Opinion
C/A No. 2:18-cv-01197-MGL-MGB
07-02-2019
TRACY DENISE CHANEY, Plaintiff, v. ANDREW SAUL, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
This case is before the Court for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., concerning the disposition of Social Security cases in this District, and Title 28, United States Code, Section 636(b)(1)(B). Plaintiff Tracy Denise Chaney ("Plaintiff") brought this action pursuant to Section 205(g) of the Social Security Act, as amended, (42 U.S.C. § 405(g)), to obtain judicial review of a final decision of the Commissioner of Social Security Administration (the "Administration") regarding her claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act (the "Act"). For the reasons set forth below, the undersigned recommends that this matter be remanded for further consideration and analysis by the Commissioner.
RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS
Plaintiff was 47 years old on her alleged disability onset date of June 17, 2013. (R. at 28, 279; Dkt. No. 11 at 2.) Plaintiff alleged disability due to, inter alia, panic attacks, anxiety, and depression; arthritis in both shoulders and hips; spasms of the esophagus and stomach; acid reflux; gastritis; pancreatitis; L3-4 lateral recess narrowing; compression of the exiting nerve roots bilaterally at L5-S1; disc material abutting exiting nerve root on the left at L4-5; mild facet hypertrophy at L2-3-4-5; and mild facet disease at L5-S1. (R. at 84, 99.) Plaintiff has past relevant work as a creeler, weaver, collection agent, and loan clerk. (Id. at 36, 70-75.)
Plaintiff filed applications for DIB and SSI on October 21, 2014. (Id. at 28; Dkt. No 11 at 2.) Her application was denied initially on April 3, 2015, and on reconsideration on May 28, 2015. (R. at 163, 181.) After a hearing before the Administrative Law Judge ("ALJ") on April 25, 2017, (id. at 46-83), the ALJ issued a decision on June 5, 2017, in which the ALJ found that Plaintiff was not disabled (id. at 28-38). The Appeals Council denied Plaintiff's request for review, (id. at 1-5), making the ALJ's decision the Commissioner's final decision for purposes of judicial review.
There appears to be a discrepancy in the record before the Court as to the actual date on which Plaintiff submitted her applications. While the ALJ and Plaintiff cite October 21, 2014, as the submission date (R. at 28; Dkt. No. 11 at 2), the Commissioner cites November 3, 2014, as the submission date (Dkt. No. 12 at 2). Documents in the record reflect several possible dates. (See R. at 163 and 181 for October 21, 2014, and R. at 288 and 293 for November 3, 2014.) The minor discrepancy between these two submission dates is not a material issue and should not affect the outcome of the instant case. For purposes of this Report and Recommendation only, however, the undersigned adopts the ALJ's and Plaintiff's proposed date of October 21, 2014.
In making the determination that Plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the decision:
(1) The claimant meets the insured status requirements of the Social Security Act through March 31, 2018.
(2) The claimant has not engaged in substantial gainful activity since June 17, 2013, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
(3) The claimant has the following severe impairments: lumbar spine disorder, bilateral hallux valgus deformity, depression, and anxiety (20 CFR 404.1520(c) and 416.920(c)).
(4) The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
(5) After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except she can never climb ladders, ropes or scaffolds; she can occasionally climb ramps or stairs; she can frequently balance; she can occasionally crouch, kneel, or crawl; work is limited to simple, routine, and repetitive tasks; she can perform these tasks for two hour blocks of time with normal rest breaks during an eight hour work day; and she can have occasional interaction with coworkers and the general public.(Id. at 28-38.)
(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 11, 1966 and was 47 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date. The claimant subsequently changed age category to closely approaching advanced age (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 June 17, 2013, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a "disability." 42 U.S.C. § 423(a). The Act also provides that SSI disability benefits shall be available for aged, blind, or disabled persons who have income and resources below a specific amount. See 42 U.S.C. § 1381 et seq. "Disability" is defined in the Act as the inability to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than" twelve months. See 42 U.S.C. § 423(d)(1)(A) (DIB context); 42 U.S.C. § 1382(a)(3)(A) (SSI context).
"[T]he definition of disability is the same under both DIB and SSI. . . ." Manson v. Colvin, No. 9:12-cv-1157-TLW-BM, 2013 WL 4042188, at *2 n.2 (D.S.C. Aug. 8, 2013) (citing Emberlin v. Astrue, No. 06-cv-4136, 2008 WL 565185, at *1 n.3 (D.S.C. Feb. 29, 2008)).
To facilitate a uniform and efficient processing of disability claims, the Act has by regulation reduced the statutory definition of "disability" to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment which equals an illness contained in the Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents her from doing substantial gainful employment. See 20 C.F.R. § 404.1520 (DIB context); 20 C.F.R. § 416.920 (SSI context). If an individual is found not disabled at any step, further inquiry is unnecessary. See 20 C.F.R. § 404.1520(a)(4) (DIB context); 20 C.F.R. § 416.920(a)(4) (SSI context); see also Hall v. Harris, 658 F.2d 260 (4th Cir. 1981).
The claimant bears the burden of proof with respect to the first four steps of the analysis. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). Once the claimant has established an inability to return to her past relevant work, the burden shifts to the Commissioner to show that the claimant—considering her age, education, work experience, and residual functional capacity—can perform alternative jobs and that such jobs exist in the national economy. See SSR 82-62, 1982 WL 31386, at *3; Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); see also Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016). The Commissioner may satisfy this burden by obtaining testimony from a vocational expert. See Grant, 699 F.2d at 191-92.
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the findings of the Commissioner "are supported by substantial evidence and whether the correct law was applied." Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); see also Woods v. Berryhill, 888 F.3d 686, 691 (4th Cir. 2018); Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015); 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). Consequently, the Act precludes a de novo review of the evidence and requires that the court uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing 42 U.S.C. § 405(g) and Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)); see also Mascio, 780 F.3d at 640; Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012).
Substantial evidence is "more than a mere scintilla of evidence but may be less than a preponderance." Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015) (citing Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012)). "In reviewing for substantial evidence, [the court does] not undertake to reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ]." Hancock, 667 F.3d at 472. "Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ]," not on the reviewing court. Id. However, "[a] factual finding by the ALJ is not binding if it was reached by means of an improper standard or misapplication of the law." Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).
DISCUSSION
Plaintiff contends that the ALJ erred in failing to properly evaluate several aspects of her disability claim. First, Plaintiff argues that the ALJ committed reversible error by failing to properly apply the requirements of Listing 1.04 when evaluating Plaintiff's impairments at Step Three of the sequential analysis. (Dkt. No. 11 at 7-9.) More specifically, Plaintiff claims that the ALJ failed to acknowledge record evidence that shows Plaintiff met the criteria under Paragraph A of Listing 1.04 and was therefore disabled. (Id. at 8.) Next, Plaintiff claims that the ALJ erred by failing to properly weigh the medical opinions of the State's consultative examiners, Dr. Susan J. Tankersley, M.D. and Dr. Larry R. Korn, D.O. (Id. at 9-12.) Third, although Plaintiff contends that her impairments met Listing 1.04, she argues in the alternative that the ALJ committed reversible error because his residual function capacity assessment ("RFC") failed to account for each of Plaintiff's medical impairments and did not provide any restrictions in relation to her hallux valgus deformities and bunions. (Id. at 13.) Finally, Plaintiff claims that the Appeals Council failed to properly account for Plaintiff's moderate limitations in concentration, persistence, and pace in the RFC. (Id. at 14-17.)
Upon review of the parties' arguments, the decision, and the record as a whole, the undersigned finds that there is adequate evidence in the record to suggest that Plaintiff may qualify as "disabled" under Listing 1.04(A). However, the ALJ's failure at Step Three to sufficiently consider and discuss the listing criteria in relation to the record evidence of Plaintiff's impairments precludes the Court from determining whether the ALJ's decision is supported by substantial evidence. The ALJ's cursory rejection of Dr. Tankersley's and Dr. Korn's opinions regarding Plaintiff's physical limitations further frustrates the Court's meaningful review and, thus, as set forth in greater detail below, the undersigned recommends that this matter be remanded for further consideration and analysis by the Commissioner.
I. ALJ's Failure to Properly Consider and Discuss Whether Plaintiff Meets the Criteria Under Listing 1.04(A)
When a claimant's impairment or combination of impairments meets or equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1, the claimant is deemed disabled and no further analysis is required. See 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). To determine whether a claimant's impairments meet or equal a listed impairment at Step Three of the sequential analysis, the ALJ must identify the relevant listed impairments and compare the listing criteria with the evidence of the claimant's symptoms. See Peck v. Colvin, No. 8:12-CV-02594-DCN, 2014 WL 994925, at *12 (D.S.C. Mar. 13, 2014) (stating that without identifying the relevant listings and comparing the claimant's symptoms to the listing criteria, it is simply impossible to tell whether there was substantial evidence to support the determination). "In cases where there is 'ample factual support in the record' for a particular listing, the ALJ must provide a full analysis to determine whether the claimant's impairment meets or equals the listing." See id. (citing Cook v. Heckler, 783 F.2d 1168, 1172 (4th Cir. 1986)).
Listing 1.04 of the Administration's Listing of Impairments addresses specific disorders of the spine (e.g., herniated nucleus pulposus, spinal stenosis, degenerative disc disease, facet arthritis, etc.), resulting in compromise of a nerve root or the spinal cord. 20 C.F.R. Pt. 404, Subpt. P, App'x. 1, § 1.04. A claimant with a spinal impairment may qualify as "disabled" under Listing 1.04 if there is:
A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or
reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine); orSee Peck, 2014 WL 994925, at *3 (citing 20 C.F.R. Pt. 404, Subpt. P, App'x 1, § 104).
B. Spinal arachnoiditis, confirmed by an operative note or pathology report of tissue biopsy, or by appropriate medically acceptable imaging, manifested by severe burning or painful dysesthesia, resulting in the need for changes in position or posture more than once every 2 hours; or
C. Lumbar spinal stenosis resulting in pseudoclaudication, established by findings on appropriate medically acceptable imaging, manifested by chronic nonradicular pain and weakness, and resulting in inability to ambulate effectively, as defined in 1.00B2b.
In the instant case, the ALJ makes the sweeping conclusion that Plaintiff does not satisfy the requirements of Listing 1.04 because,
[a]lthough an MRI shows evidence of nerve root impingement, there is no evidence of positive straight leg raising. Additionally, Dr. Korn's report documents that she ambulates without an assistive device and has normal gait. Furthermore, Dr. Korn found no evidence of atrophy or sensory loss.(R. at 32.) Plaintiff contends that the ALJ's abbreviated analysis of Listing 1.04 as applied to her impairments is reversible error because the medical evidence of record shows that Plaintiff satisfies each element under Paragraph A. Plaintiff further claims that the ALJ failed to differentiate between the specific requirements under Paragraphs A, B, and C and, as a result, imposed the wrong criteria in determining that Plaintiff's impairments do not satisfy the requirements of Paragraph A. Moreover, Plaintiff alleges that the ALJ's explanation directly contradicts the medical evidence of record. (Dkt. No. 11 at 7-9.) The undersigned agrees.
At the outset, the ALJ's decision does not expressly compare the specific criteria under each paragraph of Listing 1.04 to the record evidence of Plaintiff's impairments. Specifically, the ALJ's brief explanation seems to conflate the requirements under Paragraphs A and C, making it difficult for the Court to determine how the ALJ arrived at his conclusion that Plaintiff does not meet the criteria under Paragraph A. "Without such a discussion, the Court is unable to determine whether the ALJ's decision at Step Three of the sequential analysis is supported by substantial evidence." Peck, 2014 WL 994925, at *13.
For example, while ambulation without an assistive device may rule out a disability under Paragraph C, Paragraph A does not require that the claimant show an inability to ambulate effectively in order to establish disability. See Peck, 2014 WL 994925, at *13 (finding that while plaintiff's ability to ambulate demonstrated that she did not satisfy the criteria under Listing 1.04(C), the same criteria did not apply to the analysis under Listing 1.04(A)).
Furthermore, the undersigned finds that the ALJ's explanation includes several misleading statements regarding the evidence of record. For example, the ALJ asserts that "there is no evidence of positive straight leg raising." (R. at 32.) However, Dr. Tankersley's examination on March 20, 2014, did in fact show positive straight-leg raises "both sitting and supine." (Id. at 510.) Additionally, while the ALJ asserts that Dr. Korn described Plaintiff's gait as normal and found no sensory loss, Dr. Tankersley's examination found that Plaintiff's gait was "antalgic," and that Plaintiff had "paresthesias to touch in both hands," along with possible radiculopathy. (Id. at 509-10; Dkt. No. 11 at 9 n.1.) See Peck, 2014 WL 994925, at *13 (referencing Hays v. Sullivan, 907 F.2d 1453, 1456 (1990), stating that "[i]t is the duty of the ALJ to resolve conflicts in the evidence of record" and, without a discussion of the conflicting evidence, it is difficult for the reviewing court to track the ALJ's reasoning).
Defendant suggests that the ALJ's misstatement regarding Dr. Tankersley's examination is harmless error because Plaintiff presented a negative straight-leg raise during Dr. Korn's examination on March 9, 2015. (Dkt. No. 12 at 13 n.1.) The fact that Plaintiff presented a negative straight-leg raise almost one year after her examination with Dr. Tankersley does not necessarily mean that Plaintiff fails to meet the listing criteria under Paragraph A for the entire applicable time period. In deciding whether a claimant's impairments meet Listing 1.04(A), the claimant need not demonstrate that all of the medical criteria under Paragraph A appear simultaneously or in close proximity. Rather, the court must engage in "a more free-form, contextual inquiry" and determine whether the evidence shows that all of the medical criteria in Paragraph A are present within a continuous twelve-month period. See Radford v. Colvin, 734 F.3d 288, 293-94 (4th Cir. 2013) (finding that the law does not require the claimant to produce medical examinations showing that all of the symptoms under Listing 1.04(A) present simultaneously or in close proximity in order to satisfy Listing 1.04(A)).
Although the ALJ afforded little weight to Dr. Tankersley's overall opinion regarding the scope of Plaintiff's limitations, he did not reject, or otherwise mention, the veracity of her physical examination of Plaintiff. Indeed, the ALJ made such a distinction with respect to Dr. Korn, accepting his examination results but disagreeing with the conclusion derived therefrom. (R. at 36.) (See infra p. 13-14.)
Most notably, the ALJ's decision fails to consider and discuss the weight assigned to the evidence of record that reflects a possible disability under Paragraph A. As Plaintiff correctly notes, the ALJ provides little explanation, if any, as to why the following evidence is insufficient to satisfy the listing criteria under 1.04(A): with respect to nerve root compression, an MRI from June 2013 showing disc bulges at L3-4 through L5-S1, with disc material abutting the exiting nerve roots on the left at L4-5 and compression of the exiting nerve roots bilaterally at L5-S1 (Dkt. No. 11 at 8; Dkt. No. 13 at 3; R. at 477-78); with respect to limitation of spinal motion, examination notes by Dr. Tankersley and Dr. Korn from 2014 and 2015 respectively, indicating decreased range of motion in the lumbar spine, cervical spine, and thoracic spine (Dkt. No. 11 at 8; Dkt. No. 13 at 3; R. at 510, 540); with respect to muscle weakness accompanied by sensory loss, examination notes by Dr. Tankersley from June 2014, indicating reduced 4-/5 strength and paresthesias to touch on the left leg (Dkt. No. 11 at 9; Dkt. No. 13 at 3; R. 510); and with respect to the lower back, a positive straight-leg raise documented by Dr. Tankersley in June 2014 (Dkt. No. 11 at 9; Dkt. No 13 at 3; R. at 510).
In addition to the examples cited by Plaintiff, the undersigned finds that the ALJ also failed to sufficiently discuss the following evidence of a possible disability under Listing 1.04(A): Plaintiff's testimony that her back pain radiated into her lower extremities and that she could not reach above or to the side without causing back spasms (R. at 63-65); an x-ray from June 2013 indicating mild disc height loss at L5-S1 (id. at 485); examination notes from June 2013 showing paraspinal muscle spasms bilaterally and continued back pain (id. at 479, 485, 526); examination notes by Dr. Tankersley from March 2014 showing an unsteady gait and tenderness over the lumbar and cervical spine (id. at 509-10); a diagnosis of degenerative disc disease of the lumbar spine with chronic pain and probable left radiculopathy (id. at 511); a diagnosis of chronic back pain with abnormal spinal curve/scoliosis (id. at 542); Dr. Tankersley's opinion that Plaintiff should be limited to sedentary work, at most (id. at 511); and Dr. Korn's opinion that prolonged ambulation, bending, leaning, and stooping may cause discomfort and be difficult for Plaintiff (id. at 542).
See, e.g., Peck, 2014 WL 994925, at *13 (noting nerve root compression in form of radiculopathy, pain of spine, and limited spine motion as evidence of possible disability under Listing 1.04(A)); Craig v. Colvin, No. 2:14-CV-0254-DCN, 2015 WL 1883500, at *5 (D.S.C. Apr. 24, 2015) (noting muscle weakness in extremity as evidence of possible disability under Listing 1.04(A)); Holback v. Colvin, No. 9:12-CV-2989-RMG, 2013 WL 6834603, at *5 (D.S.C. Dec. 23, 2013) (noting degenerative disc diagnosis, spinal stenosis, impingement, and chronic pain as evidence of possible disability under Listing 1.04(A)); Watson v. Comm'r of Soc. Sec. Admin., No. 8:14-CV-01310-TLW, 2015 WL 4192612, at *16 (D.S.C. July 9, 2015) (noting impingement of S1 nerve root, bilateral S1 radiculopathy, and limited range of motion in spine as evidence of possible disability under Listing 1.04(A)).
The ALJ's evaluation of Listing 1.04(A) is also flawed in that it fails to consider the impact of Plaintiff's spinal impairment in combination with evidence of her other severe impairments. Indeed,
even where a claimant does not meet each of the requirements for a listing, an applicant with multiple impairments may satisfy the requirements of a Listing where the claimant's other impairments are in combination the medical equivalent of the criteria of the listed impairment. Thus, although a claimant's impairment, standing alone, may not satisfy a Listing, the combined effect of multiple impairments may meet the requirements for a Listing. . . . The Fourth Circuit has been particularly concerned with the Commissioner's denial of disability by "fragmentizing" multiple impairments, rather than considering and explaining the combined effects [of] such impairments.See Holback v. Colvin, No. 9:12-CV-2989-RMG, 2013 WL 6834603, at *5 (D.S.C. Dec. 23, 2013) (referencing Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989)).
In the instant case, the ALJ determined that in addition to Plaintiff's spine disorder, Plaintiff's hallux valgus deformity also constitutes a severe physical impairment. (R. at 30.) Indeed, the record is replete with evidence that Plaintiff's foot impairment causes her significant pain, prevents her from bearing weight on the medial left foot, and would likely worsen with prolonged ambulation. (Id. at 508, 510 542.) Despite this evidence, however, the ALJ's decision does not expressly consider Plaintiff's lumbar spine disorder in combination with her hallux valgus deformity at Step Three of the sequential analysis. By failing to assess the combined effects of Plaintiff's multiple impairments, the undersigned finds that the ALJ created "the type of fragmentized consideration explicitly prohibited by the Fourth Circuit" and further impeded the Court's ability to undertake a meaningful review. See Holback, 2013 WL 6834603, at *5 (remanding case where ALJ's 1.04 Listing analysis did not consider effects of the plaintiff's chronic knee pain in combination with his spinal impairment).
See R. at 517-18 (showing an MRI of Plaintiff's left foot, which presented a hallux valgus deformity and additional valgus angulation of the second, third, and fourth rays, and an MRI of Plaintiff's right foot, which presented a hallux valgus deformity and bunion formation involving the metatarsophalangeal joint of the great toe); R. at 510 (showing examination results, including marked forefoot degenerative joint changes in both feet); R. at 511 (diagnosing Plaintiff with advanced degenerative joint disease of the forefoot with chronic foot pain); R. at 541 (observing hallux valgus on Plaintiff's left foot with moderate hypertrophy of the joint, and hallux valgus on Plaintiff's right foot with mild to moderate hypertrophy on the 1st MTP joint).
While the ALJ acknowledges some of the above-referenced evidence in the discussion of his RFC assessment, the Court finds that the ALJ fails to offer any explanation as to how this evidence informed any portion of his decision regarding Listing 1.04. See Watson v. Comm'r of Soc. Sec. Admin., No. 8:14-CV-01310-TLW, 2015 WL 4192612, at *16 (D.S.C. July 9, 2015) (noting that while it is within the purview of the ALJ to weigh the evidence, the ALJ must provide an explanation of how he came to his conclusion, otherwise proper judicial review may not occur). Accordingly, the ALJ did not sufficiently explain his conclusion that Plaintiff does not meet the criteria of Listing 1.04(A) and, consequently, the Court simply cannot conclude that the ALJ's Step Three determination is supported by substantial evidence. The undersigned therefore recommends that the ALJ's decision be remanded so that the ALJ may further consider and explain whether Plaintiff's impairments meet or equal Listing 1.04(A) by comparing the specific criteria under Paragraph A with the evidence of record discussed above.
Defendant argues that the evidence cited by Plaintiff does not satisfy the criteria under Paragraph A. (See Dkt. No. 12 at 14, asserting that Plaintiff's back impairment does not meet the requirements under Listing 1.04(A) because the medical records identified by Plaintiff do not show spinal cord compromise, atrophy with accompanying sensory loss, or significant deficit in motor function or range of motion). Notwithstanding the parties' opposing views regarding the sufficiency of the medical evidence, even if Defendant's analysis is correct, the ALJ did not provide a clear discussion of the criteria under Listing 1.04(A). Accordingly, Defendant's arguments are post-hoc rationalizations and cannot save the ALJ's decision from remand. See Amiker v. Colvin, No. 6:12-CV-2886, 2013 WL 6193331, at *9 (D.S.C. Nov. 26, 2013) ("[G]eneral principles of administrative law preclude the Commissioner's lawyers from advancing grounds in support of the agency's decision that were not given by the ALJ.") (internal citations omitted).
II. ALJ's Treatment of the State's Consultative Examiner Opinions
Although the ALJ's cursory assessment of Plaintiff's impairments under Listing 1.04 is sufficient to warrant remand, the ALJ's treatment of the State examiners' medical opinions is a related error that requires further explanation by the Commissioner. In order to properly evaluate the evidence of Plaintiff's impairments under the listing criteria of Paragraph A, the Commissioner must inevitably address the medical opinions of record, including those of State consultative examiners Dr. Tankersley and Dr. Korn.
Specifically, Dr. Tankersley found that Plaintiff suffers from advanced degenerative joint changes of the forefeet, chronic foot pain, chronic lower back pain, and left radiculopathy. (R. at 511.) Based on her examination results, Dr. Tankersley opined that it is her "general feeling . . . that [Plaintiff's] employment will be limited to the sedentary at best," and that "chronic pain may preclude even this." (Id.) Although Dr. Korn did not address whether Plaintiff's employment would be limited to sedentary tasks, he opined that Plaintiff's "back does appear capable of causing discomfort," and that her scoliosis combined with her upper body weight would likely cause her discomfort with prolonged bending, leaning, and stooping. (Id. at 542.) Dr. Korn also opined that Plaintiff would benefit from surgical repair of her bunions, as they would likely "cause her difficultly with prolonged ambulation." (Id.)
In weighing these opinions, the ALJ states as follows:
I give little weight to Dr. Tankersley's assessment (Exhibit 5F at 5). Her "general feeling" that the claimant is limited to sedentary work is not consistent with the claimant's lack of treatment nor Dr. Korn's findings of normal gait, no muscle atrophy and no sensory loss.
I give limited weight to Dr. Korn's assessment (Exhibit 11F at 4). As discussed above, Dr. Korn opined that the claimant would likely have discomfort with prolonged bending, leaning, and stooping type activities as well as prolonged ambulation (Exhibit 11F at 4). His opinion is vague, and he does not defined [sic] "prolonged." However, I give his examination findings great weight, as they are consistent with the claimant's lack of treatment.(Id. at 36.) The undersigned finds the ALJ's summary rejection of these medical opinions problematic for several reasons.
As a threshold matter, the record does not contain an opinion by a treating physician regarding Plaintiff's physical impairments. Accordingly, the ALJ must consider all the medical opinions of record in view of the factors in 20 C.F.R. §§ 404.1527(c) and 416.927(c). See Praylow v. Berryhill, No. CV 9:15-3557-TMC, 2017 WL 676580, at *4 (D.S.C. Feb. 21, 2017) (referencing SSR 96-2p and noting that, if the record does not contain an opinion from a treating physician, the ALJ must evaluate all other medical opinions pursuant to the factors in 20 C.F.R. §§ 404.1527(c) and 416.927(c)). Those factors include: (1) the examining relationship between the claimant and the medical provider; (2) the treatment relationship between the claimant and the medical provider, including the length of the treatment relationship and frequency of treatment and the nature and extent of the treatment relationship; (3) the supportability of the medical provider's opinion in his treatment records; (4) the consistency of the medical opinion with other evidence in the record; and (5) the specialization of the medical provider offering the opinion. See Praylow, at *4 (referencing 20 C.F.R. § 404.1527(c) and 416.927(c)).
Dr. Kenneth Wells, M.D. is Plaintiff's treating psychiatrist and provides an opinion regarding Plaintiff's mental condition only. (R. at 503-06.)
Although ALJs are not required "to expressly discuss each factor in 20 C.F.R. § 404.1527(c) and § 416.927(c), . . . their decisions should demonstrate that they considered and applied all the factors and accorded each opinion appropriate weight in light of the evidence of record." Nash v. Comm'r of Soc. Sec. Admin., No. 1:16-CV-2478-RBH-SVH, 2017 WL 1906965, at *10 (D.S.C. Apr. 27, 2017), adopted sub nom., 2017 WL 1836972 (D.S.C. May 8, 2017). In the instant case, the ALJ's cursory rejection of Dr. Tankersley's and Dr. Korn's opinions falls well-short of this requirement. Indeed, notwithstanding the fact that Dr. Tankersley's and Dr. Korn's opinions are the only medical opinions of record based on physical examination, the ALJ discounts their opinions without even mentioning the "examining relationship." See Amiker v. Colvin, No. CIV.A. 6:12- 2886, 2013 WL 6193331, at *13 (D.S.C. Nov. 26, 2013) (citing 20 C.F.R. §§ 404.1527(c)(1) and 416.927(c)(1) and noting that "generally, we give more weight to the opinion of a source who has examined you than to the opinion of a source who has not examined you"). The ALJ's perfunctory analysis also overlooks the general consistencies between the two opinions, in that both Dr. Tankersley and Dr. Korn suggest that the combination of Plaintiff's spine disorder and hallux valgus deformity result in pain and physical limitations. (R. at 511, 542.) See Wilson v. Colvin, No. 8:15-CV-04185-MGL-JDA, 2016 WL 6471904, at *14 (D.S.C. Oct. 19, 2016), adopted, 2016 WL 6433500 (D.S.C. Oct. 31, 2016) (finding remand appropriate where ALJ offered little explanation for his conclusions as to the expert's opinion and did not discuss any medical evidence that conflicted with the opinion).
Dr. Tankersley's and Dr. Korn's opinions are also fairly consistent with that of the State's initial consultant, who opined that Plaintiff is likely limited to a level of work "[b]etween light and sedentary." (R. at 95-96.)
Even more puzzling is the ALJ's decision to give "great weight" to Dr. Korn's examination findings, but little weight to the medical opinion he derived therefrom. (R. at 36.) Although the ALJ may give little weight to the non-medical opinions of the State's consultative examiners on the ultimate issue of disability, the ALJ cannot "simply disregard uncontradicted expert opinions in favor of his own opinion on a subject he is not qualified to render." Wilson, 2016 WL 6471904, at *14. Indeed, by suggesting that Dr. Korn reached the wrong medical conclusion based on his own examination findings, the ALJ improperly substituted his own opinion for that of the expert. See Sheppard v. Colvin, No. 5:13-CV-1027-RMG, 2014 WL 3110063, at *3 (D.S.C. July 7, 2014) (noting that while an ALJ may resolve issues of credibility as to lay testimony or choose between properly submitted medical opinions, he may not set his own expertise against that of a physician).
The only explanation offered by the ALJ for his rejection of Dr. Korn's medical opinion is that the opinion was "vague," and that Dr. Korn did not define the term "prolonged" in making the determination that Plaintiff's conditions would cause discomfort and difficulty with "prolonged" ambulation, bending, leaning, and stooping. (R. at 36.) The ALJ is responsible, however, for developing "a full and fair record" and correcting any significant gaps or deficiencies in the medical record. Sheppard, 2014 WL 3110063, at *4. Accordingly, on remand, the ALJ should recontact Dr. Korn to ascertain his definition of the term "prolonged" as used in his assessment of Plaintiff's physical limitations. This newly-received information should then be considered in weighing Dr. Korn's opinion under 20 C.F.R. §§ 404.1527(c) and 416.927(c), without the ALJ injecting any presumed medical expertise into his assessment of the opinion.
With respect to his rejection of Dr. Tankersley's opinion, the ALJ appears to rely, at least in part, on Plaintiff's "lack of treatment" in the record. (R. at 36.) However, it is well-established that an adjudicator may not "draw any inferences about an individual's symptoms and their functional effects from a failure to seek or pursue regular medical treatment without first considering any explanations that the individual may provide, or other information in the case record, that may explain infrequent or irregular medical visits or failure to seek medical treatment." Capps v. Astrue, No. 6:08-CV-0188-HFF-WMC, 2009 WL 462698, at *15 (D.S.C. Feb. 23, 2009).
In the instant case, there is ample evidence to suggest that Plaintiff's lack of treatment was due to financial constraints, rather than the severity of her conditions. (See, e.g., R. at 508, noting that Plaintiff could not afford corrective orthotics or intra-articular steroid injections; R. at 64, testifying at the hearing before ALJ that lack of income and insurance was the "major obstacle" for Plaintiff in obtaining treatment.) Curiously absent from the ALJ's decision, however, is any discussion of Plaintiff's inability to receive or seek treatment due to her financial constraints. Indeed, the ALJ provides the Court with no evidence of how or if he took Plaintiff's ability to afford care into consideration in evaluating the medical evidence. Accordingly, on remand, the ALJ should also explain how he considered Plaintiff's financial constraints in relation to the lack of medical treatment in the record.
In fact, there is evidence in the record that Plaintiff's impairments required additional treatment. (See R. at 542, recommending surgical repair of her bunions.) See Williams v. Berryhill, No. 2:17-CV-01018-JMC-MGB, 2018 WL 4957380, at *7 (D.S.C. July 26, 2018), adopted sub nom., 2018 WL 4476122 (D.S.C. Sept. 19, 2018) (suggesting that a claimant's limited funds are a material issue if there is evidence in the record that plaintiff's conditions require further treatment).
III. Remaining Allegations of Error
The undersigned finds that the ALJ's failure to compare the specific listing criteria under Paragraph A to Plaintiff's impairments is a sufficient basis on which to remand the case to the Commissioner for further explanation of his determination at Step Three. Given that Plaintiff's remaining issues may be rendered moot on remand, the undersigned declines to specifically address Plaintiff's additional allegations of error. See 20 C.F.R. §§ 404.1520(a)(4)(iii) and 416.920(a)(4)(iii) (noting that when a claimant's impairment meets one of the listed impairments, the claimant is deemed disabled and no further analysis is required). However, upon remand, the Commissioner should take into consideration Plaintiff's remaining allegations of error. In particular, the undersigned urges the Commissioner to reevaluate the medical opinions of the State's consultative examiners pursuant to the instructions above.
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that the Commissioner's decision be REVERSED and that the case be REMANDED for further proceedings consistent with this Report and Recommendation.
IT IS SO RECOMMENDED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE July 2, 2019 Charleston, South Carolina
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).