALJ found:
In addition, Dr. Woodard provided a medical source statement regarding the claimant's alleged impairments and functional limitations on July 12, 2017. Treatment notes indicate that the claimant first presented to Dr. Woodard in April 2017 (B12F/68-74). On the claimant's second visit, Dr. Woodard noted that he completed paperwork regarding the claimant's traumatic brain injury with secondary cognitive impairment, dizziness/imbalance, and chronic headaches (Exhibit B12F/160-166). Dr. Woodard opined that the claimant was unable to work secondary to chronic symptoms related to traumatic brain injury. He opined that the claimant would have problems with attention and concentration that would be sufficient to frequently interrupt tasks during the working portion of the workday. He indicated that the claimant continued to experience frequent headaches, cognitive impairment, dizziness and gait impairment. Dr. Woodard noted that the claimant had been impaired since the traumatic brain injury on February 18, 1989. (Exhibit B10F).
[]
The undersigned accords little weight to Dr. Woodard's opinion because it is not supported by relevant objective medical evidence, inconsistent with evidence from other medical and nonmedical sources, and contradicted by other factors. First, Dr. Woodard infrequently examined the claimant over a relatively brief period. As a result, the treating relationship did not last long enough for the medical source to have obtained a longitudinal picture of the claimant's medical condition prior to providing this opinion. Second, an opinion on what the claimant could still do despite the claimant's impairments was not provided. Third, the objective medical evidence does not support the assessments. Psychological consultative examiner, Dr. Cleaveland, determined that the claimant's memory, attention and concentration were normal. The claimant achieved a Full Scale IQ (FSIQ) of 88, which is in the low average range and inconsistent with a finding of cognitive impairment. Fourth, evidence from other medical or nonmedical sources are inconsistent with the assessments. For example, this opinion is inconsistent with the overall medical evidence and the claimant's work history. The claimant was able to engage in substantial gainful activity for many years after his alleged traumatic brain injury. The claimant's earnings record consistently showed earnings from 1990-2011 (Exhibit B6D). Last, the medical opinion is inconsistent with the medical source's own treatment records that document an unremarkable mental status examination other than occasional slight speech hesitancy. Dr. Woodard's indication that the claimant's gait impairment would significantly limit his ability to work is inconsistent with his finding of slightly wide based gait without ataxia. There is no evidence to establish that the claimant continued to take any specific migraine medication regimen for more than a brief period. As such, little weight is accorded to Dr. Woodard's opinion.R.pp. 979-80 (paragraph break added for ease of reading).
Upon review, remand is not warranted. As an initial matter, the undersigned has no problem following the ALJ's weighing of the medical opinions. The ALJ's discussion of the opinion evidence is thorough, and it is clear why the ALJ afforded Drs. Dhaliwal's, Bosshardt's, and Woodard's opinions “little weight.” Consequently, the undersigned is not “left to guess” at why the ALJ weighed the opinions like he did and finds the ALJ's conclusions are supported by substantial evidence. See Biestek, 139 S.Ct. at 1154 (noting substantial evidence is an evidentiary standard that is not high: it is “more than a mere scintilla” and means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion”).
Nevertheless, Plaintiff argues: (1) that the ALJ essentially issued the same rationale that was previously rejected by this Court (ECF No. 9 at 33); (2) that it is “unreasonable” to discount a treating physician's opinion because the treatment relationship is short (ECF No. 9 at 33-34); (3) it was unreasonable for the ALJ to suggest pain cannot cause limitations with concentration, such that the ALJ's criticism of Dr. Dhaliwal's opinion was not supported by substantial evidence (ECF No. 9 at 34); (4) the ALJ's finding that the record failed to show Plaintiff's colitis imposed more than minimal limitations for a period of more than 12 months was an improper basis to reject Dr. Bosshardt's opinion (ECF No. 9 at 34-35); (5) the ALJ offered general conclusory statements that were insufficient to satisfy the ALJ's duty to provide specific reasons for the weight accorded to the opinion evidence (ECF No. 9 at 35); (6) Dr. Dhaliwal and Dr. Bosshardt “did not need to list out a full set of abilities in addition [to the limitations they provided] before their opinions could be credited” (ECF No. 9 at 35); (7) the ALJ played doctor and/or otherwise mischaracterized the evidence (ECF No. 9 at 35-36); and (8) the ALJ erred in considering whether Plaintiff was malingering (ECF No. 9 at 37).
None of Plaintiff's arguments present a valid reason for remand, and they are each addressed below within the appropriate subsection(s).
1. The ALJ's decision appropriately considered and addressed the issues previously noted.
To the extent Plaintiff argues the ALJ issued the same rationale that was previously rejected by this Court (ECF No. 9 at 33) or that the ALJ's decision was “conclusory” (ECF No. 9 at 35), such arguments are without merit. The ALJ's previous opinion was rejected because it was not clear that the ALJ had considered the factors under 20 C.F.R. §§ 404.1527(c), 416.927(c), and because the offered reasons for discounting the opinion evidence were conclusory and not subject to meaningful review. See R.pp. 1067-71. Here, it is clear that the ALJ considered each of the factors under 20 C.F.R. §§ 404.1527(c), 416.927(c) in assigning little weight to the opinions of Drs. Dhaliwal, Bosshardt, and Woodard. See R.pp. 977-80. The ALJ acknowledged that Drs. Dhaliwal, Bosshardt, and Woodard were treating sources, and considered whether they were specialists by noting that Dr. Dhaliwal was a primary care physician; Dr. Bosshardt was a gastroenterologist; and Dr. Woodard was a neurologist. The ALJ discussed Plaintiff's longitudinal treatment history with Drs. Dhaliwal, Bosshardt, and Woodard. The ALJ addressed the consistency and supportability of the opinions of Drs. Dhaliwal, Bosshardt, and Woodard. Further, the ALJ considered “other factors”-such as evidence of malingering and Plaintiff's work history-which tended to undermine the medical opinions. The ALJ's discussion was sufficient. See Dowling, 986 F.3d at 384-85 (listing all of the factors an ALJ must consider in the event an ALJ decides not to give controlling weight to a treating physician's opinion).
Similarly, Plaintiff's suggestion that the ALJ's discussion of the opinion evidence was “conclusory” (ECF No. 9 at 35) is without merit. Plaintiff's argument focuses on a single sentence and ignores all the other sentences that provide context and support to the sentence Plaintiff highlights. See ECF No. 9 at 35. To view that sentence in a vacuum ignores that the ALJ's decision is to be read as a whole. See Gassaway v. Colvin, No. 1:12-CV-00982 IDD, 2013 WL 2389894, at *6 (E.D. Va. May 28, 2013) (“This Court is required to view the ALJ's decision as a whole rather than to conduct a piecemeal assessment of specific sentences.” (citing Wilkins v. Sec 'y, Dep t of Health & Hum. Servs., 953 F.2d 93, 96 (4th Cir. 1991))).
2. The ALJ properly considered the length of the treatment relationships.
Plaintiff's argument, that it was “unreasonable” to discount a treating physician's opinion because the treatment relationship was short (ECF No. 9 at 33-34), is without merit. The ALJ explained that Dr. Dhaliwal was Plaintiff's primary care physician but only treated Plaintiff a handful of times after his initial appointment in June 2016. See R.pp. 978, 1415, 1453, 1489, 1514, 1559, 1572. Similarly, Plaintiff saw Dr. Bosshardt only three times between August 2016 and March 2017 (R.pp. 978-79, 1358, 1471-72, 1526), and Dr. Woodard two times-once in April 2017 and a second time in July 2017 (R.pp. 979, 1439-41, 1458-59). In other words, although Drs. Dhaliwal, Bosshardt, and Woodard were treating sources, they only examined Plaintiff a few times over a brief period. As such, the ALJ reasoned the treating relationships did not last long enough for the medical sources to have obtained a longitudinal picture of Plaintiff's medical condition when they rendered their opinions. R.pp. 978-79. Not only is this a reasonable observation, the ALJ's rationale was well-grounded in the controlling regulations. See 20 C.F.R. §§ 404.1527(c)(2)(i), 416.927(c)(2)(i) (“Generally, the longer a treating source has treated you and the more times you have been seen by a treating source, the more weight we will give to the source's medical opinion.” (emphasis added)); 20 C.F.R. §§ 404.1527(c)(2)(ii), 416.927(c)(2)(ii) (noting ALJs should consider the nature and extent of the treatment relationship).
3. The ALJ did not offer improper reasons in discounting the medical opinions.
To the extent Plaintiff suggests that the ALJ offered improper reasons to discount the medical opinions (Plaintiff's third, fourth, and sixth reasons, see ECF No. 9 at 34-35, 37-38), such arguments are without merit. Plaintiff argues it was unreasonable for the ALJ to suggest that pain cannot cause limitations with concentration, and therefore maintains that the ALJ's criticism of Dr. Dhaliwal's opinion was not supported by substantial evidence (ECF No. 9 at 34). But the ALJ did not make such a suggestion; rather, he merely noted Dr. Dhaliwal's treatment of Plaintiff focused on Plaintiff's pain complaints. R.p. 978. It is notable that Dr. Dhaliwal's treatment of Plaintiff focused on his pain complaints, because this was not Dr. Dhaliwal's stated reason for Plaintiff's inability to concentrate; instead, Dr. Dhaliwal opined that Plaintiff would have a severe inability to concentrate on specific tasks “due to TBI [traumatic brain injury].” R.p. 944. Thus, the ALJ highlighting this fact was not the ALJ suggesting pain cannot cause concentration deficits; rather, it was drawing attention to the fact that Dr. Dhaliwal's stated basis for Plaintiff's inability to concentrate was traumatic brain injury, not pain. And, as the ALJ noted, Dr. Dhaliwal's mental status examinations of Plaintiff had been unremarkable and did not document any concentration deficits or other findings associated with traumatic brain injury. R.p. 978.
Consequently, the ALJ was clearly addressing Dr. Dhaliwal's stated basis for Plaintiff's inability to concentrate. This was not improper. Though the ALJ could have, perhaps, been more explicit, the undersigned is able to cross the logical bridge from the evidence to the ALJ's ultimate conclusion. See Britt v. Saul, 860 Fed.Appx. 256, 262 (4th Cir. 2021) (“Meaningful review is frustrated-and remand necessary-only where we are unable to fathom the rationale in relation to evidence in the record.” (cleaned up) (emphasis added)).
The ALJ's notation that the record failed to show that Plaintiff's colitis imposed more than minimal limitations for more than a twelve-month period was not improper either, despite Plaintiff's apparent suggestion. See ECF No. 9 at 35; see also 20 C.F.R. § 404.1509 (noting, to satisfy the “duration requirement,” an impairment “must have lasted or must be expected to last for a continuous period of at least 12 months”).
Similarly, the ALJ discounted Dr. Woodard's opinion-that Plaintiff had been unable to work since 1989 because of a traumatic brain injury-because it was inconsistent with Plaintiff's work history. R.pp. 946, 979-80. The evidence substantially supports the ALJ's assessment, as Plaintiff worked for many years after his 1989 traumatic brain injury. See R.pp. 35-39, 221-27, 260. Treatment records also documented that Plaintiff continued working during the relevant period. R.pp. 974-75. For example, as the ALJ noted, on June 14, 2016, Plaintiff sought emergency treatment for dehydration and weakness, stating that he had been working outside and not drinking. R.pp. 974-75, 1573. On February 18, 2017, Plaintiff sought emergency treatment of a finger laceration, reporting that the injury occurred when he was removing sod from a trailer. R.pp. 97475, 1484-86. This was not improper.
Plaintiff's next statement that Dr. Dhaliwal and Dr. Bosshardt “did not need to list out a full set of abilities in addition before their opinions could be credited” does not present any argument or basis for remand. See ECF No. 9 at 35. In any event, to the extent Plaintiff apparently implies the ALJ erred in noting that Drs. Dhaliwal, Bosshardt, and Woodard did not offer opinions on what Plaintiff could still do despite his impairments (R.pp. 978-80), such an argument is without merit. In noting this, the ALJ addressed the consistency and supportability of the opinions of Drs. Dhaliwal, Bosshardt, and Woodard. See 20 C.F.R. §§ 404.1527(c)(3), (4), 416.927(c)(3), (4) (providing that supportability and consistency are relevant factors in weighing medical source opinions and noting the “better an explanation a source provides for a medical opinion, the more weight we will give that medical opinion”). In other words, the ALJ was highlighting the fact that these opinions offered little insight into what Plaintiff could still do despite his impairments. This was, clearly, not improper.
4. The ALJ did not play doctor or mischaracterize evidence.
Plaintiff's argument that the ALJ played doctor and/or otherwise mischaracterized the evidence is without merit. See ECF No. 9 at 35-36. The ALJ's discussion of diagnostic imaging showing “mild” findings occurred earlier in the decision:
Diagnostic imaging following his orthopedic evaluation further revealed benign findings. For instance, an x-ray of the claimant's lumbar spine dated June 7, 2013, showed mild spondylosis with moderate findings at L5-S1 and osteopenia. (Exhibit B4F/2).... An October 15, 2016, lumbar spine MRI showed multilevel degenerative disc change with mild spinal canal stenosis at L4-5, with a small annular tear at this level; multilevel neural foraminal narrowing, worst at L5-S1, where it was marked bilaterally; neural foraminal narrowing had worsened slightly since the prior study (Exhibit B12F/20).R.p. 974. A review of the cited exhibits reveals that the ALJ accurately characterized these medical records. Compare R.p. 974 with R.pp. 894, 1295. Furthermore, the ALJ did not “play doctor” as Plaintiff contends, because this portion of the ALJ's decision comes from the medical impressions of the physicians who reviewed the diagnostic images. See R.pp. 894, 1295. Indeed, the ALJ relayed the above conclusions almost verbatim from the “medical impressions” section of the treatment notes. See Id. Thus, the ALJ did not interpret raw medical data. See Smith v. Colvin, No. 6:15-CV-1750-PMD-KFM, 2016 WL 2619474, at *3 (D.S.C. May 9, 2016) (noting the “ALJ's finding that the MRI was unremarkable except for moderate right hip effusion” was not “a lay interpretation of an MRI” but instead was “an accurate summary of notes made by the radiologist who reviewed the MRI”).
Plaintiff highlights the ALJ's notation that “diagnostic imaging of the claimant's lumbar and cervical spine showed mild abnormalities,” and then points to evidence that purportedly shows moderate, rather than mild, degenerative changes. ECF No. 9 at 35-36. To the extent Plaintiff argues the evidence he cites in his brief supports his position, this Court may not overturn a decision that is supported by substantial evidence just because the record may contain conflicting evidence. See Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996) (“We must sustain the ALJ's decision, even if we disagree with it, provided the determination is supported by substantial evidence . . . [t]he duty to resolve conflicts in the evidence rests with the ALJ, not with a reviewing court.”). The existence of other evidence in the record that arguably supports Plaintiff's position does not mean the ALJ's decision is unsupported. See, e.g., Johnson v. Kijakazi, No. 0:21-CV-01970-DCN-PJG, 2022 WL 4298347, at *5 (D.S.C. Sept. 19, 2022) (noting the fact that the claimant could point to other evidence which supported her position did not mean the ALJ's analysis of Listing 12.05 B was unsupported). Moreover, it is the job of the ALJ to weigh evidence and resolve any evidentiary conflicts, not this Court. See Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (“In reviewing for substantial evidence, we do not undertake to reweigh conflicting evidence, make credibility determinations, or substitute our judgment for that of the [ALJ].”).
5. The ALJ properly considered malingering.
Finally, Plaintiff's argument that the ALJ erred in considering whether Plaintiff was malingering (ECF No. 9 at 37) is meritless. As the ALJ explained, Dr. Kerri Kolehma noted that the walker Plaintiff used “did not serve any functional use for [Plaintiff's] gait” as Plaintiff pushed it out in front of him. R.p. 898. On several visits, Plaintiff ambulated with a standard cane (See, e.g., R.pp. 542, 1456), but one treatment note indicated that the cane was not at the appropriate height (R.pp. 373, 487), and another showed that Plaintiff exaggerated his inability to stand and could walk at a “brisk” pace without the use of a cane (R.p. 812). Two other treatment notes showed that physicians assessed Plaintiff with possible malingering because of his frequent emergency room visits for concerns of pain. R.pp. 757, 812. Other treatment notes showed that Plaintiff's physical performance was not consistent with his reported deficits and pain. See, e.g., R.p. 784 (“States that he requires assistance with all [activities of daily living] including bathing, dressing, and feeding. It is unclear why he would need this assistance since he was able to move without difficulty in the clinic.”); R.p. 785 (“He states that he is so debilitated that he requires assistance with all [daily activities]” but appeared physically “able to ambulate into the clinic without difficulty and perform all actions required for the evaluation without difficulty.”); R.p. 786 (noting patient was not able to ambulate, had stuttered gait, but hospital staff watched Plaintiff walk into the hospital without difficulty; reports pain but able to “easily lift his legs and take both socks off without apparent pain and difficulty”); R.p. 812 (noting exaggerated problems moving but observed by staff moving about “without difficulty” and without use of a cane and “walk[ing] at brisk rate to see pharmacist”). This was a proper consideration. See Long v. Astrue, No. CIV.A. 6:10-539-SB, 2011 WL 3844070, at *10-11 (D.S.C. Mar. 16, 2011) (finding an ALJ appropriately evaluated a medical opinion where the ALJ articulated specific reasons for discounting that opinion, one reason of which was another doctor's opinion that the claimant was malingering), report and recommendation adopted, No. CIV.A. 6:10-539-SB, 2011 WL 3847081 (D.S.C. Aug. 30, 2011).
Plaintiff argues the ALJ's notation that Plaintiff was malingering because he was noted to have “stood up without difficulty,” was from an office visit in February 2010, prior to Plaintiff's alleged onset date of disability. ECF No. 9 at 37 (citing R.p. 812). The Court agrees that this single instance of possible malingering may not serve as substantial evidence to discount the medical opinions. However, this is not the only instance of malingering; rather, the record is replete with other instances, both before and after Plaintiff's alleged disability onset date. Plaintiff does not explain why the ALJ's notations of malingering in the medical record, before and after Plaintiff's alleged onset date, represent error, nor does he explain why the ALJ could not consider malingering that occurred immediately prior to the alleged onset date. Additionally, as illustrated above, the ALJ here offered a plethora of other reasons to discount the medical opinions. Thus, to the extent the ALJ's citation to this treatment note was error, it was harmless.
In sum, the undersigned finds that the ALJ explained what he did, why he did it, and supported his conclusions with evidence. To the extent Plaintiff argues other evidence in the record supports his position, this Court may not overturn a decision that is supported by substantial evidence just because the record may contain conflicting evidence. See Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996) (“We must sustain the ALJ's decision, even if we disagree with it, provided the determination is supported by substantial evidence . . . [t]he duty to resolve conflicts in the evidence rests with the ALJ, not with a reviewing court.”). It is the job of the ALJ to weigh evidence and resolve any evidentiary conflicts, not this Court. See Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (“In reviewing for substantial evidence, we do not undertake to reweigh conflicting evidence, make credibility determinations, or substitute our judgment for that of the [ALJ].” (citation omitted)). Plaintiff merely presents a disagreement with the ALJ's findings and fails to show reversible error. Consequently, the ALJ's decision should be affirmed.
V. CONCLUSION
It is recommended that the decision of the Commissioner be AFFIRMED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court Post Office Box 835 Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).