Opinion
Civil Action No. 8:16-cv-03291-RBH-JDA
01-22-2018
Samuel Broom, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court for a Report and Recommendation pursuant to Local Civil Rule 73.02(B)(2)(a), D.S.C., and 28 U.S.C. § 636(b)(1)(B). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of a final decision of the Commissioner of Social Security ("the Commissioner"), denying Plaintiff's claims for disability insurance benefits ("DIB"). For the reasons set forth below, it is recommended that the decision of the Commissioner be reversed and remanded for administrative action consistent with this recommendation, pursuant to sentence four of 42 U.S.C. § 405(g).
A Report and Recommendation is being filed in this case, in which one or both parties declined to consent to disposition by a magistrate judge.
PROCEDURAL HISTORY
In March 2012, Plaintiff filed an application for DIB alleging an onset of disability date of January 1, 2010. [R. 140-46.] The claim was denied initially and on reconsideration by the Social Security Administration ("the Administration"). [R. 58-86, 89-92.] Plaintiff requested a hearing before an administrative law judge ("ALJ"), and on March 26, 2014, ALJ Todd Jacobson conducted a de novo hearing on Plaintiff's claim. [R. 34-57.] The ALJ issued a decision on June 6, 2014, finding Plaintiff not disabled under the Social Security Act ("the Act"). [R. 18-33.]
At Step 1, the ALJ determined that Plaintiff met the insured status requirements of the Social Security Act ("the Act") through December 31, 2015, and had not engaged in substantial gainful activity since January 1, 2010, the alleged onset date. [R. 23, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had the following severe impairments: cervical and lumbar degenerative disc disease, radiculopathy, myofascial pain, carpal tunnel syndrome, and obesity. [R. 23, Finding 3.] The ALJ also found Plaintiff had non-severe impairments of diabetes and hypertension. [R. 23.] At Step 3, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of an impairment listed in 20 CFR Part 404, Subpart P, Appendix 1. [R. 23, Finding 4.]
The five-step sequential analysis used to evaluate disability claims is discussed in the Applicable Law section, infra.
Before addressing Step 4, Plaintiff's ability to perform his past relevant work, the ALJ found that Plaintiff retained the following residual functional capacity ("RFC"):
After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) with no more than frequent handling and fingering bilaterally; can never climb ladders; can frequently climb stairs, balance, stoop, crouch, kneel, and crawl; with no concentrated exposure to hazards such as moving machinery or unprotected heights, or cold; further limited to unskilled work.[R. 24, Finding 5.] Based on this RFC, the ALJ determined at Step 4 that Plaintiff was unable to perform his past relevant work as a material handler and industrial truck forklift operator. [R. 27-28, Finding 6.] However, considering Plaintiff's age, education, work experience, RFC, and vocational expert ("VE") testimony, the ALJ found that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. [R.28, Finding 10.] Accordingly, the ALJ concluded that Plaintiff had not been under a disability, as defined in the Act, from January 1, 2010, through the date of the decision. [R. 29, Finding 11.]
Plaintiff requested Appeals Council review of the ALJ's decision, but the Council declined review. [R. 1-7.] Plaintiff filed this action for judicial review on October 3, 2016. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff argues that substantial evidence does not support the ALJ's decision and that the case should be remanded for resolution of the issues raised in Plaintiff's brief. [Doc. 18.] Specifically, Plaintiff argues the ALJ erred by failing to properly explain the weight assigned to opinion evidence [id. at 14-22]; by failing to explain the findings regarding Plaintiff's RFC, as required by SSR 96-8p [id. at 22-25]; and by failing to properly evaluate Plaintiff's credibility [id. at 25-29].
The Commissioner contends that substantial evidence supports the ALJ's decision. [Doc. 21.] The Commissioner specifically argues that the ALJ properly weighed the medical opinion evidence [id. at 9-12]; that the ALJ's RFC assessment is supported by the record evidence [id. at 12-13]; and that substantial evidence supports the ALJ's credibility assessment [id. at 13-15].
STANDARD OF REVIEW
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla—i.e., the evidence must do more than merely create a suspicion of the existence of a fact and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) (citing Woolridge v. Celebrezze, 214 F. Supp. 686, 687 (S.D.W. Va. 1963))("Substantial evidence, it has been held, is evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is 'substantial evidence.'").
Where conflicting evidence "allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ)," not on the reviewing court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991) (stating that where the Commissioner's decision is supported by substantial evidence, the court will affirm, even if the reviewer would have reached a contrary result as finder of fact and even if the reviewer finds that the evidence preponderates against the Commissioner's decision). Thus, it is not within the province of a reviewing court to determine the weight of the evidence, nor is it the court's function to substitute its judgment for that of the Commissioner so long as the decision is supported by substantial evidence. See Bird v. Comm'r, 699 F.3d 337, 340 (4th Cir. 2012); Laws, 368 F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).
The reviewing court will reverse the Commissioner's decision on plenary review, however, if the decision applies incorrect law or fails to provide the court with sufficient reasoning to determine that the Commissioner properly applied the law. Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980); see also Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner's decision "is in clear disregard of the overwhelming weight of the evidence, Congress has empowered the courts to modify or reverse the [Commissioner's] decision 'with or without remanding the cause for a rehearing.'" Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971) (quoting 42 U.S.C. § 405(g)). Remand is unnecessary where "the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no purpose." Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974).
The court may remand a case to the Commissioner for a rehearing under sentence four or sentence six of 42 U.S.C. § 405(g). Sargent v. Sullivan, 941 F.2d 1207 (4th Cir. 1991) (unpublished table decision). To remand under sentence four, the reviewing court must find either that the Commissioner's decision is not supported by substantial evidence or that the Commissioner incorrectly applied the law relevant to the disability claim. See, e.g., Jackson v. Chater, 99 F.3d 1086, 1090-91 (11th Cir. 1996) (holding remand was appropriate where the ALJ failed to develop a full and fair record of the claimant's residual functional capacity); Brehem v. Harris, 621 F.2d 688, 690 (5th Cir. 1980) (holding remand was appropriate where record was insufficient to affirm but was also insufficient for court to find the claimant disabled). Where the court cannot discern the basis for the Commissioner's decision, a remand under sentence four is usually the proper course to allow the Commissioner to explain the basis for the decision or for additional investigation. See Radford v. Comm'r, 734 F.3d 288, 295 (4th Cir. 2013) (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985); see also Smith v. Heckler, 782 F.2d 1176, 1181-82 (4th Cir. 1986) (remanding case where decision of ALJ contained "a gap in its reasoning" because ALJ did not say he was discounting testimony or why); Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (remanding case where neither the ALJ nor the Appeals Council indicated the weight given to relevant evidence). On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. See Smith, 782 F.2d at 1182 ("The [Commissioner] and the claimant may produce further evidence on remand."). After a remand under sentence four, the court enters a final and immediately appealable judgment and then loses jurisdiction. Sargent, 941 F.2d 1207 (citing Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991)).
In contrast, sentence six provides:
The court may . . . at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding . . . .42 U.S.C. § 405(g). A reviewing court may remand a case to the Commissioner on the basis of new evidence only if four prerequisites are met: (1) the evidence is relevant to the determination of disability at the time the application was first filed; (2) the evidence is material to the extent that the Commissioner's decision might reasonably have been different had the new evidence been before him; (3) there is good cause for the claimant's failure to submit the evidence when the claim was before the Commissioner; and (4) the claimant made at least a general showing of the nature of the new evidence to the reviewing court. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985) (citing 42 U.S.C. § 405(g); Mitchell v. Schweiker, 699 F.2d 185, 188 (4th Cir. 1983); Sims v. Harris, 631 F.2d 26, 28 (4th Cir. 1980); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)), superseded by amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec'y, Dep't of Health & Human Servs., 925 F.2d 769, 774 (4th Cir. 1991). With remand under sentence six, the parties must return to the court after remand to file modified findings of fact. Melkonyan, 501 U.S. at 98. The reviewing court retains jurisdiction pending remand and does not enter a final judgment until after the completion of remand proceedings. See Allen v. Chater, 67 F.3d 293 (4th Cir. 1995) (unpublished table decision) (holding that an order remanding a claim for Social Security benefits pursuant to sentence six of 42 U.S.C. § 405(g) is not a final order).
Though the court in Wilkins indicated in a parenthetical that the four-part test set forth in Borders had been superseded by an amendment to 42 U.S.C. § 405(g), courts in the Fourth Circuit have continued to cite the requirements outlined in Borders when evaluating a claim for remand based on new evidence. See, e.g., Brooks v. Astrue, No. 6:10-cv-152, 2010 WL 5478648, at *8 (D.S.C. Nov. 23, 2010); Ashton v. Astrue, No. TMD 09-1107, 2010 WL 3199345, at *3 (D. Md. Aug. 12, 2010); Washington v. Comm'r of Soc. Sec., No. 2:08-cv-93, 2009 WL 86737, at *5 (E.D. Va. Jan. 13, 2009); Brock v. Sec'y of Health & Human Servs., 807 F. Supp. 1248, 1250 n.3 (S.D.W. Va. 1992). Further, the Supreme Court of the United States has not suggested Borders' construction of § 405(g) is incorrect. See Sullivan v. Finkelstein, 496 U.S. 617, 626 n.6 (1990). Accordingly, the Court will apply the more stringent Borders inquiry.
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a disability. 42 U.S.C. § 423(a). "Disability" is defined as:
the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 consecutive months.Id. § 423(d)(1)(A).
I. The Five Step Evaluation
To facilitate uniform and efficient processing of disability claims, federal regulations have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (noting a "need for efficiency" in considering disability claims). The ALJ must consider whether (1) the claimant is engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the impairment meets or equals an impairment included in the Administration's Official Listings of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents the claimant from performing past relevant work; and (5) the impairment prevents the claimant from having substantial gainful employment. 20 C.F.R. § 404.1520. Through the fourth step, the burden of production and proof is on the claimant. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). The claimant must prove disability on or before the last day of her insured status to receive disability benefits. Everett v. Sec'y of Health, Educ. & Welfare, 412 F.2d 842, 843 (4th Cir. 1969). If the inquiry reaches step five, the burden shifts to the Commissioner to produce evidence that other jobs exist in the national economy that the claimant can perform, considering the claimant's age, education, and work experience. Grant, 699 F.2d at 191. If at any step of the evaluation the ALJ can find an individual is disabled or not disabled, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
A. Substantial Gainful Activity
"Substantial gainful activity" must be both substantial—involves doing significant physical or mental activities, 20 C.F.R. § 404.1572(a)—and gainful—done for pay or profit, whether or not a profit is realized, id. § 404.1572(b). If an individual has earnings from employment or self-employment above a specific level set out in the regulations, he is generally presumed to be able to engage in substantial gainful activity. Id. §§ 404.1574-.1575.
B. Severe Impairment
An impairment is "severe" if it significantly limits an individual's ability to perform basic work activities. See id. § 404.1521. When determining whether a claimant's physical and mental impairments are sufficiently severe, the ALJ must consider the combined effect of all of the claimant's impairments. 42 U.S.C. § 423(d)(2)(B). The ALJ must evaluate a disability claimant as a whole person and not in the abstract, having several hypothetical and isolated illnesses. Walker v. Bowen, 889 F.2d 47, 49-50 (4th Cir. 1989) (stating that, when evaluating the effect of a number of impairments on a disability claimant, "the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them"). Accordingly, the ALJ must make specific and well-articulated findings as to the effect of a combination of impairments when determining whether an individual is disabled. Id. at 50 ("As a corollary to this rule, the ALJ must adequately explain his or her evaluation of the combined effects of the impairments."). If the ALJ finds a combination of impairments to be severe, "the combined impact of the impairments shall be considered throughout the disability determination process." 42 U.S.C. § 423(d)(2)(B).
C. Meets or Equals an Impairment Listed in the Listings of Impairments
If a claimant's impairment or combination of impairments meets or medically equals the criteria of a listing found at 20 C.F.R. Pt. 404, Subpt. P, App.1 and meets the duration requirement found at 20 C.F.R. § 404.1509, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience. 20 C.F.R. § 404.1520(d).
D. Past Relevant Work
The assessment of a claimant's ability to perform past relevant work "reflect[s] the statute's focus on the functional capacity retained by the claimant." Pass v. Chater, 65 F.3d 1200, 1204 (4th Cir. 1995). At this step of the evaluation, the ALJ compares the claimant's residual functional capacity with the physical and mental demands of the kind of work he has done in the past to determine whether the claimant has the residual functional capacity to do his past work. 20 C.F.R. § 404.1560(b).
Residual functional capacity is "the most [a claimant] can still do despite [his] limitations." 20 C.F.R. § 404.1545(a).
E. Other Work
As previously stated, once the ALJ finds that a claimant cannot return to her prior work, the burden of proof shifts to the Commissioner to establish that the claimant could perform other work that exists in the national economy. See Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992); 20 C.F.R. § 404.1520(f)-(g). To meet this burden, the Commissioner may sometimes rely exclusively on the Medical-Vocational Guidelines (the "grids"). Exclusive reliance on the "grids" is appropriate where the claimant suffers primarily from an exertional impairment, without significant nonexertional factors. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e); see also Gory v. Schweiker, 712 F.2d 929, 930-31 (4th Cir. 1983) (stating that exclusive reliance on the grids is appropriate in cases involving exertional limitations). When a claimant suffers from both exertional and nonexertional limitations, the grids may serve only as guidelines. Gory, 712 F.2d at 931. In such a case, the Commissioner must use a vocational expert to establish the claimant's ability to perform other work. 20 C.F.R. § 404.1569a; see Walker, 889 F.2d at 49-50 ("Because we have found that the grids cannot be relied upon to show conclusively that claimant is not disabled, when the case is remanded it will be incumbent upon the [Commissioner] to prove by expert vocational testimony that despite the combination of exertional and nonexertional impairments, the claimant retains the ability to perform specific jobs which exist in the national economy."). The purpose of using a vocational expert is "to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform." Walker, 889 F.2d at 50. For the vocational expert's testimony to be relevant, "it must be based upon a consideration of all other evidence in the record, . . . and it must be in response to proper hypothetical questions which fairly set out all of claimant's impairments." Id. (citations omitted).
An exertional limitation is one that affects the claimant's ability to meet the strength requirements of jobs. 20 C.F.R. § 404.1569a(a). A nonexertional limitation is one that affects the ability to meet the demands of the job other than the strength demands. Id. Examples of nonexertional limitations include but are not limited to difficulty functioning because of being nervous, anxious, or depressed; difficulty maintaining attention or concentrating; difficulty understanding or remembering detailed instructions; difficulty seeing or hearing. § 404.1569a(c)(1).
II. Developing the Record
The ALJ has a duty to fully and fairly develop the record. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). The ALJ is required to inquire fully into each relevant issue. Snyder, 307 F.2d at 520. The performance of this duty is particularly important when a claimant appears without counsel. Marsh v. Harris, 632 F.2d 296, 299 (4th Cir. 1980). In such circumstances, "the ALJ should scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts, . . . being especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited." Id. (internal quotations and citations omitted).
III. Treating Physicians
If a treating physician's opinion on the nature and severity of a claimant's impairments is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" in the record, the ALJ must give it controlling weight. 20 C.F.R. § 404.1527(c)(2); see Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). The ALJ may discount a treating physician's opinion if it is unsupported or inconsistent with other evidence, i.e., when the treating physician's opinion does not warrant controlling weight, Craig, 76 F.3d at 590, but the ALJ must nevertheless assign a weight to the medical opinion based on the 1) length of the treatment relationship and the frequency of examination; 2) nature and extent of the treatment relationship; 3) supportability of the opinion; 4) consistency of the opinion with the record a whole; 5) specialization of the physician; and 6) other factors which tend to support or contradict the opinion, 20 C.F.R. § 404.1527(c). Similarly, where a treating physician has merely made conclusory statements, the ALJ may afford the opinion such weight as is supported by clinical or laboratory findings and other consistent evidence of a claimant's impairments. See Craig, 76 F.3d at 590 (holding there was sufficient evidence for the ALJ to reject the treating physician's conclusory opinion where the record contained contradictory evidence).
In any instance, a treating physician's opinion is generally entitled to more weight than a consulting physician's opinion. See Mitchell v. Schweiker, 699 F.2d 185, 187 (4th Cir. 1983) (stating that treating physician's opinion must be accorded great weight because "it reflects an expert judgment based on a continuing observation of the patient's condition for a prolonged period of time"); 20 C.F.R. § 404.1527(c)(2). An ALJ determination coming down on the side of a non-examining, non-treating physician's opinion can stand only if the medical testimony of examining and treating physicians goes both ways. Smith v. Schweiker, 795 F.2d 343, 346 (4th Cir. 1986). Further, the ALJ is required to review all of the medical findings and other evidence that support a medical source's statement that a claimant is disabled. 20 C.F.R. § 404.1527(d). However, the ALJ is responsible for making the ultimate determination about whether a claimant meets the statutory definition of disability. Id.
IV. Medical Tests and Examinations
The ALJ is required to order additional medical tests and exams only when a claimant's medical sources do not give sufficient medical evidence about an impairment to determine whether the claimant is disabled. 20 C.F.R. § 404.1517; see also Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986). The regulations are clear: a consultative examination is not required when there is sufficient medical evidence to make a determination on a claimant's disability. 20 C.F.R. § 404.1517. Under the regulations, however, the ALJ may determine that a consultative examination or other medical tests are necessary. Id.
V. Pain
Congress has determined that a claimant will not be considered disabled unless he furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing the existence of a medical impairment that could reasonably be expected to produce the pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). In evaluating claims of disabling pain, the ALJ must proceed in a two-part analysis. Morgan v. Barnhart, 142 F. App'x 716, 723 (4th Cir. 2005) (unpublished opinion). First, "the ALJ must determine whether the claimant has produced medical evidence of a 'medically determinable impairment which could reasonably be expected to produce . . . the actual pain, in the amount and degree, alleged by the claimant.'" Id. (quoting Craig, 76 F.3d at 594). Second, "if, and only if, the ALJ finds that the claimant has produced such evidence, the ALJ must then determine, as a matter of fact, whether the claimant's underlying impairment actually causes her alleged pain." Id. (emphasis in original) (citing Craig, 76 F.3d at 595).
Under the "pain rule" applicable within the United States Court of Appeals for the Fourth Circuit, it is well established that "subjective complaints of pain and physical discomfort could give rise to a finding of total disability, even when those complaints [a]re not supported fully by objective observable signs." Coffman v. Bowen, 829 F.2d 514, 518 (4th Cir. 1987) (citing Hicks v. Heckler, 756 F.2d 1022, 1023 (4th Cir. 1985)). The ALJ must consider all of a claimant's statements about his symptoms, including pain, and determine the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence. 20 C.F.R. § 404.1528. Indeed, the Fourth Circuit has rejected a rule which would require the claimant to demonstrate objective evidence of the pain itself, Jenkins v. Sullivan, 906 F.2d 107, 108 (4th Cir. 1990), and ordered the Commissioner to promulgate and distribute to all administrative law judges within the circuit a policy stating Fourth Circuit law on the subject of pain as a disabling condition, Hyatt v. Sullivan, 899 F.2d 329, 336-37 (4th Cir. 1990). The Commissioner thereafter issued the following "Policy Interpretation Ruling":
This Ruling supersedes, only in states within the Fourth Circuit (North Carolina, South Carolina, Maryland, Virginia and West Virginia), Social Security Ruling (SSR) 88-13, Titles II and XVI: Evaluation of Pain and Other Symptoms:
...
FOURTH CIRCUIT STANDARD: Once an underlying physical or [m]ental impairment that could reasonably be expected to cause pain is shown by medically acceptable
objective evidence, such as clinical or laboratory diagnostic techniques, the adjudicator must evaluate the disabling effects of a disability claimant's pain, even though its intensity or severity is shown only by subjective evidence. If an underlying impairment capable of causing pain is shown, subjective evidence of the pain, its intensity or degree can, by itself, support a finding of disability. Objective medical evidence of pain, its intensity or degree (i.e., manifestations of the functional effects of pain such as deteriorating nerve or muscle tissue, muscle spasm, or sensory or motor disruption), if available, should be obtained and considered. Because pain is not readily susceptible of objective proof, however, the absence of objective medical evidence of the intensity, severity, degree or functional effect of pain is not determinative.SSR 90-1p, 55 Fed. Reg. 31,898-02, at 31,899 (Aug. 6, 1990). SSR 90-1p has since been superseded by SSR 96-7p, which is consistent with SSR 90-1p. See SSR 96-7p, 61 Fed. Reg. 34,483-01 (July 2, 1996). SSR 96-7p provides, "If an individual's statements about pain or other symptoms are not substantiated by the objective medical evidence, the adjudicator must consider all of the evidence in the case record, including any statements by the individual and other persons concerning the individual's symptoms." Id. at 34,485; see also 20 C.F.R. § 404.1529(c)(1)-(c)(2) (outlining evaluation of pain).
VI. Credibility
The ALJ must make a credibility determination based upon all the evidence in the record. Where an ALJ decides not to credit a claimant's testimony about pain, the ALJ must articulate specific and adequate reasons for doing so, or the record must be obvious as to the credibility finding. Hammond v. Heckler, 765 F.2d 424, 426 (4th Cir. 1985). Although credibility determinations are generally left to the ALJ's discretion, such determinations should not be sustained if they are based on improper criteria. Breeden, 493 F.2d at 1010 ("We recognize that the administrative law judge has the unique advantage of having heard the testimony firsthand, and ordinarily we may not disturb credibility findings that are based on a witness's demeanor. But administrative findings based on oral testimony are not sacrosanct, and if it appears that credibility determinations are based on improper or irrational criteria they cannot be sustained.").
APPLICATION AND ANALYSIS
Weight Assigned to Medical Opinions
Plaintiff first argues the ALJ failed to properly explain the weight assigned to the opinion evidence. [Doc. 18 at 14-22.] More specifically, Plaintiff challenges the ALJ's decision to give great weight to the opinion of Brittany L. Hunt, MPT, a physical therapist; less weight to the opinion of Green B. Neal, M.D., Plaintiff's treating physician; and great weight to the non-treating, non-examining state agency physicians' opinions. [Id.]
The undersigned notes the Commissioner did not specifically respond to this portion of Plaintiff's argument. [See Doc. 21.]
The Fourth Circuit Court of Appeals recently reiterated that for claims filed before March 27, 2017, the standards for evaluating medical opinion evidence are set forth in 20 C.F.R. § 404.1527, which requires the ALJ to evaluate every medical source opinion presented and give controlling weight to a treating source's medical opinion if it is well-supported and not inconsistent with the other substantial evidence in the record. Brown v. Commissioner, 873 F.3d 251, 256 (4th Cir. 2017) (citing 20 C.F.R. § 404.1527(c)(2)). Further, the regulation requires the ALJ to provide good reasons for the weight assigned to a treating source's medical opinion. Id. The Fourth Circuit explained that the first two factors used to assign weight to medical opinions—(1) the length of the treatment relationship and frequency of examination and (2) the nature and extent of the treatment relationship—are specific to treating sources. Id. The other three factors—(3) the supportability of the medical opinion, (4) the consistency of the medical opinion with the record as a whole, and (5) the specialization, favoring medical opinions of specialists about issues related to their area of specialty—are used to determine the weight to assign to any medical opinion, whether from a treating or nontreating source. Id. Finally, "any other factors 'which tend to support or contradict the medical opinion' are to be considered." Id. (quoting 20 C.F.R. § 404.1527(c)(6)).
The Social Security regulations and rulings applicable to Plaintiff's claim distinguish between opinions from "acceptable medical sources" and "other sources." 20 C.F.R. § 404.1513(d). Social Security Ruling 06-03p further discusses "other sources" as including both "medical sources who are not acceptable medical sources" and "non-medical sources." Only acceptable medical sources can establish the existence of a medically determinable impairment, give medical opinions, and be considered treating sources whose opinions may be entitled to controlling weight. SSR 06-03p. Evidence from sources other than acceptable medical sources may be used to show the severity of a claimant's impairments and how it affects the claimant's ability to work. 20 C.F.R. § 404.1513(d). "The evaluation of an opinion from a medical source who is not an 'acceptable medical source' depends on the particular facts in each case." SSR 06-03p. "Each case must be adjudicated on its own merits based on a consideration of the probative value of the opinions and a weighing of all the evidence in that particular case." Id. When evaluating such a source, "the adjudicator generally should explain the weight given to [such] opinion[s] . . . or otherwise ensure that the discussion of the evidence in the determination or decision allows a claimant or subsequent reviewer to follow the adjudicator's reasoning, when such opinions may have an effect on the outcome of the case." Id.
Former § 404.1513 was in effect until March 27, 2017, and therefore applies to Plaintiff's claim filed in 2012.
SSR 06-3p has been rescinded in keeping with amendments to the regulations that apply to claims filed on or after March 27, 2017, and the rescission is effective for claims filed on or after that date. 82 Fed. Reg. 15263-01, 2017 WL 1105348 (Mar. 27, 2017). Because Plaintiff's claim was filed before the effective date of the rescission, SSR 06-3p applies here.
Treating Physician's Opinions
On January 31, 2013, Dr. Neal completed a questionnaire regarding Plaintiff's ability to do work-related activities. [R. 382-84.] Dr. Neal opined that Plaintiff would be able to lift and carry less than ten pounds occasionally and less than ten pounds frequently, stand and walk for less than two hours during an eight-hour day, sit for less than two hours in an eight-hour day, must change position after 20 to 30 minutes of sitting and after 10 to 15 minutes of standing, must walk around for five to ten minutes every 30 to 45 minutes, must have the opportunity to shift at will from sitting or standing/walking, and would need to lie down 4 to 5 times per day. [R. 382-83.] Additionally, Dr. Neal opined that Plaintiff could never stoop, crouch, or climb stairs or ladders and could occasionally twist. [R. 383.] Finally, Dr. Neal indicated that Plaintiff must avoid exposure to extreme cold, extreme heat, wetness, humidity, and hazards and anticipated that Plaintiff would be absent from work more than three times per month because of his impairments or treatment. [R. 384.]
Dr. Neal completed another questionnaire regarding Plaintiff's ability to do work-related activities on February 16, 2014. [R. 385-87.] Dr. Neal opined that Plaintiff would be able to lift and carry less than ten pounds occasionally and less than ten pounds frequently, stand and walk for less than two hours during an eight-hour day, sit for less than two hours in an eight-hour day, must change position after 20 to 30 minutes of sitting and after 15 to 20 minutes of standing, must walk around for 15 to 20 minutes every 15 to 20 minutes, must have the opportunity to shift at will from sitting or standing/walking, and would need to lie down throughout the day. [R. 385-86.] Additionally, Dr. Neal opined that Plaintiff could never twist, stoop, crouch, or climb stairs or ladders. [R. 386.] Finally, Dr. Neal indicated that Plaintiff must avoid all exposure to extreme cold, extreme heat, and hazards; avoid even moderate exposure to wetness; and avoid concentrated exposure to humidity; Dr. Neal anticipated that Plaintiff would be absent from work more than three times per month because of his impairments or treatment. [R. 387.]
The ALJ's Weighing of Medical Opinions
After reviewing the medical evidence of record, the ALJ explained his weighing of the medical opinions as follows:
[T]he treatment records in evidence begin in April 2011 when the claimant started seeing internist Dr. Green B. Neal in Columbia, SC, on referral of an attorney (Exhibit 1F, p. 19). Concurrently, the claimant was seeing Dr. Nancy Lembo, a specialist in rehabilitation and pain management. There are numerous statements regarding the claimant's abilities and limitations.
Initially, neither physician endorsed total disability. Dr. Neal noted only in May 2011 that the claimant had great difficulty with lifting and should not return to heavy arduous work (Exhibit 1F, p. 18). Dr. Lembo's reports are clearer in terms of objective findings and clinical signs. She found in July 2011 that the claimant's gait was nonantalgic and he moved without assistance. The claimant's motor strength was normal (5/5), noting only some mild atrophy of the right biceps. The claimant had markedly restricted range of motion of the neck with pain on rotation to the left (Exhibit 3F, p. 5). At that time, Dr. Lembo released the claimant to return to sedentary work primarily with no repetitive use of the right arm and a maximum of fifteen pounds lifting, with no lifting above shoulder height and no
work above shoulder height (Exhibit 3F, p. 6). In October 2011, Dr. Neal noted again that the claimant could not return to heavy manual labor (Exhibit 1F, p. 12).
The undersigned has given less weight to Dr. Lembo's July 2011 restrictions because subsequently, the claimant completed a course of physical therapy in November 2011. At discharge, functional/occupational tests showed maximal lifting/material handling abilities of 26 pounds bilaterally from floor to knuckle and from knuckle to shoulder, and 16 pounds shoulder to overhead (Exhibit 2F, p. 7). The tests showed the ability to carry 26 pounds bilaterally on an occasional basis and push/pull 25 pounds on an occasional basis. Testing showed the ability to do sustained bending and squatting frequently; overhead reaching frequently; kneeling, grasping, and fine motor frequently; standing and walking constantly; and sitting occasionally (Exhibit 2F, p. 8). Treadmill test results indicated that he could tolerate moderate work for an eight-hour day (Exhibit 2F, p. 9). The undersigned has given great weight to the physical therapy testing findings. The undersigned notes that Dr. Lembo stated in March 2012, "I do not feel he is 100% disabled . . . he has restrictions but can return to work" (Exhibit 3F, p. 25).
The claimant underwent a consultative medical examination with Dr. Sushil Das in September 2012. As previously noted by treating physicians, the claimant had a normal neurological exam. Muscle power remained 5/5 bilaterally in both the upper and lower extremities. The claimant was able to climb up on to and down off my examining table without any difficulty. He had normal sensation. He did very well on straight leg raising tests in both the supine and sitting position. Babinski's and Romberg's were negative. He walked without any difficulty. Based on the exam, Dr. Das found no evidence of any joint abnormalities and assessed the claimant to be in "excellent health." The claimant did not have decreased range of motion in the upper or lower extremities. Dr. Das opined that the claimant has no problems doing normal physical activity (Exhibit 4F, p. 2). The undersigned has given some weight to these findings and opinion, although the evidence as a whole supports a finding that the claimant has some limitations, as noted in the residual functional capacity.
In October 2012, a month after the normal consultative medical examination, Dr. Neal changed his opinion, noting that the
claimant is "totally disabled and never able to work again" (Exhibit 7F, p. 9). He subsequently submitted medical source statements in January 2013 and February 2014 indicating that the claimant is limited to less than sedentary work allowing for position changes at will, numerous breaks to lie down, a variety of postural and environmental limitations, and more than three absences per month (Exhibit 7F, pp. 23-25; 8F, pp. 1-3).[R. 26-27.]
Although Dr. Neal is a treating source, the undersigned has given less weight to these opinions because the evidence as a whole does not support them and, in fact, findings from other sources are inconsistent with Dr. Neal's findings. For example, Dr. Neal noted in October 2012 that the claimant had weakness (3/5) of the right lower extremity and 2/5 on the left (Exhibit 7F, p. 3). This was not present a month earlier at the consultative medical examination when he had normal strength in all extremities (Exhibit 4F, p. 2). Additionally, at an exam at York County Free Clinic in December 2012, the claimant was found to have normal strength and tone (Exhibit 10F, p. 5).
Further, the claimant returned to Dr. Lembo in October 2013, having last seen her in June 2012. Dr. Lembo's findings are not consistent with Dr. Neal's findings. Dr. Lembo noted that the claimant endorsed tenderness over the paraspinal muscles bilaterally in the cervical and lumbar spine and painful movement in flexion and extension in the lumbar spine. The claimant had restricted flexion, extension and rotation bilaterally in the cervical spine. The claimant had a forward stooped posture, but his gait was not antalgic or widened and he had normal balance. Examination of the spine did not reveal any evidence of a thoracolumbar shift or scapular winging. He retained normal motor strength (Exhibit 11F, p. 1).
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In determining the residual functional capacity, the undersigned has given great weight to the State agency medical consultant's finding at reconsideration, the most recent assessment (Exhibit 4A). The residual functional capacity is consistent with this assessment except that the undersigned finds it sufficient to advise the claimant to avoid concentrated exposure to hazards, rather than a total preclusion.
Discussion
Upon review, it is unclear to the Court that the ALJ properly considered the medical opinions in accordance with 20 C.F.R. § 404.1527(c). The ALJ failed to create a bridge between the evidence and his conclusions. Jackson v. Astrue, No. 8:08-cv-2855, 2010 WL 500449, at *10 (D.S.C. Feb. 5, 2010) ("But, an ALJ need only 'minimally articulate' his reasoning so as to 'make a bridge' between the evidence and his conclusions.") (quoting Fischer v. Barnhart, 129 F. App'x 297, 303 (7th Cir. 2005)). For example, the decision provides no explanation as to which limitations recognized by Dr. Neal are alleged to be contradicted by the evidence of record. Further, the ALJ concluded that findings by Dr. Lembo, presumably that Plaintiff had normal motor strength, contradict Dr. Neal's recognized limitations, but failed to explain why, particularly in light of Dr. Lembo's findings that although Plaintiff may have had normal motor strength, the source of his pain was unclear and that surgical intervention was appropriate because conservative measures in Plaintiff's treatment had been exhausted. [R. 327.] Dr. Lembo made this recommendation after Plaintiff saw Ms. Hunt, finding that even after physical therapy, Plaintiff continued to experience aching, burning, and throbbing pain in his neck and lower back with increased activity. [R. 326.] Additonally, the ALJ gave great weight to findings by Ms. Hunt, an "other source" opinion, and further failed to address the fact that Ms. Hunt also noted Plaintiff experienced increased pain with activity, taking him double the time to complete certain activities [R. 257] or her recommendation that Plaintiff would benefit from a functional capacity exam to objectively quantify limitations in function with respect to return to work. [R. 256.] Moreover, although "[i]n appropriate circumstances, opinions from State agency medical and psychological consultants . . . may be entitled to greater weight than the opinions of treating or examining sources," SSR 96-6P, 1996 WL 374180, at *3 (S.S.A. July 2, 1996), here, the ALJ failed to explain how the opinion of the state agency consultant, dated September 28, 2012, is entitled to greater weight than Plaintiff's treating physician's opinion. Further, this opinion pre-dated Dr. Neal's questionnaires, and the ALJ failed to provide any explanation at all for his decision to assign great weight to the state agency consultant's opinion. Accordingly, given the lack of explanation with respect to the weight assigned to medical opinions, the Court cannot find the ALJ's decision is supported by substantial evidence. See Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013) ("A necessary predicate to engaging in substantial evidence review is a record of the basis for the ALJ's ruling.").
Remaining Allegations of Error
Because the Court finds the ALJ's error at Step 5 is a sufficient basis to remand this matter for further consideration, the Court declines to address Plaintiff's remaining allegations of error. On remand, however, the Commissioner should consider Plaintiff's remaining allegations of error.
The Court notes the ALJ appears to have based his decision solely on the objective medical evidence in the record with no substantive explanation of his consideration of Plaintiff's subjective pain complaints. Although the ALJ retains the authority to determine the RFC, the ALJ is required to give specific reasons, supported by evidence in the record, to clarify the weight afforded to a plaintiff's subjective complaints of pain. Smith v. Colvin, No. 1:14-cv-04400-RBH, 2016 WL 1089302, at * 9 (D.S.C. March 21, 2016). Plaintiff has a well-documented history of multiple severe physical impairments that have produced a long-term diagnosis of chronic pain and daily treatment with multiple doses of pain medications. Medical records also demonstrate that Plaintiff's treating physicians consistently documented Plaintiff's severe and chronic pain condition. However, the ALJ failed to explain how Plaintiff's pain factored into his RFC determination. This explanation is particularly important in this case in light of the VE's testimony that, if Plaintiff were off task for 20% of the day due to his impairments, competitive work would be eliminated. [R. 55-56.] --------
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g), and the case is REMANDED to the Commissioner for further administrative action consistent with this Report and Recommendation.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge January 22, 2018
Greenville, South Carolina