Opinion
C/A No.: 1:18-943-TMC-SVH
04-29-2019
Lora Ann Busbee, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
This appeal from a denial of social security benefits is before the court for a Report and Recommendation ("Report") pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether she applied the proper legal standards. For the reasons that follow, the undersigned recommends the Commissioner's decision be reversed and remanded for further proceedings as set forth herein. I. Relevant Background
A. Procedural History
On or about April 24, 2014, Plaintiff filed applications for DIB and SSI in which she alleged her disability began on October 1, 2013. Tr. at 88-91. Her applications were denied initially and upon reconsideration. Tr. at 30, 44-49, 52-55, 628-39. On September 30, 2016, Plaintiff had a hearing before Administrative Law Judge ("ALJ") Ethan A. Chase. Tr. at 643-63. (Hr'g Tr.). The ALJ issued an unfavorable decision on December 29, 2016, finding Plaintiff was not disabled within the meaning of the Act. Tr. at 19-29. Subsequently, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. Tr. at 10-12. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on April 6, 2018. [ECF No. 1].
Plaintiff's DIB application references May 13, 2014, as the filing date, but the record also reflects April 24, 2014. Compare Tr. at 88, with Tr. at 19. However, Plaintiff's SSI application was not provided. ECF No. 9 at 6 (noting unavailability for inclusion at that time).
B. Plaintiff's Background and Medical History
1. Background
Plaintiff was 47 years old at the time of the hearing. Tr. at 647. She completed the twelfth grade. Id. Her past relevant work ("PRW") was as a school bus driver. Id. She alleges she has been unable to work since October 1, 2013. Tr. at 88-91.
Plaintiff reached an agreement and final release with her prior employer due to her work-related accident on May 1, 2015, but this agreement is not discussed in detail. Tr. at 92. Medical records that predated the alleged onset date or were irrelevant are not discussed. See, e.g., Tr. at 180-269 (providing various records from 2001 to 2013); see also Tr. at 178-79 (providing results of a mammogram in 2014).
On October 28, 2013, Plaintiff presented to an emergency room with complaints of neck and back pain after a motor vehicle accident in which she was driving a bus and a car crossed into her lane and hit her vehicle before stopping in a ditch. Tr. at 313-24. Plaintiff reported the accident occurred three hours prior and her pain was 10/10. Id. Plaintiff's physical examination reflected relatively normal findings with a normal gait, but her palpable cord was abnormal and she had tenderness and spams in her cervical and lumbar spines. Id. A cervical spine x-ray showed no evidence of acute osseous injury. Id. The attending physician diagnosed neck and lumbar injuries and prescribed Naprosyn, Cyclobenzaprine, and Flexeril. Id.
On October 29, 2013, Plaintiff presented to Peter Hyman, M.D. ("Dr. Hyman"), at the Occupational Medicine Clinic of McLeod Occupational Health ("McLeod Clinic"). Tr. at 278-88. Plaintiff experienced pain in her upper shoulders, neck, and lower back and reported any movement caused increased pain. Id. Plaintiff described the pain as constant, without improvement, and unbearable. Id. Dr. Hyman's physical examination reflected pain to palpation ("PTP") in Plaintiff's neck, cervical and lumbar spines, and right knee. Id. Dr. Hyman diagnosed myofascial syndrome and a right knee strain. Id. Dr. Hyman noted Plaintiff had reported to the emergency room the prior day, had not filled her prescriptions yet, and the pain appeared to be "typical" after a motor vehicle accident. Id. Dr. Hyman instructed Plaintiff to fill her prescriptions, recommended her work status be restricted duty, and instructed her not to lift more than ten pounds or operate heavy machinery while she took muscle relaxers. Id. He further opined Plaintiff could return to light duties. Tr. at 284.
On November 5, 2013, Plaintiff presented to Dr. Hyman at McLeod Clinic for follow up. Tr. at 270-77. Plaintiff reported the pain had been constant for eight days and "unbearable," she was unable to sleep through the night, and her medications, Naprosyn and Cyclobenzaprine, did not provide relief. Id. Plaintiff also reported sitting, bending, or lying down caused pain. Id. Dr. Hyman's examination revealed PTP in Plaintiff's cervical and lumbar spines and right knee. Id. Dr. Hyman diagnosed myofascial syndrome and right knee strain, referred her to physical therapy, and prescribed Naprosyn and Cyclobenzaprine. Id. Dr. Hyman recommended the same work status and restrictions. Id.
On November 15, 2013, Plaintiff presented to Lowe's Physical Therapy ("Lowe's"). Tr. at 348-38. She reported walking, standing, sitting, lying, bending, and lifting increased pain in her neck, back, knee, and shoulders that ranged between 5 to 10/10. Tr. at 335-37. Plaintiff's physical examination reflected rounded shoulders and moderate tenderness. Tr. at 336-37. The physical therapist advised Plaintiff not to lift more than ten pounds or drive heavy machinery and recommended treatment. Tr. at 331-34, 336. Plaintiff attended eleven therapy sessions throughout the next month. See Tr. at 331-34 (reflecting visits on November 18, 21, 22, 25, 27, 29, and December 2, 5, 6, 9, and 12, 2013).
On December 2, 2013, Plaintiff presented to an emergency room with complaints of continued shoulder and back pain. Tr. at 307-12. Plaintiff reported having attended physical therapy three times per week. Id. Plaintiff's physical examination reflected bilateral tenderness to palpation ("TTP") over the trapezium. Id. The attending physician diagnosed neck, lumbar, and shoulder injury with sprain or strain and prescribed Toradol. Id.
On December 5, 2013, Plaintiff presented to Paul V. DeMarco, M.D. ("Dr. DeMarco"). Tr. at 380-82. Plaintiff reported hip pain and having received steroid injections the prior week. Id. Dr. DeMarco noted Plaintiff had been treated for three weeks by a workers' compensation doctor with muscle relaxants and pain medications, she had participated in physical therapy, and she had presented to the emergency room three days prior due to pain. Id. Plaintiff reported her low back pain was worse than her neck, shoulder, wrist, and knee pain and she had mild headaches. Id. Plaintiff's physical and psychiatric exams reflected a normal neck exam, full range of motion ("ROM") in her extremities with minimal pain, and appropriate mood and affect, but mild lumbar tenderness. Id. Dr. DeMarco prescribed Prednisone and Tramadol. Id.
On December 13, 2013, Plaintiff presented to Lowe's for continued back, neck, and shoulder pain. Tr. at 331. The physical therapist noted Plaintiff's pain was consistently rated 8/10 and discharged her due to a plateaued recovery. Tr. at 419.
On December 14, 2013, Plaintiff presented to an emergency room at Carolinas Hospital System with complaints of neck and back pain of 10/10 and requested an x-ray of her entire back. Tr. at 339-47. Plaintiff's physical examination was relatively normal, but her neck was tender with spasms in her lateral muscles and her back was tender in all paraspinals with moderate spasms in her upper muscles. Id. The attending physician diagnosed cervical, thoracic, and lumbar strain, prescribed Oxycodone and Ibuprofen, and recommended hot packs. Id.
On January 6, 2014, Plaintiff presented to Dr. DeMarco for follow up of her lumbar strain and reported pain. Tr. at 377-80. Plaintiff's physical and psychiatric exams reflected a normal neck exam and appropriate mood and affect. Id. Dr. DeMarco noted Plaintiff had an appointment with an orthopedist and prescribed Cyclobenzaprine and Ibuprofen. Id.
On January 9, 2014, Plaintiff presented to Chadley M. Runyan, M.D. ("Dr. Runyan"), at Pee Dee Orthopaedic Associates. Tr. at 407-08, 583-84. Christopher Dean Huiet, P.Ac. ("PA Huiet") dictated for Dr. Runyan. Tr. at 406. Dr. Runyan noted Plaintiff had immediate onset of neck and low back pain after an accident, was evaluated at the McLeod emergency room, and was prescribed anti-inflammatories and muscle relaxants. Id. Plaintiff also had participated in physical therapy, was evaluated by a workers' compensation physician, and reported to the emergency room twice due to pain. Id. Plaintiff reported improved neck symptoms, but worsened back pain with activity. Id. Plaintiff denied radicular-type pain or paresthesias involving her upper extremities. Id. Plaintiff's examination reflected tenderness in the sacroiliac ("SI") joints, paraspinals, and cervical and lumbar spines, with maximal tenderness at the midline of the lumbar spine, decreased right and left lateral rotation in the cervical spine, and decreased ROM in the lumbar spine, but normal strength, gait, senses, and reflexes and good ROM in her hip. Id. Dr. Runyan referred Plaintiff to CPM Physical Therapy ("CPM"), recommended stretches and heating pads, and order a magnetic resonance image ("MRI"). Id. Dr. Runyan prescribed physical therapy three times per week for four weeks. Tr. at 356, 364.
Also on January 9, 2014, PA Huiet opined Plaintiff could return to sedentary work and should adhere to the restriction until medically released. Tr. at 582.
On January 13, 2014, Plaintiff presented to CPM for an initial evaluation of her neck and low back pain. Tr. at 360-65, 417-18. Plaintiff reported increased headaches since the accident and radiating pain into both upper extremities to the elbows. Id. Plaintiff had participated in physical therapy from October until mid-December and reported her cervical spine pain ranged from 6/10 to 8/10 and her lumbar spine pain ranged from 9/10 to 10/10, with increased pain when bending, reaching, sitting, lifting, or standing. Id. The physical therapist observed Plaintiff's gait was antalgic, slow, and guarded. Id. Plaintiff's lumbar spine strength ranged from 3 to 4/5 and her paraspinals were TTP, but her straight leg raise ("SLR") test was negative. Id. The physical therapist assessed decreased functional status, subjective and objective deficits, and consistent symptoms with a cervical spine strain and upper extremity weakness "in conjunction with long term history of low back pain effecting strength, ROM, gait, posture, function, and pain." Id. Suzy Pennington, P.T. ("PT Pennington") recommended physical therapy two to three times per week for four weeks. Tr. at 418.
On January 15, 2014, Plaintiff presented to CPM and reported she felt "miserable" from having an MRI the prior day because she had to lie still. Tr. at 358. Plaintiff had to rest three times during her approximate one-hour session. Tr. at 359. PT Pennington recommended ongoing therapy and noted Plaintiff was motivated and compliant. Id.
On January 16, 2014, Plaintiff presented to Dr. Runyan to follow up on her cervical and lumbar spines. Tr. at 405-06. Plaintiff reported improved cervical pain, but recurrent pain in the left SI joint that was activity-related and improved with rest. Id. Plaintiff's exams reflected minimal cervical paraspinal tenderness and maximal tenderness at the left SI joint, but a functional ROM in her cervical spine and appropriate mood and affect. Id. Dr. Runyan diagnosed left SI joint dysfunction and referred Plaintiff to Anthony W. Alexander, M.D. ("Dr. Alexander"). Id.
PA Huiet dictated for Dr. Runyan. Tr. at 406.
Also on January 16, 2014, PA Huiet opined Plaintiff could perform sedentary work and should adhere to the restriction until medically released. Tr. at 581.
On January 21, 2014, Plaintiff presented to Dr. Alexander with complaints of low back pain of 9/10. Tr. at 402-04, 579-80. Plaintiff reported a severe, dull, throbbing pain in her lower back that radiated to her hips and down to her knees since the accident. Id. Plaintiff reported increased pain when bending, lifting, and standing, but decreased pain with Ibuprofen and Cyclobenzaprine. Id. Plaintiff's examinations reflected an unremarkable gait and station, negative SLR, no muscle spasms, and appropriate mood and affect, but forward flexion and extension reproduced lower back pain, there was TTP of the lumbar paraspinal muscles, and she had decreased sensation to light touch and pin prick at the right L3-L4. Id. Dr. Alexander reviewed lumbar spine x-rays and an MRI that were "essentially unremarkable" and diagnosed acute lower back pain. Id. He scheduled an electrodiagnostic study ("EMG/NCS") of the lower extremities and lumbosacral spine to rule out lumbar radiculopathy, placed a hold on other physical therapy, and prescribed Vicodin. Id. Dr. Alexander opined Plaintiff would be unable to return to work for one month. Tr. at 578.
On January 22, 2014, Plaintiff presented to Dr. Alexander for the EMG/NCS. Tr. at 398-401. However, Plaintiff was unable to relax, and Dr. Alexander rescheduled to perform it under Valium sedation. Id.
On February 3, 2014, Plaintiff presented to Dr. Alexander for the EMG/NCS of her lower extremities and lumbar spine due to pain, numbness, and tingling. Tr. at 395-97. Dr. Alexander diagnosed right, mild, and acute L3-L5 radiculopathy and recommended additional physical therapy for two weeks. Id.
On February 6, 2014, Plaintiff presented for an initial evaluation at Palmetto Physical Therapy and Wellness Center ("Palmetto Therapy") with complaints of lower back pain into her knees and legs and neck pain into her shoulders. Tr. at 352-55, 415-16. Plaintiff reported physical therapy previously provided no relief and pain medication provided temporary relief. Id. She also reported her constant pain increased with prolonged positions and activity and her husband did all of the household chores and shopping due to her functional limitations, as she was unable to walk more than ten minutes or sit for more than twenty minutes. Id. The physical therapist observed Plaintiff had forward head and shoulder positions, used her upper extremities to transition from sitting or standing, had a decreased stance, and an antalgic gait on the left. Id. Plaintiff had positive SLR, Quadrant, and Kemp tests, limited active ROM in her lumbar spine, and TTP in her lumbar and thoracic spines' paraspinals, L5, S1, posterior superior iliac spine ("PSIS"), sacrum, and sacral boarder. Id. The physical therapist noted Plaintiff presented "with signs and symptoms consistent with [lumbar spine] radiculopathy effecting ROM, strength, functional capability, posture, gait, and pain levels." Tr. at 354. The physical therapist recommended therapy three times a week for twelve weeks. Id.
On February 10, 2014, Plaintiff presented to Palmetto Therapy. Tr. at 349-50. The physical therapist assessed lumbago, sciatica, and abnormal gait and recommended continued therapy. Id.
On or about February 18, 2014, Dr. Alexander ordered additional therapy three times a week for six weeks at Palmetto Therapy for Plaintiff's lumbar spine. Tr. at 348, 416.
On February 21, 2014, Dr. Alexander opined Plaintiff would be unable to return to work for one month. Tr. at 577.
On February 24, 2014, Plaintiff presented to Dr. Alexander with complaints of lower back pain. Tr. at 393-94. Plaintiff denied any change in her symptoms after physical therapy and reported back and right leg pain of 9/10. Id. Dr. Alexander noted that Plaintiff needed a letter of protection from her attorney to restart physical therapy. Id. Dr. Alexander diagnosed right lumbar radiculopathy L4-L5, ordered physical therapy with Dr. Mary Harpell, and prescribed Vicodin. Id.
On February 25, 2014, Ms. Christy Carter at CPM noted Plaintiff last attended therapy at the facility on January 15, 2014, her treatment was placed on hold by her doctor on January 21, 2014, and she recommended Plaintiff be discharged. Tr. at 357.
Also on February 25, 2014, Plaintiff presented to Dr. DeMarco for lumbar sprain or strain, depression, and anxiety. Tr. at 374-76. Plaintiff reported weight gain and that she had stopped attending church until the prior Sunday. Id. Plaintiff's examinations reflected a normal neck and appropriate mood and affect. Id. Dr. DeMarco prescribed Paxil. Id.
On March 17, 2014, Plaintiff presented to Dr. Alexander with complaints of low back pain. Tr. at 391-92. Plaintiff reported she was not able to participate in physical therapy because her attorney's office had not issued a letter of protection. Id. Plaintiff also reported she had used Diclofenac cream, but it caused a rash on her back. Id. Dr. Alexander diagnosed acute lower back pain, ordered physical therapy, instructed her not to use the cream, and prescribed Vicodin. Id., Tr. at 433.
On March 21, 2014, Dr. Alexander opined Plaintiff would be unable to return to work for one month. Tr. at 576.
On March 25, 2014, Plaintiff presented to Dr. DeMarco for bilateral foot pain and lumbar sprain or strain. Tr. at 370-73. Plaintiff's examination reflected a normal neck and appropriate mood and affect. Id. Dr. DeMarco instructed Plaintiff to follow up with Dr. Alexander, who was treating her radiculopathy with Hydrocodone and physical therapy. Id.
On March 25, 2014, Plaintiff presented to Three Rivers Therapy Associates ("Three Rivers") for an initial evaluation. Tr. at 430-31. Plaintiff reported pain in her neck, back, and knee. Id. Plaintiff also reported her pain increased when standing, squatting, bending, lifting, or riding, prevented her from doing housework, and woke her every night. Id. Plaintiff's examination revealed TTP in her back and decreased sensation to light touch. Id. Shannon Ardis, M.P.T. ("PT Ardis"), recommended therapy three times a week for six weeks. Id.
Plaintiff was discharged from Palmetto Therapy due to insurance and financial reasons. Tr. at 414. The physical therapist noted Plaintiff had been seen twice, for her initial evaluation and an additional therapy session, but had a minimal change in pain, despite anticipated improvement. Id.
On March 25 and 27 and April 1, 3, 4, 8, 9, 10, 14 2014, Plaintiff attended physical therapy at Three Rivers. Tr. at 424-25, 473. During the sessions, Plaintiff reported pain with activity. Id.
On April 14, 2014, Plaintiff presented to Dr. Alexander and reported neck pain that was severe and radiated between her shoulder blades to her elbow and caused headaches. Tr. at 573-75. Plaintiff rated the pain an 8/10 and reported it was exacerbated by flexion, extension, and side-to-side movements. Id. Dr. Alexander observed Plaintiff move with normal gait, strength, and senses, but she had mild soft tissue PTP and extension and rotation caused posterior neck, left elbow, and upper back pain. Id. Dr. Alexander diagnosed acute neck pain and ordered an EMG/NCS of the upper extremities and cervical spine to rule out cervical radiculopathy. Id.
On April 16, 2014, Plaintiff attended physical therapy at Three Rivers and reported pain. Tr. at 424. PT Ardis notified Dr. Alexander that Plaintiff had completed ten treatment sessions and had little change in her lower back pain and continued to complain of pain into her thighs, calves, and feet of 9/10 that worsened with attempted housework and prolonged sitting, standing, or walking. Tr. at 412-13, 428-29. She recommended therapy two to three times a week for six weeks. Id.
On April 17, 2014, Plaintiff presented to Dr. Alexander with complaints of lumbar spine pain of 9/10. Id. Dr. Alexander administered a right L5 transforaminal epidural steroid injection and diagnosed lumbar radiculopathy. Id.
On April 21, 2014, Plaintiff presented to Dr. Alexander for an EMG/NCS of the upper extremities and cervical spine. Tr. at 385-89. Dr. Alexander diagnosed mild, chronic, right C5 and C6 radiculopathy. Id. Dr. Alexander suggested a cervical spine MRI, physical therapy, and an injection for carpal tunnel syndrome. Id. Dr. Alexander opined Plaintiff would be unable to return to work for one month and continued Plaintiff's therapy at Three Rivers. Tr. at 412, 571-72.
On April 28, 2014, Plaintiff presented to Dr. DeMarco for bilateral foot pain and review of her chronic conditions. Tr. at 366-69. Dr. DeMarco noted Plaintiff's lumbar strain history and treatment with Dr. Alexander. Id. Dr. DeMarco also noted Plaintiff would continue to follow up with Dr. Alexander for right, lower extremity radiculopathy. Id. Plaintiff's examinations reflected a normal neck and appropriate mood and affect. Id. Dr. DeMarco modified Paxil because Plaintiff reported "some sedation." Tr. at 366.
Also on April 28, 2014, MRIs reflected normal cervical and lumbar spines. Tr. at 409-11.
On April 30, 2014, Plaintiff presented to Dr. Alexander for an injection due to lumbar spine pain of 9/10. Tr. at 384. Dr. Alexander diagnosed right lumbar radiculopathy at L4-L5. Id.
On May 6, 2014, Plaintiff presented to Dr. Alexander with complaints of neck and arm pain of 8/10. Tr. at 569-70. Dr. Alexander diagnosed cervical radiculopathy, prescribed Neurontin, and prescribed therapy three times a week for six weeks at Three Rivers. Id., Tr. at 432.
On May 12, 14, 19, 20, and 22, 2014, Plaintiff attended physical therapy at Three Rivers. Tr. at 421-23, 458.
On May 16, 2014, Plaintiff presented to Dr. Alexander for a second injection due to lumbar spine pain of 8 to 9/10. Tr. at 383. Dr. Alexander diagnosed right lumbar radiculopathy at L4-L5. Id.
On May 22, 2014, PT Ardis notified Dr. Alexander that Plaintiff had completed 15 treatment sessions at Three Rivers for her lower back, cervical spine, and extremities, but reported no change and pain continued throughout her cervical, thoracic, and lumbar spines, elbows, legs, knees, and hands, with intermittent headaches. Tr. at 426-27, 443-44. Plaintiff consistently reported her pain was 9/10, and PT Ardis recommended she be discharged from physical therapy "due to lack of functional/objective/subjective gains." Id. Dr. Alexander agreed with this plan on May 27, 2014. Tr. at 443, 460-61.
On May 29, 2014, Plaintiff presented for follow up of her pain and myalgia with Dr. DeMarco. Tr. at 435-38. Dr. DeMarco noted Plaintiff's history of chronic pain and that she was treated by Dr. Alexander for radiculopathy and recently completed a second round of physical therapy. Id. Dr. DeMarco also noted Plaintiff kept a symptom journal for her daily migratory pain in her extremities, and he planned to prescribe Lyrica. Id. Plaintiff's examinations reflected a normal neck exam, full ROM in her extremities, and appropriate mood and affect. Id. Dr. DeMarco prescribed Hydrocodone. Id.
On June 2, 2014, Plaintiff presented to Dr. Alexander with complaints of bilateral knee pain of 9/10 that radiated to her feet. Tr. at 565-68. Plaintiff described the pain as dull and throbbing, with swelling and a pulling sensation, that was exacerbated by bending, standing, and walking. Id. Plaintiff's examination revealed medial joint wide tenderness, and a knee x-ray revealed medial joint space narrowing. Id. Dr. Alexander diagnosed osteoarthritis of the bilateral knee joints and knee sprain or strain. Id. Dr. Alexander ordered a right knee MRI for possible internal derangement and ordered physical therapy at Three Rivers for Plaintiff's knees. Id.
On June 9, 2014, Plaintiff presented to Dr. Alexander and reported low back and leg pain at 9/10 after the second injection. Tr. at 440-41. Dr. Alexander diagnosed lumbosacral neuritis and scheduled a third injection. Id.
On June 11, 2014, Dr. Alexander administered a third injection into Plaintiff's lumbar spine. Tr. at 439.
On June 14, 2014, Dr. DeMarco completed an opinion regarding Plaintiff's mental condition at the Social Security Administration's request. Tr. at 445. Dr. DeMarco noted he last saw Plaintiff on May 29, 2014, and her mental diagnosis was depression and anxiety. Id. Dr. DeMarco also noted he had prescribed Paroxetine, the medications helped Plaintiff's condition, and he had not recommended psychiatric care. Id. He opined Plaintiff had an intact thought process, appropriate thought content, normal mood and affect, good concentration and memory and she was oriented. Id. He also opined Plaintiff had good abilities to complete basic Activities of Daily Living ("ADLs"), relate to others, and complete simple, routine tasks, and adequate ability to complete complex tasks with the ability to manage her funds. Id.
On June 27, 2014, Plaintiff presented to Three Rivers with complaints of knee pain of 8/10. Tr. at 442. Plaintiff reported Dr. Alexander had taken knee x-rays and opined she had osteoarthritis, but she was unable to obtain an MRI because her insurance "ran out." Tr. at 442. The PT noted Plaintiff would be seen twice a week for six weeks and the therapy would focus on her knee's functionality and strength. Id.
Also on June 27, 2014, Plaintiff presented to Dr. DeMarco for follow up and review of her chronic conditions. Tr. at 447-50. Dr. DeMarco noted Plaintiff's back pain and myalgias were persistent. Id. Dr. DeMarco also noted he was waiting for Lyrica to be approved via an assistance program for Plaintiff's myalgia, he prescribed Tramadol instead of Hydrocodone for her radiculopathy, and increased Paxil because she still had significant anxiety that worsened when riding in a car. Id.
On July 9, 10, 14, and 15, 2014, Plaintiff attended physical therapy sessions at Three Rivers. Tr. at 452-55, 496.
On July 15, 2014, Plaintiff presented to Dr. Alexander after her third lumbar injection and reported continued lower back pain of 8/10 with increased activity. Tr. at 456-57, 482-83, 563-64. Plaintiff also reported upper back, knee, neck, shoulder, and arm pain and headaches. Id. Dr. Alexander assessed lumbosacral neuritis, substituted Tramadol for Vicodin, and ordered physical therapy three times a week for six weeks at Three Rivers for Plaintiff's neck and knee. Id.
Also on July 15, 2014, Lisa Clausen, Ph.D. ("Dr. Clausen"), a state agency psychologist, reviewed the record and completed a psychiatric review technique ("PRT") assessment. Tr. at 37-38, 621-22. Dr. Clausen opined Plaintiff had mild restrictions of activities of daily living ("ADLs") and mild difficulties in maintaining social functioning, concentration, persistence, or pace, but no repeated episodes of decompensation. Id.
On July 22, 23, 29, and 30 and August 5 and 6, 2014, Plaintiff attended physical therapy sessions at Three Rivers. Tr. at 452-55, 496. During these sessions, Plaintiff reported knee and neck pain that increased during various activities, such as holding a baby, washing dishes, or stepping up, and the physical therapist noted Plaintiff cried when asked how she was doing. Id. On August 6, 2016, the physical therapist noted Plaintiff followed her treatment plan well, but failed to progress. Id.
On August 7, 2014, PT Ardis informed Dr. Alexander that Plaintiff had attended 12 treatment sessions at Three Rivers for her neck and knee. Tr. at 471-72, 487-89, 500-02. She noted Plaintiff reported continued lower cervical and knee pain that increased when holding an infant, reaching overhead, sweeping, cleaning, riding in a car, squatting, climbing stairs, and standing or walking more than 15 minutes. Id. Plaintiff had made "some gains in her overall [ROM], though denie[d] any subjective or functional improvement thus far." Id. PT Ardis recommended additional therapy. Id
On August 11, 2014, Plaintiff presented to Dr. Alexander after therapy and reported improved neck pain that ranged from 6 to 7/10, but no arm symptoms. Tr. at 480-81, 560-61. Plaintiff also reported shoulder, lower back, right knee, and thigh pain of 8/10. Id. Dr. Alexander assessed lower back and right thigh pain, continued physical therapy, and instructed Plaintiff to resume prior restrictions. Id. Dr. Alexander ordered physical therapy for Plaintiff's back three times a week for six weeks. Tr. at 466. Dr. Alexander opined Plaintiff would be unable to return to work for one month. Tr. at 562.
Also on August 11, 2014, Plaintiff presented to Dr. DeMarco for follow up and review of her chronic conditions. Tr. at 515-18, 560. Dr. DeMarco noted that Dr. Alexander had prescribed Neurontin, so he did not obtain Lyrica for Plaintiff's myalgia. Id. He also noted Dr. Alexander treated Plaintiff's radiculopathy with Hydrocodone. Id. Dr. DeMarco continued Lasix for Plaintiff's lower extremity edema and Paxil for her depression and anxiety. Id. Plaintiff's physical and psychiatric examination were relatively normal with appropriate mood and affect. Id. Dr. DeMarco assessed lumbar strain or sprain, knee degenerative joint disease, and candida intertrigo. Id.
On August 14, 2014, Darla Mullaney, M.D. ("Dr. Mullaney"), a state agency physician, reviewed the record and completed a physical residual functional capacity ("RFC") assessment. Tr. at 39-41, 623-25. Dr. Mullaney opined Plaintiff could perform medium work with postural limitations. Id.
On August 13, 19, 20, and 27, 2014, Plaintiff attended physical therapy sessions, but did not "seem to be making any fundamental gains." Tr. at 471-72, 492-96.
On August 26, 2014, Plaintiff presented to Dr. Alexander with complaints of neck, shoulder, arm, knee, and toe pain that ranged from 7 to 8/10. Tr. at 478-79, 558-59. Dr. Alexander assessed lumbar and cervical radiculopathy, prescribed Neurontin, discontinued Vicodin, and continued physical therapy. Id. Dr. Alexander ordered physical therapy for Plaintiff's neck twice a week for six weeks. Tr. at 465.
On September 3, 5, and 8, 2014, Plaintiff attended physical therapy sessions. Tr. at 471-72, 492-96.
On September 8, 2014, PT Ardis noted Plaintiff had completed 34 treatment sessions that included cervical and lumbar range, strength, and stabilization exercises. Tr. at 462-64. PT Ardis noted Plaintiff had made some gains in her lower extremity strength and cervical and lumbar spine ranges over the course of several months of treatments, but continued to report increased pain with any type of activity, including therapy, that ranged from 6 to 8/10. Id. Plaintiff had reported severe pain when lying supine, walking, squatting, bending, or lifting, and the pain limited her sleep and ability to do chores. Id. PT Ardis recommended Plaintiff be discharged from physical therapy. Id.; see also Tr. at 468, 497-99; but see Tr. at 484-86 (appearing to be another statement issued by the therapist on the same day, but recommending additional therapy, that was also dated and signed by Dr. Alexander).
On September 9, 2014, Plaintiff presented to Dr. Alexander with complaints of neck, arm, hand, lower back, thigh, and knee pain that ranged from 6 to 8/10. Tr. at 476-77, 556-57. Dr. Alexander assessed cervical radiculopathy at C5-C6 and right radiculopathy at L4-L5. Id. Dr. Alexander opined Plaintiff had reached maximum medical improvement with a 5% whole person impairment secondary to her cervical spine injury and a 5% whole person impairment secondary to her lumbar spine injury. Id. Dr. Alexander discontinued physical therapy and discharged Plaintiff. Id.
On September 22, 2014, Plaintiff presented to Dr. Alexander with complaints of low back pain. Tr. at 474-75, 554-55. Dr. Alexander noted Plaintiff was "not eligible for any cervical or lumbar epidural steroid injections until December 2014." Id. Dr. Alexander assessed cervical and lumbar radiculopathy and instructed Plaintiff to follow up with her primary care provider for medications. Id.
On September 22, 2014, Plaintiff presented to Dr. DeMarco for follow up of her lumbar DJD and myalgia. Tr. at 511-14. Plaintiff's physical and psychiatric examinations were relatively normal, but she had mild tenderness in her low back. Tr. at 513. Dr. DeMarco noted Plaintiff's insurance "ha[d] run out, she [could not] afford the [G]abapentin, [and wondered if] there [was] something she c[ould] take for pain which [wa]s less expensive." Tr. at 511. Dr. DeMarco continued Lasix for Plaintiff's lower extremity edema and instructed her to limit sodium intake and elevate her legs. Id. Dr. DeMarco noted Plaintiff had been released by Dr. Alexander and could no longer afford Neurontin, but she would obtain Lyrica through an assistance program and try Elavil. Tr. at 512. Dr. DeMarco also noted Plaintiff stopped taking Paxil for her depression and anxiety because she could not afford it. Id.
On September 29, 2014, Dr. DeMarco completed a second opinion regarding Plaintiff's mental condition at the Social Security Administration's request. Tr. at 490. Dr. DeMarco noted he last saw Plaintiff on September 22, 2014, and her mental diagnoses were depression, anxiety, and insomnia. Id. Dr. DeMarco also noted he had previously prescribed Paxil and Elavil, the medications partially helped Plaintiff's condition, and he had not recommended psychiatric care. Id. He opined Plaintiff had an intact thought process, appropriate thought content, normal mood and affect, good concentration and memory, and she was oriented. Id. He also opined Plaintiff had good abilities to complete basic ADLs, relate to others, and complete simple, routine tasks, and adequate ability to complete complex tasks with the ability to manage her funds. Id.
On October 10, 2014, Dr. Alexander opined Plaintiff would be unable to return to work for one month. Tr. at 553.
On October 23, 2014, Plaintiff presented to Dr. DeMarco for follow up of her chronic conditions. Tr. at 503, 507-10. Plaintiff reported her prior medication "helped a lot," but she had not received Lyrica because her address had changed. Id. Plaintiff's physical and psychiatric examinations were normal with appropriate mood and affect. Id. Dr. DeMarco decreased Elavil for her radiculopathy because it made her "groggy" and ordered a knee MRI. Id. Dr. DeMarco continued Lasix for Plaintiff's lower extremity edema and noted he would attempt to obtain Lyrica through an assistance program. Id.
On November 11, 2014, Dr. Alexander opined Plaintiff would be unable to return to work for one month. Tr. at 552.
On December 11, 2014, Dr. Alexander opined Plaintiff would be unable to return to work for one month. Tr. at 551.
On December 19, 2014, Plaintiff presented to Dr. DeMarco for follow up and review of her chronic conditions. Tr. at 503-06. Plaintiff reported continued neck, back, shoulder, wrist, and knee pain. Id. Plaintiff's psychiatric and physical exams were normal with appropriate mood and affect, but she tested positive for the flu. Id. Dr. DeMarco noted Plaintiff was "depressed by her situation (persistent pain, no work)" and he contemplated resuming antidepressant therapy. Id. Plaintiff stopped taking other medications, such as Neurontin, for her diffuse myalgia because she could no longer afford it. Id. Dr. DeMarco continued Lasix for Plaintiff's lower extremity edema and attempted to obtain Lyrica. Id.
Also on December 19, 2014, Dale Van Slooten, M.D. ("Dr. Van Slooten"), a state agency physician reviewed the record upon reconsideration and affirmed Dr. Mullaney's initial RFC assessment that Plaintiff was capable of performing medium work. Tr. at 519-26.
On January 11, 2015, Dr. Alexander opined Plaintiff would be unable to return to work for one month. Tr. at 550.
On January 13, 2015, Leslie Burke, Ph.D. ("Dr. Burke"), a state agency psychologist reviewed the record upon reconsideration and opined Plaintiff's depression and anxiety were not severe and caused mild difficulties in ADLs, social functioning, and concentration, persistence, and pace in her PRT assessment. Tr. at 527-40.
Also on January 13, 2015, Plaintiff presented to Pee Dee Community Mental Health Center ("CMHC") for an initial clinical assessment. Tr. at 609.
On January 29, 2015, Plaintiff presented to Dr. DeMarco and reported continued back and arm pain. Tr. at 586-90. Dr. DeMarco noted Plaintiff's depression "seem[ed] to have lifted somewhat" and her lower extremity edema had resolved, but Plaintiff had not received Lyrica for her myalgia and had switched back to Elavil for her radiculopathy that she was able to tolerate with "some improvement in pain." Id. Dr. DeMarco noted he would double Elavil and instructed Plaintiff to notify him if over sedation occurred. Plaintiff's physical and psychiatric examinations were relatively normal with appropriate mood and affect, but she had mild lumbar tenderness. Id. Dr. DeMarco assessed lumbosacral disc degeneration and myalgia. Id.
On February 3, 2015, Plaintiff presented to Dr. Alexander with complaints of low back and leg pain down to her knees. Tr. at 548-49. Plaintiff reported her back pain was constant, her leg pain occurred two to three times per week, and rated the pain as 8/10. Id. Dr. Alexander diagnosed cervical and lumbar radiculopathy, prescribed Elavil and Ultram, and noted he intended to wean Plaintiff off Elavil and transition to Cymbalta. Id.
On February 6, 2015, Plaintiff returned to CMHC. Tr. at 609-12. Plaintiff reported her symptoms of fear and depression began after the bus accident in October 2013, resulting pain, and termination from work. Id. Plaintiff also reported she was a victim of domestic violence from an ex-husband. Id. Plaintiff's mental status examination reflected she was cooperative, her affect was appropriate, her mood was passive and depressed, her thought process was normal, appropriate, coherent, and relevant, her thought content contained ideas of hopelessness, her recent memory was poor, she was able to concentrate, but easily distracted, and she had decreased energy levels. Id. Sandra D. Gamble, M.A.C. ("Counselor Gamble") assessed post-traumatic stress disorder ("PTSD") and assigned a global assessment functioning ("GAF") score of 57. Id.
The GAF scale is used to track clinical progress of individuals with respect to psychological, social, and occupational functioning. American Psychiatric Association: Diagnostic & Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000 ("DSM-IV-TR"). The GAF scale provides 10-point ranges of assessment based on symptom severity and level of functioning. Id. If an individual's symptom severity and level of functioning are discordant, the GAF score reflects the worse of the two. Id.
A GAF score of 51-60 indicates "moderate symptoms (e.g., circumstantial speech and occasional panic attacks) OR moderate difficulty in social or occupational functioning (e.g., few friends, conflicts with peers or co-workers)." DSM-IV-TR.
On February 11, 2015, Dr. Alexander opined Plaintiff would be unable to return to work for one month. Tr. at 547.
On February 13, 2015, Plaintiff presented to Dong Ha Chung ("Dr. Chung") at CMHC and reported depression, crying spells, hollering, not going out in public, fear of driving, having nightmares, and being scared. Tr. at 607-08. Plaintiff also reported it was her first attempt to obtain mental health treatment and she had suffered from pain since the accident in October 2013. Id. Plaintiff's physical examination was within normal limits, but her mood was depressed and anxious. Id. Dr. Chung diagnosed PTSD, provided counseling, and assigned a GAF score of 48. Id. Dr. Chung prescribed Tramadol and Amitriptyline. Id.
A GAF score of 41-50 indicates "serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job)." DSM-IV-TR.
On March 2, 2015, Plaintiff presented to Dr. Alexander with complaints of back pain. Tr. at 545-46. Dr. Alexander diagnosed lumbosacral neuritia, instructed Plaintiff to wean off Elavil to try Cymbalta, and noted her prior restrictions would resume. Id.
On March 10, 2015, Plaintiff presented to Dr. DeMarco for follow up and review of her chronic conditions. Tr. at 591-95. Dr. DeMarco noted that Dr. Alexander was weaning Plaintiff off Amitriptyline and Elavil to try other medications. Id. Dr. DeMarco also noted Plaintiff recently started attending CMHC for her depression and was followed by Dr. Chung. Id. Plaintiff's lower extremity edema had resolved and her myalgias had improved with Lyrica. Id. Dr. DeMarco assessed lumbosacral disc degeneration and alopecia. Id.; Tr. at 596-98 (containing blood work).
On March 23, 2015, Plaintiff presented to Dr. Alexander for her continued pain. Tr. at 543-44. Plaintiff reported her low back and right leg pain down to her foot ranged from 8 to 10/10. Id. Dr. Alexander noted Plaintiff had been taking Elavil, but was tapered off the medication to try Cymbalta. Id. Dr. Alexander diagnosed lumbar radiculopathy and prescribed Cymbalta. Id.
On March 27, 2015, Plaintiff presented to Dr. Chung, who noted Plaintiff was unable to afford Duloxetine and her depression, anxiety, and chronic pain presented issues. Tr. at 606. Plaintiff's physical examination was within normal limits and her affect was appropriate with intact memory and concentration, but her mood was depressed and anxious. Id. Dr. Chung diagnosed PTSD, provided counseling, assigned a GAF score of 50, and provided Cymbalta samples to Plaintiff. Id.
On April 21, 2015, Plaintiff presented to Dr. Alexander with complaints of low back pain. Tr. at 541-42. Dr. Alexander noted Plaintiff had been taking Cymbalta without side effects and "[i]t d[id] help somewhat with her pain." Id. Dr. Alexander diagnosed lumbosacral neuritis and doubled Cymbalta. Id.
On May 12, 2015, Plaintiff presented to Dr. DeMarco for follow up. Tr. at 599-603. Dr. DeMarco noted that Plaintiff saw Dr. Alexander for her lumbar issues and Dr. Chung for her depression. Id. Plaintiff's physical and psychiatric examinations were relatively normal with appropriate mood and affect. Id. Dr. DeMarco assessed lumbosacral disc degeneration and alopecia. Id.
On May 29, 2015, Plaintiff presented to CMHC. Tr. at 604-05. Dr. Chung noted Plaintiff's last visit was two months prior and she took Cymbalta, did not care for Duloxetine, and discontinued Tramadol for her chronic pain. Id. Plaintiff's physical examination was within normal limits and her mood was euthymic with appropriate affect and intact memory and concentration. Id. Dr. Chung diagnosed PTSD and assigned a GAF score of 50. Id. Dr. Chung scheduled a follow-up appointment for three months. Id.
The record does not contain notes dated between May 29, 2015, and March 7, 2016, but the record appears to be incomplete, as the ALJ references an opinion by Dr. Alexander rendered in October 2015 within his decision. Tr. at 27; see also Tr. at 645-47.
On March 7, 2016, Plaintiff presented to Dr. Alexander with complaints of severe low back and thigh pain that radiated to her knees. Tr. at 613-14. Plaintiff reported her insurance would not cover Lyrica and her primary care physician prescribed Neurontin. Id. Dr. Alexander diagnosed chronic low back pain, continued Neurontin, and refilled Ultram. Id.
C. The Administrative Proceedings
1. The Administrative Hearing
a. Plaintiff's Testimony
At the hearing on September 30, 2016, Plaintiff testified she was born on June 21, 1969, completed the twelfth grade, and last worked in 2013 as a school bus driver until she was in a bus accident on October 28, 2013, that caused back and neck pain. Tr. at 647-48. She testified she went to the hospital after the accident, did not break any bones or have head trauma, but had lumbar muscle spasms and a pinched nerve in her lower back. Tr. at 648. She reported Dr. Alexander conducted an MRI and a needle test that diagnosed the pinched nerve. Tr. at 649. She said she had three physical therapists, without benefit. Id. She testified Dr. Alexander prescribed Cymbalta and Lyrica, and then Gabapentin replaced the Lyrica because Medicare no longer covered it. Tr. at 650. She also was prescribed Hydrocodone, which helped, but did not stop, the pain. Tr. 651.
Plaintiff testified standing and walking increased her back pain, such that she could stand for 20-30 minutes before needing to sit for 30 minutes then needing to stand again. Tr. at 651-52. She testified her most comfortable position was taking medicine and lying down. Tr. at 652. She said she would spend more than five to six hours lying down each day. Id. She reported her 2014 income from the Florence School District was for accrued leave. Tr. at 652-53.
Plaintiff testified lifting and carrying items caused sharp pains down her body, but that she could carry about five pounds. Tr. at 653. She stated she tried to carry a ten-pound bag of sugar, but experienced sharp pain in her back and legs. Id. She further testified that kneeling, stooping, bending, crouching, and crawling also caused sharp pains. Id. Plaintiff stated she could not perform a job sitting down for eight hours a day, five days a week because she would experience too much pain that she would not be able to work through. Id. She said she would need to take her medication and lie down, and she did not think she would be able to return to work after a rest because her medication made her fall asleep for hours. Tr. 653-54, 659.
In response to her counsel's questions, Plaintiff testified she had worked as a bus driver for over ten years, along with several part-time jobs like clerical work, Tr. at 654-55, 660, and pressing shirts, Tr. at 659. She said she did not think she could perform sedentary work. Tr. at 655. She stated her depression made her easily aggravated and bothered and her mind drifted. Id. She testified she listened to the radio during the day, but that she could not keep up with a radio show because she would fall asleep. Tr. at 655-56. She said Duloxetine helped her depression somewhat and kept her from "having an attitude out of my character." Tr. at 656. She said she was not as irritable as she had been, but still had crying spells. Id. She stated she lived with her two grandchildren, who attended school during the day, when she slept a lot. Id. She said she would receive help with the laundry from her father's wife, with whom she would go to her house to wash clothes or to the laundromat to dry them. Tr. at 657. Plaintiff testified she did not always perform household chores, for which her apartment manager had written her up after site checks because she lives in government housing. Tr. at 657-58. She said her family did not help, but her father's wife sometimes would help her and drove her to doctor's appointments. Tr. at 658. She testified she could not handle driving because of her nerves and sleep-inducing medications. Id. She said she would sleep more than two hours after each dose of hydrocodone and Gabapentin, with three doses daily. Tr. 658-59.
b. Vocational Expert's Testimony
Vocational Expert ("VE") J. Adger Brown, Jr., reviewed the record and testified at the hearing. Tr. at 660-62. The VE categorized Plaintiff's PRW as a bus driver as medium, semiskilled work with a specific vocational preparation ("SVP") of 4, Dictionary of Occupational Titles ("DOT") No. 913.462-010; a shirt presser as light, unskilled work with an SVP of 2, DOT No. 362.684-018; and an office clerk as light, semiskilled work with an SVP of 3, DOT No. 209.562-010. Tr. at 661. The ALJ described a hypothetical individual of Plaintiff's vocational profile who was limited to sedentary work with only occasional postural activities, but no climbing ladders, ropes, or scaffolds, should avoid exposure to hazards and unprotected heights, should not drive, and was limited to simple, routine tasks with no fast-paced production requirements. Id. The VE testified the hypothetical individual could not perform Plaintiff's PRW. Id. The ALJ asked whether there were any other jobs the hypothetical person could perform. Id. The VE identified sedentary unskilled work, with an SVP of 2 or lower, such as a cashier, DOT No. 209.567-014, charge account clerk, DOT No. 205.367-014, and administrative support occupations, DOT No. 249.587-014, with 145,000, 3,000, and 44,000 positions available nationally, respectively. Tr. at 661-62.
The DOT number provided by the VE and used by the ALJ is assigned to a food and beverage order clerk position, not a cashier. Compare Tr. at 661 (citing DOT No. 209.567-014), with 1991 WL 671794 (containing the description for a food and beverage order clerk at DOT No. 209.567-014) and 1991 WL 671840 (containing the description for a cashier at DOT No. 211.462-010). However, one of the issues in this case focuses upon the General Educational Development ("GED") reasoning level requirement, which is 3 for both positions, such that the incorrect number or label does not impact the analysis in this case.
The VE testified an individual who was off-task 15% of the time could not perform any work. Tr. 662.
2. The ALJ's Findings
In his decision dated December 29, 2016, the ALJ made the following findings of fact and conclusions of law:
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2018.
2. The claimant has not engaged in substantial gainful activity since October 1, 2013, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: osteoarthritis of bilateral knees; degenerative disk disease; affective disorder; and anxiety disorder (20 CFR 404.1520(c) and 416.920(c)).Tr. at 21-28. II. Discussion
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, I find that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except: occasional postural activities, except no climbing ladders, ropes, or scaffolds; avoid concentrated exposure to heights and hazards; no driving; and performing simple, routine tasks with no fast-paced production work.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on June 21, 1969 and was 44 years old, which is defined as a younger individual age 18-44, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from October 1, 2013, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).
Plaintiff alleges the Commissioner erred for the following reasons:
1) the ALJ's step five finding was not supported by substantial evidence because the VE's testimony was not consistent with the DOT and the ALJ failed to reconcile the VE's testimony with the DOT in violation of SSR 00-4p;
2) the ALJ failed to evaluate Plaintiff's symptoms in accordance with SSR 16-3p;
3) the ALJ failed to properly assess Dr. Alexander's opinions; and
4) the ALJ failed to explain his RFC findings regarding Plaintiff's cervical radiculopathy.
The Commissioner counters that substantial evidence supports the ALJ's findings and the ALJ committed no legal error in his decision.
A. Legal Framework
1. The Commissioner's Determination-of-Disability Process
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a "disability." 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability as:
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 months.42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458 (1983) (discussing considerations and noting "need for efficiency" in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity; (2) whether she has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents the claimant from performing PRW; and (5) whether the impairment prevents her from doing substantial gainful employment. See 20 C.F.R. §§ 404.1520, 416.920. These considerations are sometimes referred to as the "five steps" of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (providing that if the Commissioner can find claimant disabled or not disabled at any step, the Commissioner may make a determination and not go on to the next step).
The Commissioner's regulations include an extensive list of impairments ("the Listings" or "Listed impairments") the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. §§ 404.1525, 416.925. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, she will be found disabled without further assessment. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that her impairments match several specific criteria or are "at least equal in severity and duration to [those] criteria." 20 C.F.R. §§ 404.1526, 416.926; see Sullivan v. Zebley, 493 U.S. 521, 530-31 (1990); see also Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish her impairment is disabling at Step 3).
In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's PRW to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. §§ 404.1520(h), 416.920(h).
A claimant is not disabled within the meaning of the Act if she can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. §§ 404.1520(a), (b), (f), 416.920(a), (b), (f); Social Security Ruling ("SSR") 82-62 (1982). The claimant bears the burden of establishing her inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence the claimant can perform alternative work and such work exists in the national economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that she is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of "any final decision of the Commissioner . . . made after a hearing to which [s]he was a party." 42 U.S.C. § 405(g). The scope of that federal court review is narrowly tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See id.; Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to "try [these cases] de novo or resolve mere conflicts in the evidence." Vitek v. Finch, 438 F.2d 1157, 1157 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. Richardson, 402 U.S. at 390. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (citation omitted); see also Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). "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]." Johnson, 434 F.3d at 653 (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996)). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed "even should the court disagree with such decision." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
B. Analysis
1. VE's Testimony Conflicted with the DOT
Plaintiff argues the ALJ's step five finding is flawed because he did not resolve a conflict between the VE's testimony and the DOT. [ECF No. 16 at 15-16]. She argues the jobs identified by the VE required a GED reasoning level of two or three, which conflicted with the restrictions in the RFC assessment, and the ALJ improperly relied on the VE's testimony. Id.
The Commissioner argues there was no apparent conflict because the ALJ "generously limited Plaintiff to simple, routine tasks with no fast-paced production work," despite the lack of mental functional limitations in the record. [ECF No. 19 at 20-25]. She further asserts other circuits and the "majority of courts in [this] Circuit agree that no conflict exists between a limitation to simple, routine work and the performance of jobs with a reasoning level of two." Id. Finally, the Commissioner argues any error would be harmless because Plaintiff completed high school and demonstrated the ability to perform prior semi-skilled work, such that she is able to perform the simple jobs provided by the VE. Id.
At step five in the sequential evaluation process, "the Commissioner bears the burden to prove that the claimant is able to perform alternative work." Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015) (citing Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987)). While assessing the claimant's ability to perform other jobs existing in significant numbers in the national economy, the ALJ should take administrative notice of job information contained in the DOT. 20 C.F.R. § 404.1566(d) and § 416.966(d); see also SSR 00-4p (providing that "we rely primarily on the DOT (including its companion publication, the [Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles]) for information about the requirements of work in the national economy"). In some cases, ALJs obtain testimony from VEs to address how certain restrictions affect claimants' abilities to perform specific jobs. 20 C.F.R. § 404.1566(e) and § 416.966(e).
In recognizing that opinions from VEs sometimes conflict with the information in the DOT, the Social Security Administration ("SSA") promulgated SSR 00-4p to explain how these conflicts should be resolved. The SSR 00-4p's purpose is to "require the ALJ (not the [VE]) to '[i]dentify and obtain a reasonable explanation' for conflicts between the [VE]'s testimony and the [DOT], and to 'explain in the determination or decision how any conflict that has been identified was resolved.'" Pearson, 810 F.3d at 208 (citing SSR 00-4p (emphasis in original)). According to SSR 00-4p, the ALJ has two responsibilities to fulfill. Id. "First, the ALJ must '[a]sk the [VE] . . . if the evidence he or she has provided conflicts with information provided in the [DOT].'" Id. (citing SSR 00-4p). "[S]econd, '[i]f the [VE]'s . . . evidence appears to conflict with the [DOT],' the ALJ must 'obtain a reasonable explanation for the apparent conflict.'" Id. (citing SSR 00-4p). "SSR 00-4p directs the ALJ to 'resolve the conflict by determining if the explanation given by the [VE] is reasonable'" and "to 'explain the resolution of the conflict irrespective of how the conflict was identified.'" Id. (citing SSR 00-4p (emphasis in original)). Therefore, "[t]he ALJ independently must identify conflicts between the expert's testimony and the [DOT]." Id. at 209. Furthermore, "an ALJ has not fully developed the record if it contains an unresolved conflict between the VE's testimony and the DOT" and "an ALJ errs if he ignores an apparent conflict on the basis that the VE testified that no conflict existed." Henderson v. Colvin, 643 F. App'x 273, 277 (4th Cir. 2016) (citing Pearson, 810 F.3d at 210).
The court explained that an "apparent conflict" existed when the VE's testimony 'appear[ed] to conflict with the [DOT]," but an explanation from the VE may show that no actual conflict exists. Pearson, 810 F.3d at 209. ALJs must resolve both obvious and apparent conflicts between the VE's testimony and the DOT.
Pertinent to Plaintiff's argument, the ALJ determined she was limited to "perform simple, routine tasks with no fast-paced production work." Tr. at 24. He relied on the VE's testimony to find Plaintiff could perform jobs as a cashier, charge-account clerk, and administrative support. Tr. at 28. The DOT indicates these jobs have GED reasoning levels of two and three and require the worker to "[a]pply commonsense understanding to carry out detailed but uninvolved written or oral instructions" and "[d]eal with problems involving a few concrete variables in or from standardized situations" or "[a]pply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form" and "[d]eal with problems involving several concrete variables in or from standardized situations." See 211.462-010 CASHIER, DOT (4th ed., revised 1991), 1991 WL 671840; 205.367-014 CHARGE-ACCOUNT CLERK, DOT (4th ed., revised 1991), 1991 WL 671715; 249.587-014 CUTTER-AND-PASTER, DOT (4th ed., revised 1991), 1991 WL 672348. However, GED reasoning level one's definition only requires a worker to "[a]pply commonsense understanding to carry out simple one- or two-step instructions" and "[d]eal with standardized situations with occasional or no variables in or from these situations encountered on the job." See Appendix C - Components of the Definition Trailer, DOT, 1991 WL 688702.
As noted previously, the DOT number has been modified to reflect a cashier position, as the DOT number provided by the VE pertains to a food and beverage order clerk, but both positions require a GED reasoning level of three. Compare Tr. at 661 (citing DOT No. 209.567-014), with 1991 WL 671794 (containing the description for a food and beverage order clerk at DOT No. 209.567-014) and 1991 WL 671840 (containing the description for a cashier at DOT No. 211.462-010).
For clarity, the specific label for the administrative support position associated with the DOT number provided by the VE is used. See 1991 WL 672348.
In Henderson, the United States Court of Appeals for the Fourth Circuit ("Fourth Circuit") acknowledged that "there is an apparent conflict between an RFC that limits [a claimant] to one-to-two step instructions and GED reasoning Code 2, which requires the ability to understand detailed instructions." 643 F. App'x at 277. Accordingly, the court found the ALJ failed to meet his burden at step five because the VE's testimony did not provide substantial evidence to show that the plaintiff's RFC would allow him to perform work that existed in significant numbers. Id.
This case is similar to Henderson in that the RFC assessment limited Plaintiff to "simple" tasks, but it differs in that the ALJ did not specify Plaintiff was limited to one-to-two step instructions. However, "[f]ollowing the Fourth Circuit's decision in Henderson, this court considered restrictions to simple, routine tasks in several cases and found that a conflict existed between the restrictions and GED reasoning level two." Austin v. Berryhill, No. 1:17-cv-1797-JMC-SVH, 2018 WL 2392209, at *19 (D.S.C. Apr. 24, 2018), adopted by 2018 WL 2389595 (D.S.C. May 24, 2018).
Id. (citing Stepp v. Berryhill, No. 1:17-771-MBS-SVH, 2017 WL 6806664 (D.S.C. Dec. 6, 2017), adopted by 2018 WL 294517 (D.S.C. Jan. 3, 2018); Piner v. Berryhill, No. 1:17-TMC-SVH, 2017 WL 4712084 (D.S.C. Sept. 28, 2017), adopted by 2017 WL 4682004 (D.S.C. Oct. 18, 2017); Pressley v. Berryhill, No. 8:16-2716-BHH-JDA, 2017 WL 4174780, at *10-11 (D.S.C. Aug. 24, 2017), adopted by 2017 WL 4156460 (D.S.C. Sept. 19, 2017); Dewalt-Gallman v. Berryhill, No. 9:16-2332-PMD-BM, 2017 WL 2257418, at *4 (D.S.C. May. 5, 2017), adopted by 2017 WL 2225133 (D.S.C. May 22, 2017); Christopherson v. Colvin, No. 6:15-4725-JMC-KFM, 2016 WL 7223283, at *9 (D.S.C. Nov. 18, 2016), adopted by 2016 WL 7212785 (D.S.C. Dec. 13, 2016)).
Recently, the Fourth Circuit considered restrictions similar to the limitation to simple and routine tasks found in Plaintiff's RFC and found an apparent conflict between those restrictions and a GED reasoning level of three. See Keller v. Berryhill, 754 F. App'x 193 (4th Cir. 2018) (finding a limitation to short and simple instructions appears inconsistent with jobs that require a GED reasoning development level of three). The Fourth Circuit acknowledged "[s]everal other courts of appeals have relied on precedent addressing a simple tasks limitation when considering a simple instructions limitation," and it concluded it was appropriate to do the same in that case. Id. at n.4. In doing so, the Fourth Circuit stated "it seems that such a limitation falls somewhere between Levels 1 and 2." Id. at 197-98. Therefore, the cashier and charge-account clerk positions, which require a GED reasoning level of three, posed an apparent conflict with Plaintiff's RFC limitation to simple and routine tasks.
More recently, the Fourth Circuit evaluated an RFC that provided the plaintiff was "able to follow short, simple instructions and perform routine tasks, but no work requiring a production rate or demand pace . . . [and] must avoid work involving crisis situations, complex decision making, or constant changes in a routine setting." Thomas v. Berryhill, 916 F.3d 307 (4th Cir. 2019), as amended (Feb. 22, 2019). In that case, all three jobs provided by the VE required a GED reasoning level of two, and the Fourth Circuit found the ALJ erred in two respects: she "did not sufficiently explain her conclusions regarding [the plaintiff's] mental impairments," such as what the terms production rate or demand pace meant, and "did not identify or resolve an apparent conflict between the DOT and the testimony of the VE." Id. The Fourth Circuit held "while the ALJ stated that [the plaintiff] could not perform work 'requiring a production rate or demand pace,' she did not give us enough information to understand what those terms mean" and, combined with other missteps, the ALJ's RFC evaluation frustrated the ability to conduct meaningful review. Id. at 311-13. In addition, the Fourth Circuit held there was an "'apparent conflict' between a limitation to 'short, simple instructions' . . . and a need to carry out 'detailed but uninvolved . . . instructions' (as found in jobs requiring Level 2 reasoning)." Id. at 312-14 (noting it was "not a categorical rule—some instructions, particularly if they are well-drafted, may be simultaneously short, simple, detailed, and uninvolved," but the conflict was as apparent as that in Pearson and the ALJ should have resolved it).
In this case, the ALJ limited Plaintiff's RFC to "perform simple, routine tasks with no fast-paced production work." Tr. at 24. Under the recent guidance of the Fourth Circuit and prior decisions by this court, these RFC limitations support Plaintiff was likely limited to a GED reasoning level of one, requiring the application of "commonsense understanding to carry out simple one- or two-step instructions" and dealing "with standardized situations with occasional or no variables in or from these situations," instead of the next GED reasoning level that requires the ability "to carry out detailed but uninvolved written or oral instructions" and "[d]eal with problems involving a few concrete variables in or from standardized situations." See DOT, App'x C ("Components of the Definition Trailer"), § III G.E.D., 1991 WL 688702. Therefore, the cutter-and-paster or administrative support position, which requires a GED reasoning level of two, posed an apparent conflict with Plaintiff's RFC limitation to simple and routine tasks.
Moreover, these RFC limitations go beyond "simple, routine tasks," and include the limitation of "no fast-paced production work." Tr. at 24. Although the ALJ requested the VE notify him if his testimony was inconsistent with the DOT, see Tr. at 660, he did not take the necessary step to independently identify and resolve the apparent conflict between Plaintiff's RFC and her ability to meet the demands of the cashier, charge-account clerk, and cutter-and-paster (administrative support) positions. See Pearson, 810 F.3d at 208-10. See Pearson, 810 F.3d at 208-10. "Recall that at this step, the burden shifts to the Commissioner to prove, by a preponderance of the evidence, that the claimant is capable of doing other work that exists in significant supply in the national economy." Thomas, 916 F.3d at 313 (citing Mascio v. Colvin, 780 F.3d 632, 635 (4th Cir. 2015)). Accordingly, the undersigned recommends the Commissioner failed to meet her burden at step five.
The Commissioner's argument that no apparent conflict existed because the ALJ did not need to limit Plaintiff to simple, routine tasks with no fast-paced production work is unavailing and ignores that the ALJ had the responsibility to determine Plaintiff's RFC and found this limitation was warranted. See, e.g., 20 C.F.R. § 404.1546 ("If your case is at the administrative law judge hearing level . . . the administrative law judge is responsible for assessing your residual functional capacity."); see also Tr. at 24 (providing the ALJ's findings regarding Plaintiff's RFC). Likewise, the Commissioner's argument that a majority of courts in the Fourth Circuit agree no conflict exists focuses upon decisions outside this district and is further undermined by the Fourth Circuit's recent decisions in Keller and Thomas, which she did not recognize.
Whether any error can be excused as harmless was recently discussed in Keller, 754 F. App'x at 199. The Fourth Circuit acknowledged some "circuits have applied harmless error analysis when an ALJ has relied on VE testimony that conflicts with the DOT." Id. (citations omitted). However, the Fourth Circuit stated,
As a general proposition, we apply the harmless error doctrine in reviewing a decision of the Commissioner denying a benefits claim. See Patterson v. Comm'r of Soc. Sec. Admin., 846 F.3d 656, 658 (4th Cir. 2017). We will not affirm for harmless error, however, "[w]here an insufficient record precludes a determination that substantial evidence support[s] the ALJ's denial of benefits." Id. And, in Pearson, we announced that the administrative record is insufficient when it contains an unresolved conflict between a VE's testimony and the DOT. See 810 F.3d at 210.Id. The Fourth Circuit continued "[n]evertheless—assuming that the harmless error doctrine applies in these circumstances—we are yet satisfied that a remand is required," as any harmless error argument was waived and "notwithstanding the Commissioner's waiver, we are unable to conclude that the ALJ's error is harmless" because "the administrative record does not clearly demonstrate that [the plaintiff] can actually perform the occupations identified by the VE and relied on by the ALJ at the fifth step." Id. (citations omitted).
Here, the Commissioner argues Plaintiff has a high school education and previously demonstrated an ability to perform semi-skilled work, but this argument is unavailing. [ECF No. 19 at 24-25]. Due to Plaintiff's current impairments, the ALJ imposed restrictions that included limitations to "perform simple, routine tasks with no fast-paced production work." Tr. at 24. The VE testified, and the ALJ found, Plaintiff would be unable to perform her PRW. Tr. at 27, 661. Plaintiff's current impairments or limitations needed to be reconciled with the DOT. This court recently noted,
The Commissioner fails to recognize the GED is composed of three divisions: reasoning, mathematical, and language development. See DOT, App. C., 1991 WL 688702. The definition specifies, "[t]he description of the various levels of language and mathematical development are based on the curricula taught in schools throughout the United States," but it does not provide the same explanation for reasoning. Id.
While it is undoubtedly true that some persons limited to 'simple, routine, repetitive tasks' may have a reasoning capacity greater than [the GED reasoning level of one], it is also true that many do not. Issues such as cognitive limitations, severe depression, memory disorders, and the secondary effects of severe pain may both limit claimants to simple tasks and to comprehending only simple instructions. Since these two factors have considerable overlap, it is necessary for the ALJ to identify the apparent conflict where the claimant is limited to simple, routine and repetitive tasks and the [VE] offers positions Level Two or higher. The [VE] must address whether the claimant has the capacity to perform jobs at that reasoning level.
This is not the first time where this issue has arisen in the Fourth Circuit or in the District of South Carolina. The majority view is that SSR 00-04p mandates that the ALJ identify the conflict and have the [VE] address the issue. See, Keller v. Berryhill, 2018 WL 6264813 (4th Cir. 2018); Henderson v. Colvin, 643 Fed. Appx. 273, 276-78 (4th Cir. 2016); Mathis v. Berryhill, No. CV 6:17-2242-TLW-KFM, 2018 WL 7099004 (D.S.C. Nov. 28, 2018), report and recommendation adopted, No. 6:17-CV-02242-TLW, 2019 WL 283643 (D.S.C. Jan. 22, 2019). Consequently, this matter must be reversed and remanded to the agency to comply with the requirements of SSR 00-04p.Abstance v. Berryhill, 2019 WL 669799, at *3 (D.S.C. Feb. 19, 2019). Therefore, the undersigned recommends the court find that it is unable to determine substantial evidence supports the ALJ's reliance on the VE's testimony to meet her burden at the fifth step and remand this case.
2. Plaintiff's Subjective Allegations
Plaintiff argues the ALJ failed to evaluate Plaintiff's symptoms in accordance with SSR 16-3p and, in doing so, incorrectly concluded "her pain responded well to the use of medications, physical therapy, and steroid injections." [ECF No. 16 at 18-21]; Tr. at 26.
The Commissioner counters the ALJ reasonably evaluated Plaintiff's subjective complaints by pointing to the objective evidence, her ADLs, and self-reports of improvement. [ECF No. 19 at 15-18].
"Under the regulations implementing the Social Security Act, an ALJ follows a two-step analysis when considering a claimant's subjective statements about impairments and symptoms." Lewis v. Berryhill, 858 F.3d 858, 865-66 (4th Cir. 2017) (citing 20 C.F.R. §§ 404.1529(b)-(c), 416.929(b)-(c)). "First, the ALJ looks for objective medical evidence showing a condition that could reasonably produce the alleged symptoms." Id. at 866 (citing 20 C.F.R. §§ 404.1529(b), 416.929(b)). "Second, the ALJ must evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's ability to perform basic work activities." Id. (citing 20 C.F.R. §§ 404.1529(c), 416.929(c)). The second determination requires the ALJ to consider "whether there are any inconsistencies in the evidence and the extent to which there are any conflicts between [the plaintiff's] statements and the rest of the evidence, including [her] history, the signs and laboratory findings, and statements by [her] treating or nontreating source[s] or other persons about how [her] symptoms affect [her]." 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4).
The ALJ is not to "evaluate an individual's symptoms based solely on objective medical evidence unless that objective medical evidence supports a finding that the individual is disabled." SSR 16-3p, 2016 WL 1119029, (superseding SSR 96-7p for all decisions issued on or after March 28, 2016, as noted in the Federal Register); 82 Fed. Reg. 49462 n.27, 2017 WL 4790249 (explaining "we are eliminating the use of the term 'credibility' from our sub- regulatory policy, as our regulations do not use this term"). "Because symptoms sometimes suggest a greater severity of impairment than can be shown by objective medical evidence alone," the ALJ is to "carefully consider any other information" about the claimant's symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3).
See Bright v. Comm'r, No. 6:17-1431-CMC-KFM, 2018 WL 4658494, at *10 n.4 (D.S.C. Sept. 5, 2018), adopted by Bright v. Comm'r, No. 6:17-1431-CMC, 2018 WL 5863373 (D.S.C. Nov. 8, 2018) ("[T]he methodology required by both SSR 16-3p and SSR 96-7, are quite similar. Under either, the ALJ is required to consider [the claimant's] report of his own symptoms against the backdrop of the entire case record." (internal quotations and citations omitted)).
In evaluating the non-objective evidence, the ALJ is to consider the claimant's "statements about the intensity, persistence, and limiting effects of symptoms" and should "evaluate whether the statements are consistent with objective medical evidence and other evidence." SSR 16-3p, 2017 WL 4790249 (instructing adjudicators "to consider all of the evidence in an individual's record when they evaluate the intensity and persistence of symptoms after they find that the individual has a medically determinable impairment(s) that could reasonably be expected to produce those symptoms"). "Other evidence that we will consider includes statements from the individual, medical sources, and any other sources that might have information about the individual's symptoms, including agency personnel, as well as the factors set forth in our regulations." Id.; see also 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) (listing factors to consider, such as ADLs; the location, duration, frequency, and intensity of pain or other symptoms; factors that precipitate and aggravate the symptoms; treatment an individual receives or has received for relief of pain or other symptoms; any measures other than treatment an individual uses or has used to relieve pain or other symptoms; and any other factors concerning an individual's functional limitations and restrictions due to pain or other symptoms).
While assessing the RFC, the ALJ also considered Plaintiff's testimony:
At the hearing, [Plaintiff] testified that she was involved in a work-related accident while driving a bus, which resulted in a pinched nerve and muscle spasms in her low back. She denied having any head trauma or fractures. [Plaintiff] stated that she underwent physical therapy and medication management. She indicated that her medication eases the pain, but does not stop it. [Plaintiff] also testified that her pain is aggravated by standing and walking, which she can do for 20-30 minutes before having to rest. She stated that she has to lie down for 5-6 hours to relieve her pain. She also stated that she can lift 5 pounds, but that 10 pounds causes sharp pain, as does kneeling, stopping, and crawling. [Plaintiff] further indicated that she could not sit down for 8 hours even with breaks. She stated that she has depression and her mind wanders at times. She stated that she cannot focus to watch a television show, despite taking medication. [Plaintiff] reported that her two grandchildren, who are in school live with her. She indicated that no one helps her with the household chores. She indicated that her medications make her sleepy.Tr. at 24. The ALJ found Plaintiff's medically-determinable impairments could reasonably be expected to cause some of her alleged symptoms, but determined her statements "concerning the intensity, persistence, and limiting effects" were "not entirely consistent with the medical evidence and other evidence in the record." Tr. at 26.
In making his determination, the ALJ focused upon the objective evidence. Id. (noting he gave little or limited weight to Plaintiff's testimony regarding her limitations because "it [wa]s inconsistent with her mild findings upon physical examination and imaging" or not "supported by her mental status exams"). However, "subjective evidence of pain intensity cannot be discounted solely based on objective medical findings." Lewis v. Berryhill, 858 F.3d 858, 866 (4th Cir. 2017) (citing 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2)).
In Lewis, the Fourth Circuit addressed a plaintiff's argument that "the ALJ failed to satisfactorily explain his decision not to credit her subjective complaints of chronic, non-exertional pain in her upper left extremity." 858 F.3d at 865. The Fourth Circuit noted, "[d]isputes over the role of subjective evidence in proving pain are nothing new" and "[t]his circuit has battled the [Commissioner] for many years over how to evaluate a disability claimant's subjective complaints of pain." Id. The Fourth Circuit reiterated, "[a]ccording to the regulations, the ALJ 'will not reject your statements about the intensity and persistence of your pain or other symptoms or about the effect your symptoms have on your ability to work solely because the available objective medical evidence does not substantiate your statements.'" Id. at 866 (quoting 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2)). Thus, the Fourth Circuit concluded the plaintiff's subjective evidence of pain intensity could not be discounted solely based on objective medical findings, the ALJ improperly increased Plaintiff's burden of proof in doing so, and he "failed to explain in his decision what statements by [the plaintiff] undercut her subjective evidence of pain intensity as limiting her functional capacity." Id. (citing 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," including "a discussion of which evidence the ALJ found [consistent] and why, and specific application of the pertinent legal requirements to the record evidence."); see also 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2); SSR 96-8p, 1996 WL 374184, at *7 (explaining that the residual functional capacity "assessment must include a narrative discussion describing how the evidence supports each conclusion")).
The undersigned acknowledges the ALJ discussed treatment notes in the record within his decision, but, as Plaintiff asserts, the ALJ's conclusion that "[o]verall [Plaintiff's] pain responded well to the use of medications, physical therapy, and steroid injections" is belied by the record. Tr. at 26.
First, Plaintiff testified she took "a lot" of medications that helped "cover" her pain, but they did not stop it and caused her to be "doped up, drowsy, [and] sleeping" for more than two hours at a time. Tr. at 649-54, 659. The treatment notes reflect medication provided temporary relief and various adjustments were made to Plaintiff's medications. See, e.g., Tr. at 352-55, 415-16 (noting Plaintiff reported physical therapy had provided no relief and pain medication provided temporary relief in February 2014); 503-06 (noting Plaintiff was no longer able to afford certain medications in December 2014); 591-95 (showing Plaintiff's medications were being adjusted in March 2015). The ALJ noted Plaintiff reported "Cymbalta was helping her" in April 2015, but omits Plaintiff only stated it helped "somewhat with her pain" and Dr. Alexander doubled the dosage at the end of the visit. Compare Tr. at 25, with Tr. at 541-42.
Second, Plaintiff also testified physical therapy did not "make any difference." Tr. at 649. This testimony is confirmed by the treatment notes. See, e.g., Tr. at 419 (noting Plaintiff was discharged from physical therapy at Lowe's after eleven sessions because Plaintiff's pain was 8/10 and she had plateaued in her recovery in December 2013); 414 (noting Plaintiff was discharged from physical therapy at Palmetto Therapy due to financial reasons, but there was minimal change in her pain level after two sessions in March 2014); 462-64 (noting Plaintiff was discharged from physical therapy at Three Rivers after 34 sessions, but her pain still ranged between 6 to 8/10 and increased with any type of activity, including therapy, in September 2014). In addition, the ALJ noted Plaintiff was discharged from physical therapy in September 2014 after attending 34 sessions, but Plaintiff attended physical therapy at numerous facilities between November 2013 and September 2014 that resulted in approximately 50 sessions and was discharged due to inability to afford treatment and her failure to improve. Compare Tr. at 25, with Tr. at 414, 419, 462-64; see also Meyer v. Astrue, 662 F.3d 700, 707 n.3 (4th Cir. 2011) (instructing Commissioner to consider the effect of more than 170 physical therapy sessions during two and a half years on the plaintiff's ability to remain gainfully employed during the period of claimed disability).
Third, the numerous injections that Plaintiff received also did not provide significant relief. See, e.g., Tr. at 380-82 (noting Plaintiff reported continued pain after receiving steroid injections in December 2013); 384 (noting continued pain of 9/10 and an injection was administered in April 2014); 383 (same in May 2014); 439-41 (same in June 2014); 456-57, 482-83, 563-64 (noting continued pain of 8/10 in July 2014); 474-75, 554-55 (noting Plaintiff was "not eligible for any cervical or lumbar epidural steroid injections until December 2014"). Thus, the treatment records also undermine the ALJ's notation that Dr. Alexander discontinued Plaintiff's Valium "due to her good response to lumbosacral injections and physical therapy" by August 2014. Tr. at 25.
Likewise, the Commissioner's argument that inconsistency can be found in Plaintiff's ADLs and self-reports of improvement to medical providers is unavailing. [ECF No. 19 at 15-18 (noting Plaintiff took care of her two grandchildren, did not receive help with household chores, and reported improvement during treatment)]. For example, Plaintiff testified her grandchildren were in school during the day or remained in the room when she slept, she received assistance from her father's wife, and she did not always perform household chores, for which the apartment manager had written her up after site checks because she lives in government housing. Tr. at 656-58; see also Tr. at 462 (noting Plaintiff's report to Three Rivers that her pain limited her ability to perform household chores).
In addition, the Commissioner's citations to Plaintiff's reports of improvement are misleading. See [ECF No. 19 at 17 (citing Tr. at 435 (providing May 2014 visit), 480 (same in August 2014), 469 (same in September 2014) for improvement)]. On May 29, 2014, Plaintiff reported "continued pain" after her last physical therapy session and the language quoted by the Commissioner stems from a previous visit notation that states, "[Plaintiff went to Carolinas [emergency room on] 12/14/13 for severe back pain, was so severe was not able to sleep. She was given oxycodone, Flexeril, and ibuprofen with improvement in pain. Has had good relief with th[i]s combination." Tr. at 435. Subsequently, Plaintiff returned for additional treatment due to pain throughout 2014. On August 11, 2014, Plaintiff reported her neck pain had improved and she did not have arm symptoms, but she still rated her neck pain as 6 to 7/10 and her back and leg pain as 8/10. Tr. at 480. On September 3, 2014, Plaintiff reported her neck pain was "not as bad," but her back and knee pain still ranged from 8 to 9/10. Tr. at 469.
Although this court must defer to the ALJ's findings of fact, the court is not required to "credit even those findings contradicted by undisputed evidence." Hines, 453 F.3d at 566 (citing Diaz v. Chater, 55 F.3d 300, 307 (7th Cir. 1995) ("An ALJ may not select and discuss only that evidence that favors his ultimate conclusion . . . .")). Thus, review of the ALJ's citations to the record, or the Commissioner's citations in support of the ALJ's decision, does not amount to reweighing the evidence as the Commissioner asserts, but upholds this court's duty to review the record. "An ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding. . . . In conclusion, we do not reflexively rubber-stamp an ALJ's findings." Lewis, 858 F.3d at 869-70. Therefore, the undersigned recommends the court find it is unable to determine whether substantial evidence supports the ALJ's decision and remand this case.
3. Additional Allegations of Error
Because the RFC assessment is to be based on all the relevant evidence in the case record (20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1)), and the undersigned recommends remand is warranted, Plaintiff's additional allegations of error are not discussed. III. Conclusion and Recommendation
In an effort of judicial efficiency, the undersigned notes a few items that the ALJ may wish to consider on remand. First, the ALJ stated he incorporated portions of Dr. Alexander's October 2015 opinion into the RFC, but this opinion is not in the record. Tr. at 27. Second, there appears to be a treatment note from Three Rivers that is provided multiple times, but one version recommends Plaintiff continue therapy and the others recommend she be discharged on September 8, 2014. Compare Tr. at 484, with Tr. at 462, 497. Third, Plaintiff's SSI application was not included in the record. Finally, the ALJ did not discuss the assigned GAF scores. See Tr. at 604-12 (assigning scores ranging from 48 to 57); see also Sizemore v. Berryhill, 878 F.3d 72, 82 (4th Cir. 2017) (citing Emrich v. Colvin, 90 F. Supp. 3d 480, 492 (M.D.N.C. 2015) (quoting SSA Administrative Message 13066 (July 22, 2013) ("For purposes of the Social Security disability programs, when it comes from an acceptable medical source, a GAF rating is a medical opinion as defined in 20 CFR §§ 404.1527(a)(2) and 416.927(a)(2)."). The Fourth Circuit has "held that '[a] necessary predicate to engaging in substantial evidence review is a record of the basis for the ALJ's ruling,' including 'a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence.'" Monroe, 826 F.3d 176, 189 (quoting Radford, 734 F.3d at 295). "[R]emand may be appropriate . . . where other inadequacies in the ALJ's analysis frustrate meaningful review." Mascio, 780 F.3d at 636; see Patterson, 846 F.3d at 658-663 ("Where an insufficient record precludes a determination that substantial evidence supported the ALJ's denial of benefits, this court may not affirm for harmless error. . . .").
The court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported as a matter of fact and law. Based on the foregoing, the court cannot determine that the Commissioner's decision is supported by substantial evidence. Therefore, the undersigned recommends, pursuant to the power of the court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in Social Security actions under sentence four of 42 U.S.C. § 405(g), that this matter be reversed and remanded for further administrative proceedings.
IT IS SO RECOMMENDED. April 29, 2019
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
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
901 Richland Street
Columbia, South Carolina 29201
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).