Opinion
Civil Action 5:23-1742-SAL-KDW
04-19-2024
Angela Creel, Plaintiff, v. Martin O'Malley,[1] Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE.
This appeal from a denial of social security benefits is before the court for a Report and Recommendation (“Report”) pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying her claim for Supplemental Security Income (“SSI”) pursuant to the Social Security Act (“the Act”). For the reasons that follow, the undersigned recommends that the Commissioner's decision be reversed and remanded for an award of SSI benefits as detailed within.
I. Relevant Background
A. Procedural History
On December 13, 2016, Plaintiff protectively filed an application for SSI alleging her disability began on January 22, 2016. Tr. 172. Plaintiff's application was denied initially on April 26, 2017, Tr. 71, and on reconsideration on December 20, 2017, Tr. 94. On April 3, 2018, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). Tr. 108-10. ALJ Peggy McFadden-Elmore conducted an administrative hearing on August 9, 2018, taking testimony from Plaintiff and Vocational Expert (“VE”) Thomas Neil, PhD. Tr. 29-53. The ALJ denied Plaintiff's claim in a decision dated December 24, 2018. Tr. 11-24. On February 19, 2019, Plaintiff requested review of this decision by the Appeals Council. Tr. 169-70. After granting Plaintiff's request for additional time, Tr. 7-8, on December 4, 2019 the Appeals Council sent Plaintiff a “Notice of Appeals Council Action” indicating it had denied Plaintiff's request for review of the ALJ's December 2018 decision, Tr. 1-5.
On January 27, 2020 Plaintiff filed an action in this court seeking judicial review of the Commissioner's decision. See C/A No. 5:20-cv-276-TLW, ECF No. 1. While her case was on appeal, Plaintiff filed a new claim for SSI on March 11, 2020. Tr. 876-84. Plaintiff obtained an Order and Judgment, filed April 22, 2021, reversing the Commissioner's December 24, 2018 decision and remanding the case for further proceedings based on the findings in the Report and Recommendation (“R&R”) of the Magistrate Judge. Tr. 614-16, Order in C/A No. 5:20-cv-276-TLW. The R&R recommended remand so that the ALJ could reconsider the 2018 opinion of Dr. Michael Smith. Tr. 593-612. On March 16, 2022, the Appeals Council issued an Order vacating the Commissioner's decision and remanding the case to the ALJ “for further proceedings consistent with the order of the court.” Tr. 622. The Appeals Council noted that Plaintiff filed a subsequent claim for disability benefits on March 11, 2020 and determined that its “action with respect to the current electronic claim renders the subsequent claim duplicate.” Id. The Appeals Council instructed the ALJ to “consolidate the claims files, associate the evidence, and issue a new decision on the consolidated claims (20 CFR 416.1452 and HALLEX I-1-10-10)” and apply the prior rules to the consolidated case. Id.
ALJ Tammy Georgian conducted a second administrative hearing on July 21, 2022, Tr. 504-30, and on September 15, 2022 she issued her decision denying Plaintiff's claim, Tr. 478-94. On September 29, 2022, Plaintiff requested review of the ALJ's decision from the Appeals Council. Tr. 872-74. The Appeals Council granted Plaintiff additional time to submit Written Exceptions, Tr. 473-74, which Plaintiff submitted on November 23, 2022, Tr. 1016-19. On March 10, 2023 the Appeals Council found no basis to change the ALJ's September 15, 2022 decision and declined to assume jurisdiction of the case. Tr. 466-71. This made the ALJ's September 2022 decision the final decision of the Commissioner after remand by the court. Tr. 467. Plaintiff was instructed that if she wanted a federal court to review the Commissioner's final decision after remand by the court, she would need to file a new civil action. Id. Plaintiff brought this action seeking judicial review of the Commissioner's decision in a Complaint filed on April 26, 2023. ECF No. 1.
B. Plaintiff's Background
Born in July 1976, Plaintiff was 40 years old on her application date of December 13, 2016. Tr. 199. In her September 8, 2020 form Disability Report-Adult Plaintiff indicated that she was 5'2” tall and weighed 205 pounds. Tr. 954. Plaintiff indicated that she completed the 9th grade attending special education classes and has not completed any type of specialized job training, trade, or vocational school. Tr. 955. Plaintiff listed the following job in her work history: county summer feeding program - “off and on” from 2000 to 2015, three hours a day, five days per week. Id. Plaintiff indicated that she stopped working on December 31, 2015 because of her conditions which she listed as blackouts and headaches. Tr. 954.
C. Proceedings from Second Administrative Hearing
Plaintiff appeared with counsel for her second administrative hearing in Charleston, South Carolina on July 21, 2022 before ALJ Georgian. Tr. 504. VE Tonetta Watson-Coleman also appeared and testified. Id.
1. Plaintiff's Testimony
In response to questions from the ALJ Plaintiff testified that she lives in a mobile home with her 12-year-old niece. Tr. 511. Plaintiff stated that she receives an allocation of $180 per month for her niece, and she also receives food stamps. Tr. 512. Plaintiff testified that she has a driver's license and is able to drive, but her daughter drove her to the hearing. Id. Plaintiff testified that she has three children who are all adults, and she has six grandchildren. Id. Plaintiff stated that she completed the ninth grade and she did not obtain her GED or receive any other type of education or training. Tr. 513. Plaintiff stated that she has never held a full-time job because she “never knew how like to read or like count money. And then when [her] headaches and stuff started it's like [she is] not able to hardly do anything.” Id. Plaintiff testified that she “can't read at ¶ 3rd grade level.” Tr. 514. Plaintiff stated that her headaches started in 2015 and she was unable to work before that because of not having a high school diploma, being unable to read or count money, and having children. Id. When asked about working with the Summer Feeding Program Plaintiff testified that she just handed out food to children in the community during the summer. Tr. 514-15. Plaintiff stated that her daughter helped her complete the Social Security forms and Plaintiff would sign them. Tr. 515. Plaintiff testified that she is unable to work because her “headaches are just so bad” and she unable to lift anything and she is unable to push a grocery cart because it “puts too much pressure on [her] brain.” Tr. 516. Plaintiff testified that she gets headaches every day that last “maybe five to eight hours.” Id. Plaintiff stated that when she feels a headache coming on, she usually lies down in a dark room with no noise for 30 minutes to see if that helps before she takes any medication. Tr. 517. Plaintiff stated she takes Goody powders and hydrocodone, and she also gets Botox every three months for her headaches. Tr. 518. Plaintiff stated that she was taking Emgality, but her insurance no longer pays for that. Id. Plaintiff testified that she also takes medication to help her rest at night, and she takes allergy medication. Id. Plaintiff testified that she does not smoke, drink alcohol, or use recreational drugs. Id. Plaintiff stated that during a typical day she “may watch a little bit of TV. But that's about it.” Id. Plaintiff stated that she unable to enjoy her grandchildren because she “can't take the noise.” Id. She stated that her niece is old enough to stay in her room or with Plaintiff's daughter. Id. Plaintiff testified that if she is hungry, she will make a sandwich. She stated that her daughters help with household chores such as mopping, vacuuming, and laundry, and Plaintiff does not do any yardwork. Tr. 519. Plaintiff testified that she no longer attends church because it is too loud, and she stopped attending about three years prior when Covid started. Tr. 519-20. Plaintiff testified that she does not have any pets or hobbies. Tr. 520.
In response to questions from her attorney Plaintiff testified that in addition to the pain from migraines she also experiences sensitivity to light. Tr. 520. She stated that it is hard to see, and when the pain gets worse, she struggles with focusing. Id. Plaintiff testified that she experiences depression. Tr. 521. Plaintiff stated that the Botox injections help “some” but have not taken the pain “completely away.” Id. Plaintiff testified that in the past she has taken other medications to treat her headaches but did not know the names of them all. She recalled taking Topamax, but she stated that it did not help. Id. She stated that she is not taking any of the other medications because her insurance will not pay for it in addition to the Botox. Tr. 522. Plaintiff stated the insurance also pays for her allergy medication but will not pay for her “sleeping medicine.” Id.
2. VE's Testimony
The ALJ noted Plaintiff had no work at SGA or above levels and the VE confirmed that was consistent with her review. Tr. 523. The ALJ asked the VE to assume a hypothetical individual of Plaintiff's age, education, and with no past work experience with the following limitations:
[A]ssume the individual can do light work, can frequently sit, stand, and walk, never climb ladders, ropes, and scaffolds, can frequently climb ramps and stairs, stoop, kneel, crouch, and crawl....Must avoid concentrated exposure to loud noise and workplace hazards such as unprotected heights and moving machinery, can perform and sustain simple, routine tasks with customary work breaks, but not at a production rate pace. May have occasional superficial interaction with coworkers and the public.Tr. 523. The ALJ asked if there would be any work in the national economy and the VE identified the following exemplar positions: merchandise marker, SVP:2, unskilled, light, Dictionary of Occupational Titles (“DOT”) number 209.587-034, approximately 129,000 jobs; office router, SVP:2, unskilled, light, DOT number 222.587-038, approximately 34,900 jobs; and plastic hospital products assembler, SVP:2, unskilled, light, DOT number 712.687-010, approximately 38,500 jobs. Tr. 524. The VE confirmed that the assembler job is not a production rate pace job, and the identified jobs have a general education reasoning level of one or two that is consistent with simple, routine tasks. Id. The VE testified that her testimony was consistent with the DOT; however, her “opinion regarding the different types of climbing and the level of interaction between the hypothetical worker and coworkers are based upon [her] professional experience, education, and training as the DOT does not address those issues.” Id.
Plaintiff's counsel asked if there would be any competitive employment for an individual who would miss more than four days of work on a regular basis each month, and the VE responded in the negative noting “that worker would not be able to maintain employment.” Tr. 525. Counsel asked if there would be any competitive employment for an individual who would have to rest away from the workstation for more than an hour during the working portion of workday, and the VE responded in the negative. Id. Plaintiff's counsel had no further questions for the VE. Id. The VE noted that her testimony regarding absenteeism, additional breaks, and time away from the workstation was based on her professional experience, education, and training as the DOT does not address those issues. Tr. 527.
After some discussion regarding efforts to obtain additional medical records to supplement the case file, the hearing closed. Tr. 525-30.
II. Discussion
A. The ALJ's Findings
In her September 15, 2022 decision, the ALJ made the following findings of fact and conclusions of law:
1. The claimant has not engaged in substantial gainful activity since December 13, 2016, the application date (20 CFR 416.971 et seq.).
2. The claimant has the following severe impairments: obesity, migraine headaches, anxiety, depression, and attention deficit hyperactivity disorder (ADHD) (20 CFR 416.920(c)).
3. 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 416.920(d), 416.925 and 416.926).
4. 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 416.967(b). Specifically, the claimant can lift, carry, push and/or pull 20 pounds occasionally and 10 pounds frequently. She can sit for 6 hours in an 8-hour day and stand and/or walk for 6 hours in an 8-hour day, with normal breaks. The claimant can never climb ladders, ropes or scaffolds. She can frequently climb ramps and stairs, stoop, kneel, crouch, and crawl. The claimant must avoid concentrated exposure to loud noise and workplace hazards, such as unprotected heights and moving machinery. She can perform and sustain simple, routine tasks with customary work breaks, but not at a production-rate pace. She can
have only occasionally superficial interaction with the coworkers and the public.
5. The claimant has no past relevant work (20 CFR 416.965).
6. The claimant was born on July 18, 1976 and was 40 years old, which is defined as a younger individual age 18-49, on the date the application was filed (20 CFR 416.963).
7. The claimant has a limited education (20 CFR 416.964).
8. Transferability of jobs skills is not an issue because the claimant does not have past relevant work (20 CFR 416.968).
9. 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 416.969 and 416.969a).
10. The claimant has not been under a disability, as defined in the Social Security Act, since December 13, 2016, the date the application was filed (20 CFR 416.920(g)).Tr. 483-84, 486, 493-94.
B. 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,” defined 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); see also 42 U.S.C. § 1382c(a)(3)(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, 461 n.2 (1983) (discussing considerations and noting “need for efficiency” in considering disability claims). An examiner must consider the following: (1) whether the claimant is working; (2) whether the claimant has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings;(4) whether such impairment prevents claimant from performing past relevant work (“PRW”); and (5) whether the impairment prevents the claimant from performing specific jobs that exist in significant numbers in the national economy. See 20 C.F.R. § 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. § 416.920(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does 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. § 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, he will be found disabled without further assessment. 20 C.F.R. § 416.920(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that his impairments match several specific criteria or be “at least equal in severity and duration to [those] criteria.” 20 C.F.R. § 416.926; Sullivan v. Zebley, 493 U.S. 521, 530-31 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
A claimant is not disabled within the meaning of the Act if the claimant 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. § 416.920(a), (b); Social Security Ruling (“SSR”) 82-62 (1982). The claimant bears the burden of establishing the 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 that claimant can perform alternative work and that such work exists in the regional 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 the inability to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen, 482 U.S. at 146. n.5 (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 of Social Security made after a hearing to which 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 v. Barnhart, 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, 1157-58 (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. “Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005); see also Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (explaining that, “whatever the meaning of ‘substantial' in other contexts, the threshold for such evidentiary sufficiency is not high,” as it means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion”). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings, and that his conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). 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).
C. Analysis
Plaintiff argues that the ALJ improperly evaluated the opinions of Dr. Smith. Pl.'s Br. 2, ECF No. 8. The Commissioner argues that substantial evidence supports the ALJ's evaluation of Dr. Smith's opinions. Def.'s Br. 12, ECF No. 9.
1. Treating Physician Opinions
Social Security regulations require that medical opinions in a case be considered together with the rest of the relevant evidence. 20 C.F.R. § 416. 927(b).“Medical opinions are statements from acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [the claimant's] symptoms, diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and [the claimant's] physical or mental restrictions.” 20 C.F.R. § 416.927(a)(1). Statements that a patient is “disabled” or unable to work or meets the Listing requirements or similar statements are not medical opinions, but rather, are administrative findings reserved for the Commissioner. SSR 96-5p, 1996 WL 374183 at *2 (July 2, 1996). “However, opinions from any medical source on issues reserved to the Commissioner must never be ignored. The adjudicator is required to evaluate all evidence in the case record that may have a bearing on the determination or decision of disability, including opinions from medical sources about issues reserved to the Commissioner.” Id. at *3.
For claims filed on or after March 27, 2017, the regulations changed as to how adjudicators would consider and articulate medical opinions. See 20 C.F.R. § 416.920c. Because Plaintiff's claim was filed prior to March 27, 2017, 20 C.F.R. § 416.927 is applicable.
Generally, the opinions of treating physicians are entitled to greater weight than other evidence. “In many cases, a treating source's medical opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the test for controlling weight.” SSR 96-2p, 1996 WL 374188, at *4; Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 106-07 (4th Cir. 2020). The regulations note that treating sources “may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations.” See 20 C.F.R. § 416.927(c)(2). “However, ‘if a physician's opinion is . . . inconsistent with other substantial evidence, it should be accorded significantly less weight.'” Siders v. Comm r of Soc. Sec. Admin., No. 21-2329, 2023 WL 4488259, at *2 (4th Cir. July 12, 2023) (citing Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001); 20 C.F.R. § 416.927(c)(4)).
SSR 96-2p was rescinded effective March 27, 2017 for claims filed on or after March 27, 2017 because of revisions to the final rules including that “adjudicators will not assign a weight, including controlling weight, to any medical opinion for claims filed on or after March 27, 2017.” See 2017 WL 3928305. However, because this claim was filed prior to that date, SSR 96-2p is applicable.
If a treating source's opinion is not given controlling weight, then the following factors must be considered with respect to each medical opinion: (1) examining relationship; (2) treatment relationship, including the length of the treatment relationship, frequency of examination, and the nature and extent of the treatment relationship; (3) supportability, that is, the evidence presented to support the medical opinion; (4) consistency, that is, how consistent the medical opinion is with the record as a whole; (5) specialization; and (6) other factors. 20 C.F.R. § 416.927(c). “While an ALJ is not required to set forth a detailed factor-by-factor analysis in order to discount a medical opinion from a treating physician, it must nonetheless be apparent from the ALJ's decision that he meaningfully considered each of the factors before deciding how much weight to give the opinion. Dowling v. Comm'r of Soc. Sec. Admin., 986 F.3d 377, 385 (4th Cir. 2021).
While an ALJ is under no obligation to accept any medical opinion, she must nevertheless explain the weight afforded such opinions. See SSR 96-2p, 1996 WL 374188, at *5. “Where there are multiple opinions from a single source, an ALJ does not necessarily have to discuss each opinion separately to make clear the weight given it and the underlying reasons.” Bryant v. Colvin, No. 5:11-CV-648-D, 2013 WL 3455736, at *5 (E.D. N.C. July 9, 2013) (citing SSR 96-2p, 1996 WL 374188, at *2). “‘[T]he opinions of a treating physician are not entitled to great weight where they are contradicted by the physician's own treatment notes, or by other evidence.' Nor will an ALJ ‘give any special significance to the source of an opinion on issues reserved to the Commissioner,' including the residual functional capacity.” Bryant v. Colvin, No. 8:14-CV-02087-TLW, 2015 WL 5783813, at *2 (D.S.C. Sept. 28, 2015).
The responsibility for weighing evidence falls on the Commissioner, not the reviewing court. See Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). “An ALJ's determination as to the weight to be assigned to a medical opinion will generally not be disturbed absent some indication that the ALJ has dredged up ‘specious inconsistencies,' or has not given good reason for the weight afforded a particular opinion.” Koonce v. Apfel, 166 F.3d 1209 (4th Cir. 1999) (per curiam) (unpublished) (internal citation & quotation omitted); see also 20 C.F.R. § 416.927(d)(2). In undertaking review of the ALJ's treatment of a claimant's medical sources, the court focuses its review on whether the ALJ's decision is supported by substantial evidence.
a. Dr. Smith's 2018 Opinion
On April 16, 2018, Dr. Smith completed a Physical Residual Functional Capacity Questionnaire regarding Plaintiff. Tr. 391-95. He noted that his first date of contact with Plaintiff was on March 17, 2014, his frequency of contact was on an as-needed basis, and his last contact with Plaintiff was on April 16, 2018. Tr. 391. Her diagnoses were migraine headache and ADHD with a “fair” prognosis. Id. Dr. Smith described her symptoms as “severe intractable headaches” and noted she had an abnormal MRI in 2014. Id. He noted that she was currently taking narcotic pain medications. Id. Dr. Smith indicated that Plaintiff's impairments were expected to last over 12 months, she was not a malingerer, and there were not any emotional factors contributing to the severity of her symptoms or functional limitations. Tr. 392. He indicated that during a typical 8-hour workday Plaintiff's pain or other symptoms were severe enough to “constantly” interfere with the attention and concentration necessary to sustain simple, repetitive work tasks, and that she was “incapable of even ‘low stress' work.” Id. Dr. Smith indicated that Plaintiff cannot sit or stand more than 30 minutes at one time, and in an 8-hour workday she can stand/walk for less than two hours total, sit for about two hours total, and would require unscheduled breaks in addition to the three usual breaks. Tr. 393. He indicated that Plaintiff could rarely lift ten pounds or less, and she could never lift 20-50 pounds. Id. Dr. Smith indicated that Plaintiff could frequently twist, stoop/bend, crouch, climb ladders, climb stairs, and perform other postural activities. Tr. 394. He noted that Plaintiff had no limitations in doing repetitive reaching, handling, or fingering. Id. He indicated that Plaintiff's limitations considered in combination would likely produce “good” days and “bad” days, and that as a result of her impairments or due to medical treatment she would be absent from work more than four days per month. Id. Dr. Smith opined that these limitations have existed since 2016 and are expected to be permanent. Tr. 395.
b. The ALJ's Consideration of the 2018 Opinion
Initially, ALJ McFadden-Elmore gave little weight to this opinion finding that it was offered at the request of Plaintiff and motivated by the treating relationship. On remand the Appeals Council instructed the ALJ to give further consideration to the opinion. This finding was made by ALJ Georgian.
ALJ Georgian gave little weight to this opinion. Tr. 490. The ALJ found that “Dr. Smith did not apparently offer his medical opinions as to the claimant's functioning level on his own initiative, but rather offered them at the request of the claimant and the claimant's legal representative.” Id. The ALJ noted that the “objectivity of migraine headaches is difficult to access [sic], as it is largely subjective and typically not measurable by objective findings; however, a review of Dr. Smith's own treatment notes from that period does not suggest the level of severity that he indicated in his questionnaire.” Tr. 491. The ALJ then discussed treatment notes from 20172019 indicating Plaintiff was having good results from migraine pain medication and she had unremarkable neurology exams. Id. The ALJ also discounted Dr. Smith's opinions regarding Plaintiff's physical functionality noting that in 2017 he “noted that claimant exhibited full (5/5) strength of the upper and lower extremities, intact sensation, a normal gait, and normal reflexes. Id. The ALJ found Dr. Smith contradicted himself in his December 2017 treatment note by saying Plaintiff's “medication regimen for migraines provided good results” but also stating the Plaintiff “had been on numerous medications for her migraines with no relief.” Id. The ALJ concluded that “even assuming her migraines stem from an inoperable cyst, recent treatment notes indicate the claimant has reported 70% relief from Botox injections lasting 11-12 weeks and that she is receiving recurrent Botox injections for her head pain (Exhibits 15F and 29F).” Id. ALJ Georgian also noted that “Dr. Smith's opinions are not supported by neurological examinations nor are they consistent with the other evidence of record, including the normal examinations in neurology treatment notes and the essentially normal psychological consultative examination in November 2017, indicating normal cognition.” Id. The ALJ concluded: “Review of the evidence from the time his opinion was rendered does not corroborate his opinions. Because his opinions are overly restrictive and not supported by his own treatment notes or consistent with the objective evidence of record, they have been given little weight (Exhibit 13F).” Id.
c. Dr. Smith's 2022 Opinion
On May 10, 2022 Dr. Smith wrote a Medical Source Statement regarding Plaintiff's condition. Tr. 1392. He noted that her “most serious problem is an arachnoid cyst in her basal ganglia.” Id. Dr. Smith noted:
Her cyst demonstrates an excess accumulation of cerebrospinal fluid, and an excess accumulation of cerebrospinal fluid leads to exactly the sort of debilitating headaches the [Plaintiff] describes, with photophobia, phonophobia, and sometimes nausea and blurry vision. During these spells, which are occurring frequently, she must retreat to rest in a quiet, dark room. In contrast to the situation of the typical migraine sufferer, in [Plaintiff's] case the cyst provides hard proof that her incapacitating headaches are occurring. Unfortunately, because of the location of the cyst, it is not operable. As is typical with this particular condition, she has been placed on a number of medications with no significant improvement.Id. Dr. Smith opined that if Plaintiff “attempted to work she would miss hours out of the working portion of any work day and days out of any work month.” Id.
d. The ALJ's Consideration of the 2022 Opinion
ALJ Georgian also gave little weight to this opinion of Dr. Smith finding it “vague, as he was not specific as to the hours the claimant could work, nor did he set forth any specific functional limitations. There are no objective findings in his own treatment notes to suggest claimant would be unable to perform unskilled work with the above environmental and lifting restrictions.” Tr. 492. Citing to Plaintiff's migraine relief from Botox injections, the ALJ noted that “Dr. Smith did not indicate that he was aware that the claimant was receiving Botox injections.” Id. The ALJ concluded that she “assigned little weight to Dr. Smith's overly broad statements and his opinions that the claimant is precluded from working, as they are not consistent with the other evidence of record noting improvement with Botox injections and they are not supported by his own treatment notes or the other evidence of record, which reflect no neurological or cognitive abnormalities.” Id.
2. Discussion
Plaintiff argues that the ALJ's findings regarding Dr. Smith's April 2018 opinions are unreasonable on three bases. Pl.'s Br. 34. Plaintiff first argues that the ALJ's consideration of how the report was obtained-at the behest of counsel-does not provide a legitimate basis for rejecting the opinion. Id. Second, Plaintiff contends that recent caselaw from this District supports the premise that often there is no objective evidence for migraine headaches. Id. at 35 (citing Dorn v. Kijakazi, 4:22-cv-3329, 2023 WL 3143915 at *5 (D.S.C. April 28, 2023). Third, Plaintiff argues that despite treatment notes reporting improvement, Plaintiff “still suffered headaches 7 days per month.” Id. at 36 (citing Tr. 1341, January 8, 2021 Report from MUSC Health regarding Botox injection with Addendum noting that after talking with Plaintiff she reported that “after 1/8/21 BOTOX injection, her headache improved 70%. She used to have daily headache, but she may experience 7 headaches per month with BOTOX injection.”). Plaintiff also asserts “there were no opinions from a neurologist that conflicted with Dr. Smith's opinions.” Id.
The Commissioner contends that Plaintiff's arguments were not the only reason given by the ALJ for the weight assigned to Dr. Smith's 2018 opinion. Def.'s Br. 14. The Commissioner argues the ALJ determined “Dr. Smith's own treatment notes failed to support his opinion that Plaintiff was disabled” and cited to examples from Plaintiff's treatment records. Id. The Commissioner asserts the same holds true for the ALJ's assignment of little weight to Dr. Smith's 2022 opinion. Def.'s Br. 15. The Commissioner also discussed Dr. Smith's treatment records documenting normal findings for Plaintiff's physical and mental examinations. Def.'s Br. 15-16. The Commissioner argues that Dr. Smith's 2018 and 2022 opinions were contrary to the weight of the evidence and Plaintiff's arguments fail because the ALJ's findings were consistent with the law and supported by substantial evidence. Id. at 16.
On Reply, Plaintiff first contends that the Commissioner “seemingly concedes that the ALJ's first 2 reasons for assigning little weight to Dr. Smith's opinions were flawed” because he did not refute the arguments. Pl.'s Reply 3, ECF No. 10. Plaintiff further argues that the Commissioner's citation to “normal” physical findings does not mean that Plaintiff still does not have disabling headaches. Id. at 4. Plaintiff argues the “ALJ failed to provide a logical and accurate bridge between the findings and [her] decision and defense counsel offers no showing otherwise.” Id. Plaintiff contends that the Commissioner's argument regarding Dr. Smith's 2022 opinion fails for the same reason, and “where there is conflicting evidence, the ALJ has a duty to resolve the conflict and provide[] a reasoned assessment of the opinion evidence.” Id. at 6.
If a treating source's medical opinion is “well-supported and ‘not inconsistent' with the other substantial evidence in the case record, it must be given controlling weight[.]” SSR 96-2p; see also 20 C.F.R. § 416.927(c)(2) (providing treating source's opinion will be given controlling weight if well-supported by medically acceptable clinical and laboratory diagnostic techniques and not inconsistent with other substantial evidence in the record). “Generally, the more consistent a medical opinion is with the record as a whole, the more weight [will be given] to that medical opinion.” 20 C.F.R. § 416.927(c)(4). The rationale for the general rule affording opinions of treating physicians greater weight is “because the treating physician has necessarily examined the applicant and has a treatment relationship with the applicant.” Johnson, 434 F.3d at 654 (quoting Mastro, 270 F.3d at 178). The ALJ has the discretion to give less weight to the opinion of a treating physician when there is “persuasive contrary evidence.” Mastro, 270 F.3d at 176. SSR 96-2p requires that an unfavorable decision contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight. In undertaking review of the ALJ's treatment of a claimant's treating sources, the court focuses its review on whether the ALJ's opinion is supported by substantial evidence. The Fourth Circuit has characterized the treating physician rule as “a robust one” and explained that a treating physician's opinion “must be given controlling weight unless it is based on medically unacceptable clinical or laboratory diagnostic techniques or is contradicted by the other substantial evidence in the record.” Arakas, 983 F.3d at 107 (emphasis in original) (citing Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987)).
The ALJ's reasons for assigning Dr. Smith's opinions little weight were because she found they were not supported by his treatment notes, especially those noting that Plaintiff's headache medication provided good results; his opinions were not supported by objective abnormalities;the opinions were not supported by neurological or psychological examinations; and his statements regarding Plaintiff's inability to work were vague, overly broad, and inconsistent with evidence noting improvement with Botox injections. Tr. 491-92. However, the intractable nature of Plaintiff's headaches is supported by Dr. Smith's records, the records of the neurologist, and Plaintiff's own testimony. For example, Dr. Smith's treatment records that were cited by the Commissioner refer to Plaintiff's reports of good pain control with medication and normal neurological exams. The Commissioner cited to “five occasions between January 2021 and April 2022, [where] Dr. Sohn noted Botox injections relieved Plaintiff's headaches by 70% and her relief lasted for twelve weeks (Tr. 1353, 1451, 1513, 1593, 1596, 1657).” Def.'s Br. 16. The notations in these records indicate that although Plaintiff experienced relief, it was long in coming and short in duration. The treatment note from January 8, 2021 indicates that “[Plaintiff] felt it kick in after about 14 days and the medication started wearing off after 9-10 Weeks (less benefits for the first 2 months, then have more headaches).” Tr. 1353. The notation from May 28, 2021 again noted that the medication kicked in “after about 14 days and the medication started wearing off after 1112 Weeks (>70% improved after last injection).” Tr. 1451. The notations from August and December 2021 were the same, Tr. 1513 and 1593, except for the following addendum to the December report:
The ALJ noted that Dr. Smith “subsequently indicated that the cyst was the cause of the claimant's headaches” but she noted there was “no opinion by a neurologist on this issue.” Tr. 491. The ALJ determined that “even assuming her migraines stem from an inoperable cyst” her Botox treatments provided 70% relief. Id.
Tr. 1596 is a duplicate of the December 17, 2021 treatment note at Tr. 1593.
Patient already failed multiple preventive medications in the past including Topamax, Nortriptyline, Depakote, propranolol, Zonisamide, Levetiracetam and Effexor. She has had daily headaches (headache 30 days/month) before BOTOX over Years. Since BOTOX started 9/27/2019, Her headache has Improved (>70%) with BOTOX injection. Her last injection was 12/17/2021. She is overdue BOTOX injection currently. She needs next injection as early as possible.
She was on Emgality, but her insurance does not allow BOTOX and CGRPmab together. P[a]tient choose BOTOX.
She will stop Emgality. Need BOTOX schedule soon.Tr. 1594. The last record cited by the Commissioner is a letter from Dr. Sohn, dated April 15, 2022 and addressed “To Whom It May Concern.” Tr. 1657. The letter documents Plaintiff's medical necessity for Botox injections and outlines the information contained in the above-cited addendum. Id.
These records do not contradict Dr. Smith's findings regarding the efficacy of the various medications he prescribed for Plaintiff's headaches over the years. The ALJ cites specifically to a notation in a December 2017 treatment note where Dr. Smith reported her current medication regimen provided good results. Tr. 487. The ALJ stated, “he then contradictorily stated that the claimant had been on numerous medications for her migraines with no relief.” Id. The report actually stated:
She also has recurrent migraine headaches and uses Norco and Flexeril with good results. She has been seen by a neurologist and diagnosed with recurrent migraines. She has been on numerous medications to include sumatriptan inhibitors, as well as antiseizure medications like Depakote and Topamax for prevention of her migraines; however, nothing seems to work.Tr. 429. First, here Dr. Smith distinguishes between medications used to treat migraine pain and medications used to prevent migraines. Second, his observation is no different from the neurologist who administered Plaintiff's Botox injections stating that Plaintiff “failed multiple preventive medications in the past including Topamax, Nortriptyline, Depakote, propranolol, Zonisamide, Levetiracetam and Effexor” but saw improvement with Botox. Tr. 1594 (emphasis added). Furthermore, Plaintiff testified that the Botox injections have helped “somewhat but it hasn't taken [the pain] completely away.” Tr. 521. She also noted that in the past Dr. Smith tried “a lot” of medications to help treat her headaches, including Topamax, that did not help with her headaches. Id.
The ALJ found that Dr. Smith's May 2022 opinion that Plaintiff would miss hours out of a working day or days out of any work month was vague and not specific enough as to the number of hours Plaintiff would be unable to work. Tr. 492. However, the ALJ does not explain why 70% relief for migraines from Botox injections would mean that Plaintiff is capable of working on a regular and continuing basis as required by the regulations.At the administrative hearing the VE testified that if an individual missed more than four days of work on a regular basis per month “that worker would not be able to maintain employment.” Tr. 525. Plaintiff testified that she experienced headaches almost daily that last five to eight hours, and that when she has a migraine she has to lie down in a dark, quiet place. Tr. 516-17. For a 30-day period, even with 70% improvement, Plaintiff would still have over four days of headaches. The neurologist's notes indicated that with the Botox treatments Plaintiff still had seven headaches per month. Tr. 1341. Furthermore, the treatment notes indicated that it takes two weeks before the medication will start to “kick in.” In discounting Dr. Smith's opinion, it is unclear if the ALJ accounted for the frequency, duration, and severity of Plaintiff's headaches.
“A ‘regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule.” SSR 96-8P, 1996 WL 374184 at *1.
Also in her assessment of Dr. Smith's May 2022 opinion, the ALJ stated: “Dr. Smith did not indicate that he was aware that the claimant was receiving Botox injections. Therefore, I have assigned little weight to Dr. Smith's overly broad statements and his opinions that the claimant is precluded from working, as they are not consistent with the other evidence of record noting improvement with Botox injections . . . .” Tr. 492. While Dr. Smith did not mention Plaintiff's Botox treatments in his letter, he noted previously that she was being treated by a neurologist. Tr. 429. Additionally the medical record indicates that Dr. Sohn, who administered the Botox injections, sent Dr. Smith letters regarding her assessment and plan of care on May 28, 2021 and on December 17, 2021. Tr. 1452, 1595.
The ALJ also found Dr. Smith's opinions regarding Plaintiff's postural limitations inconsistent with his treatment records indicating that Plaintiff “exhibited full (5/5) strength of the upper and lower extremities, intact sensation, a normal gait, and normal reflexes.” Tr. 491. However, these physical findings do not necessarily negate the need for limitations because of Plaintiff's migraines. See Robinson v. Colvin, 31 F.Supp.3d 789, 792-93 (E.D. N.C. 2014) (finding that the “ALJ's reliance on normal strength and reflexes to discount [the doctor's] opinion would have no bearing on plaintiff's limitations due to migraine headaches.”). Other than noting one Pain Scale assessment from 2017 that asked Plaintiff if she felt the pain medication improved her functional status, Tr. 425, the ALJ does not explain why Dr. Smith's opinions could not be valid for the times when Plaintiff is experiencing migraine headaches. The ALJ did not provide an accurate and logical bridge from the evidence to her finding.
An “ALJ has the obligation to consider all relevant medical evidence and cannot simply cherry-pick facts that support a finding of nondisability while ignoring evidence that points to a disability finding.” Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017) (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)). In this court's prior decision, the case was remanded because the ALJ failed to properly weigh Dr. Smith's 2018 opinion. Here, although the ALJ weighs the opinions, the undersigned recommends the court find the ALJ did not adequately support her reasons for discounting the opinions of Plaintiff's longtime treating physician. The undersigned is well aware that the responsibility for weighing evidence falls on the Commissioner, not the reviewing court, see Craig v. Chater, 76 F.3d at 589, and the ALJ has the discretion to give less weight to the opinion of a treating physician when there is “persuasive contrary evidence.” Mastro, 270 F.3d at 176. However, although the ALJ has the discretion to give less than controlling weight to Dr. Smith's opinions, the undersigned does not believe the ALJ has identified persuasive contrary evidence rebutting his opinions. Pendarvis v. Colvin, No. CIV.A. 0:13-487-RMG, 2014 WL 2979776, at *13 (D.S.C. June 30, 2014). Nor has the ALJ given good reason for the weight she assigned to the opinions. A review of the medical evidence related to Plaintiff's headaches, both from Dr. Smith and from Plaintiff's neurologist, demonstrates a lack of substantial evidence to support a finding that Plaintiff can perform a full range of work on a regular and continuing basis.
While Plaintiff seeks remand for further proceedings, the undersigned recommends remanding for benefits as remand for reconsideration is unlikely to serve any useful purpose. “This Court's general practice is to remand decisions to the Commissioner for further administrative action, but it is well settled that the District Court has the authority to award benefits.” Cohen v. Berryhill, 272 F.Supp.3d 779, 783-84 (D.S.C. 2017) (citing 42 U.S.C. § 405(g)). This is especially true in circumstances like this “where the case is old, has been through the appeal process previously, and/or the record clearly establishes the claimant's entitlement to benefits[.]” Pendarvis v. Colvin, 2014 WL 2979776, at *7. Plaintiff first filed a claim for disability benefits in December 2016. ALJ McFadden-Elmore denied her claim in December 2018, and in April 2021 Plaintiff's case was remanded to reconsider the 2018 opinion of Dr. Smith resulting in a second administrative hearing and an unfavorable decision from ALJ Georgian in September 2022. Plaintiff's case has been pending for almost eight years and she still has no resolution on her claim. Accordingly, the undersigned recommends remanding the case for an award of benefits. Breeden v. Weinberger, 493 F.2d 1002, 1011 (4th Cir. 1974) (remanding for award of benefits and noting the case “has been pending in the agency and the courts for almost five years and has been remanded once before for additional evidence.”).
III. Conclusion and Recommendation
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 as to the weight assigned to Dr. Smith's opinion is supported by substantial evidence or is without legal error.
Accordingly, 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, it is recommended that, pursuant to sentence four of 42 U.S.C. § 405(g), the Commissioner's decision be reversed and remanded for an award of SSI benefits as detailed within.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”