Opinion
Civil Action No. 6:17-3045-MGL-KFM
11-19-2018
Tina W. Earles, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
REPORT OF MAGISTRATE JUDGE
This case is before the court for a report and recommendation pursuant to Local Civil 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).
A report and recommendation is being filed in this case, in which one or both parties declined to consent to disposition by the magistrate judge.
The plaintiff brought this action pursuant to Sections 205(g) and 1631(c)(3) of the Social Security Act, as amended (42 U.S.C. 405(g) and 1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security denying her claims for disability insurance benefits and supplemental security income benefits under Titles II and XVI of the Social Security Act.
ADMINISTRATIVE PROCEEDINGS
The plaintiff filed applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") benefits on July 24, 2014. In both applications, the plaintiff alleged that she became unable to work on September 30, 2013. She subsequently amended her alleged onset date to June 1, 2014 (Tr. 195). Both applications were denied initially and on reconsideration by the Social Security Administration. On December 22, 2014, the plaintiff requested a hearing. The administrative law judge ("ALJ"), before whom the plaintiff and Carey A. Washington, an impartial vocational expert, appeared on December 16, 2016, considered the case de novo, and on January 13, 2017, found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 20-29). The ALJ's finding became the final decision of the Commissioner of Social Security when the Appeals Council denied the plaintiff's request for review on September 28, 2017 (Tr. 1-4). The plaintiff then filed this action for judicial review.
In making the determination that the plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant meets the insured status requirements of the Social Security Act through December 31, 2019.
(2) The claimant has not engaged in substantial gainful activity since June 1, 2014, the alleged onset date (20 C.F.R §§ 404.1571 et seq., 416.971 et seq.).
(3) The claimant has the following severe impairments: spinal disorder, left shoulder impingement status post August 2016 surgery, right trochanteric bursitis, left knee synovitis status post September 2013 surgery, meralgia paresthetica, and obesity (20 C.F.R. §§ 404.1520(c), 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 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 416.920(d), 416.925, 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 C.F.R. §§ 404.1567(b) and 416.967(b) with additional functional limitations. The claimant can occasionally climb ladders, ropes, or scaffolds, kneel, and crouch. She can frequently climb ramps and stairs, balance, stoop, and crawl. She can frequently overhead reach bilaterally within the exertional level. Handling and fingering can be performed frequently on the non-dominant left. She can occasionally be exposed to hazards associated with unprotected, dangerous machinery or unprotected heights. She can maintain concentration, persistence, and pace to understand, remember, and carry out simple, routine tasks, in a low stress work environment (defined as being free of fast-
paced or team-dependent production requirements), involving simple work-related decisions, occasional independent judgment skills, and occasional workplace changes.
(6) The claimant is unable to perform any past relevant work (20 C.F.R. §§ 404.1565, 416.965).
(7) The claimant was born on February 15, 1970, and was 44 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date. (20 C.F.R. §§ 404.1563, 416.963).
(8) The claimant has at least a high school education and is able to communicate in English (20 C.F.R. §§ 404.1564, 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 C.F.R. 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 C.F.R. §§ 404.1569, 404.1569(a), 416.969, 416.969(a)).
(11) The claimant has not been under a disability, as defined in the Social Security Act, from June 1, 2014, through the date of this decision (20 C.F.R. §§ 404.1520(g), 416.920(g)).
The only issues before the court are whether proper legal standards were applied and whether the final decision of the Commissioner is supported by substantial evidence.
APPLICABLE LAW
Under 42 U.S.C. § 423(d)(1)(A), (d)(5) and § 1382c(a)(3)(A), (H)(i), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do 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." 20 C.F.R. §§ 404.1505(a), 416.905(a).
To facilitate a uniform and efficient processing of disability claims, the Social Security 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 that meets or medically equals an impairment contained in the Listing of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1, (4) can perform his past relevant work, and (5) can perform other work. Id. §§ 404.1520, 416.920. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. §§ 404.1520(a)(4), 416.920(a)(4).
A claimant must make a prima facie case of disability by showing he is unable to return to his past relevant work because of his impairments. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). Once an individual has established a prima facie case of disability, the burden shifts to the Commissioner to establish that the plaintiff can perform alternative work and that such work exists in the national economy. Id. (citing 42 U.S.C. § 423(d)(2)(A)). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Id. at 192.
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings "are supported by substantial evidence and were reached through application of the correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Id. In reviewing the evidence, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Id. Consequently, even if the court disagrees with Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
EVIDENCE PRESENTED
The plaintiff was 44 years old on her amended alleged disability onset date (June 1, 2014) and 46 years old at the time of the ALJ's decision (January 13, 2017). She completed high school (Tr. 40). She had past relevant work as a medical records clerk, sales representative, and receptionist (T. 28, 57)
On July 5, 2013, the plaintiff sought treatment from Kim Bean, NP, at Carolina Medical Affiliates in Spartanburg, South Carolina, for left knee issues. At that time, the plaintiff complained of occasional swelling of the knee with intermittent pain. On examination, the plaintiff had tenderness with pain on range of motion testing and positive crepitus in the left knee (Tr. 363-65).
On July 19, 2013, the plaintiff saw Michael W. Funderburk, M.D., at Orthopaedic Associates. During the examination, the plaintiff had swelling medially with tender range of motion that was painful over the medial and anterior joint line. At that time, imaging was performed that indicated a tear to the medial meniscus (Tr. 285-87). During a followup on July 24, 2013, Chris Cutshall, M.D., the plaintiff's primary care physician, noted that the plaintiff had a joint effusion in the left lower extremity (Tr. 367). During an August 2013 followup with Dr. Funderburk, the swelling and edema in the left knee were noted to have increased, and Dr. Funderburk suggested that the plaintiff have an injection. Dr. Funderburk performed the injection on September 9, 2013 (Tr. 279-84). On September 27, 2013, the plaintiff underwent an arthroscopy of the left knee with extensive synovectomy and partial medial meniscectomy of the posterior horn (Tr. 261-62). Following surgery, she underwent a course of physical therapy from September 30, 2013, until January 14, 2014 (Tr. 291-304). On October 28, 2013, the plaintiff was noted to have swelling posteromedially with painful deep flexion range of motion (Tr. 269-71). Her symptoms persisted into November 2013 (Tr. 268).
On February 26, 2014, the plaintiff saw neurologist Carol A. Kooistra, M.D., for intermittent left thigh pain, which was provoked by walking and standing. On examination, the plaintiff was noted to have atrophy in the left quadriceps with sensation to pinprick reduced in the left lateral femoral cutaneous distribution. Dr. Kooistra diagnosed her with meralgia paresthetica, a nerve condition of the outer thigh (Tr. 410-12). On March 12, 2014, the plaintiff underwent a lower extremity nerve conduction test, which showed left distal peroneal sensory nerve changes (Tr. 415). On April 2, 2014, the plaintiff reported doing somewhat better with the addition of Neurontin (Tr. 410).
On April 25, 2014, the plaintiff saw Dr. Cutshall for upper extremity pain, insomnia, joint pain, and neuropathic pain. She reported she was tender all over, including her upper right arm and left foot. On examination she had normal alignment and mobility, normal straight leg raise, and normal deep tendon reflexes. She had diffuse right shoulder pain, good range of motion, and tender points in her lower extremities (Tr. 392-94). During an examination on June 23, 2014, Dr. Cutshall noted the plaintiff had tenderness to palpation in her lateral epicondyle, forearm, and right bicep. She was prescribed a brace (Tr. 397).
On July 1, 2014, the plaintiff saw John Keith, M.D., an orthopaedist, for evaluation of her right upper extremity issues. On examination, the plaintiff was noted to have tenderness to palpation over the lateral condyle, which was worse with wrist extension. Dr. Keith diagnosed the plaintiff with lateral epicondylitis in the right arm (Tr. 308-10).
On July 3, 2014, Dr. Kooistra noted that the plaintiff was using Neurontin to control her pain, which caused sedation. The plaintiff experienced diffuse musculoskeletal stiffness with prolonged inactivity such as sitting (Tr. 408). Since the plaintiff's pain was not improving, Dr. Kooistra ordered an MRI of the lumbar spine performed with an epidural steroid injection ("ESI") if necessary (Tr. 409). On July 29, 2014, the MRI showed mild disc bulging at L3-L4 with mild spinal stenosis and bilateral neural foraminal encroachment. She had an injection at the L3-4 level (Tr. 311-12, 339-40, 407, 430). On August 14, 2014, at a followup examination with Dr. Kooistra, the plaintiff had normal tone, bulk, and strength, with normal final motor movements and normal gait. Her sensory exam showed deficits in the lateral femoral cutaneous nerve distribution on the left, and she was diagnosed with meralgia paresthetica and radiculopathy. Dr. Kooistra referred the plaintiff to physical therapy for low back pain and then to pain management (Tr. 408, 424). She reported that this ESI only gave her a few days of relief, and Dr. Kooistra opined that a repeat injection would likely not do any good (Tr. 408). During a followup appointment on September 18, 2014, Dr. Kooistra noted that the physical therapy was resulting in increased spasms in the plaintiff's gluteal region and left leg. She also noted continued complaints of sleepiness with the Neurontin and continued swelling of the left knee (Tr. 422).
On September 25, 2014, state agency physician Ted Roper, M.D., opined that the plaintiff could engage in a range of light work with occasional postural maneuvers (but no climbing ladders/ropes/scaffolds). He opined that she should be able to perform light work with restrictions including frequent right overhead reaching (Tr. 71-88).
On December 8, 2014, a second state agency physician, Stephen Burge, M.D., reviewed the medical evidence on file and opined that the plaintiff could engage in a range of light work with occasional climbing ladders/ropes/scaffolds, kneeling, and crouching (Tr. 94-97). Additionally, the plaintiff could frequently climb ramps and stairs, balance, stoop, and crawl (Tr. 90-109).
On December 15, 2014, the plaintiff saw Daniel J. Sheehan, M.D., at Pain Management Associates in Spartanburg. The plaintiff had tenderness to palpation over the left paraspinal region with pain on range of motion. She had normal posture, but she had pain on lumbar range of motion. She had a positive straight leg test on the right with decreased strength in the bilateral lower extremities and decreased reflexes in the bilateral legs. Dr.Sheehan diagnosed the her with lumbosacral radiculitis, mergalgia paresthetica, numbness, abnormal gait and knee pain. He prescribed pain medication (Tr. 431-34). During followup appointments in January and February of 2015, it was noted that the plaintiff had the same physical findings as before, but with a positive straight leg test on the left. On February 8, 2015, her gait was abnormal on examination (Tr. 438, 441-43). When these findings were noted again in April 2015, the pain management physician opined that the plaintiff could potentially receive a benefit from ESIs (Tr. 449). On April 13, 2015, the plaintiff's gait was abnormal, and an ESI was administered (Tr. 451-53). Following this injection, the plaintiff reported that her pain continued to worsen in May 2015 (Tr. 455-56). Another injection was performed on May 15, 2015 (Tr. 460).
On May 19, 2015, a repeat lumbar spine MRI revealed: (1) mild degenerative disc disease at L3-L4; (2) triangular impression on the thecal sac and abutment of the exiting nerve roots at L3-L4 due to combined decreased disc height, bulging annulus, and hypertrophy of the posterior elements; and (3) hypertrophy of the ligamentum flavum with or without superimposed calcification of the ligaments in the lower thoracic spine as described above with possible abutment of the spinal cord at the T11-12 level (Tr. 462-65).
On June 8, 2015, Dr. Sheehan noted that the plaintiff complained of upper extremity issues including numbness and tingling bilaterally (Tr. 487). On June 15, 2015, a nerve conduction study was normal (Tr. 471). She continued to see Dr. Sheehan for pain management, and she was treated with medication and ESIs (Tr. 455-61, 484-99).
Dr. Cutshall noted on June 17, 2015, that the plaintiff had increased back pain, which radiated down to her legs. She had an antalgic gait on examination (T. 515-17). On October 7, 2015, Dr. Cutshall noted that the plaintiff had pain on examination in her right lower extremity and an antalgic gait, she was "unable to do much," and she could "not stay on her feet for long." He stated that "unless something substantially changes in functional status it seems she is now permanently disabled" (Tr. 545-47).
On January 12, 2016, Dr. Cutshall noted the plaintiff had tenderness diffusely in the left shoulder, and she complained of left shoulder pain. On examination, she had normal range of motion with no instability (Tr. 590-91). On February 19, 2016, she underwent an MRI of the left shoulder and cervical spine. The left shoulder MRI revealed: (1) a seven millimeter full-thickness tear of the distal anterior supraspinatus with fluid extending across the defect into the subacromial/subdeltoid bursa; (2) tendinosis of the supraspinatus; and (3) mild acromioclavicular ("AC ") joint capsular hypertrophy (Tr. 598-99, 623). On February 25, 2016, she complained of hip pain, and an MRI showed tendinopathy on the greater trochanter, but was otherwise unremarkable (Tr. 600). On March 7, 2016, the plaintiff presented at Steadman Hawkins Clinic of the Carolinas in Greenville for her left shoulder issues. She reported that she "works at home" and "is able to [do] most of what she needs to do." On examination, she was noted to have impingement signs with subtle weakness in scaption, and Richard J. Hawkins, M.D., performed an injection to the left shoulder (Tr. 602-04, 644).
On April 31, 2016, Dr. Cutshall opined that the plaintiff would be: unable to lift up to ten pounds on even an occasional basis; unable to sit for more than 20 to 30 minutes at a time during an eight-hour workday; stand/walk for more than 30 minutes at a time; and unable to climb, balance, stoop, kneel, crouch, or crawl on even an occasional basis during an eight-hour workday. In stating the basis for his opinions regarding these exertional restrictions, Dr. Cutshall said, "She has chronic pain and lumbar radiculopathy which limits how long she can sit without exacerbation of pain. This is also exacerbated by lifting." Dr. Cutshall also noted that the plaintiff's medical history, MRIs, and lumbar injections formed the basis of his opinions. Dr. Cutshall further opined the plaintiff would miss three or more days from work due to her impairments and would experience pain on a constant basis that would interfere with her ability to perform even simple work tasks (Tr. 796-98).
On June 2, 2016, Dr. Cutshall diagnosed the plaintiff with chronic fatigue syndrome. Dr. Cutshall noted that the plaintiff had severe fatigue and slept a lot. Further, he noted that she had normal obstructive sleep apnea and had undergone Halter testing. Dr. Cutshall stated that he had reviewed her labs with her and the Halter results. He prescribed medication for the severe fatigue (Tr. 616-18).
On June 6, 2016, at a followup appointment for the plaintiff's shoulder, Dr. Hawkins noted that the plaintiff's left shoulder pain was "now affecting her daily life including difficulty driving and pain with overhead activity and reaching out in front as well." He further noted that the plaintiff "works in sales and does not do a lot of heavy lifting. "At that time, with respect to her shoulder, the plaintiff had pain with active range of motion in all planes; decreased range of motion in all planes; tenderness to palpation over the anterior shoulder, Codman's point, and AC joint; and decreased strength in the supraspinatus and infraspinatus. The right shoulder also revealed impingement signs with positive Hawkins and Neer's testing. Dr. Hawkins did bilateral shoulder injections on that day and referred the plaintiff for potential operative treatment on the left shoulder (Tr. 612-15).
On August 22, 2016, John M. Tokish, M.D., performed a left shoulder arthroscopy, arthroscopic biceps tenotomy, and arthroscopic subacromioplasty (Tr. 571-72). On September 26, 2016, the plaintiff was examined by Dr. Tokish. He noted global stiffness with range of motion limited in the left shoulder (Tr. 690). On September 30, 2016, at a followup with Dr. Cutshall, the plaintiff was noted to have fatigue and pain (Tr. 625).
On October 11, 2016, the plaintiff was seen by Matthew Baird, M.D., at Steadman Hawkins for continued complaints of low back and right hip pain. On examination, her straight leg raise was negative, and she had full 5/5 lower extremity strength and sensation. She had only mild left paraspinal tenderness and was able to walk on heels and toes with a normal gait. She had full range of motion in her hip with only mild pain and mild tenderness with full flexion and internal and external rotation. Dr. Baird noted mild left paraspinal tenderness with tenderness to the lateral right hip diffusely (Tr. 628-30, 701-04).
On November 7, 2016, the plaintiff followed up with Dr. Tokish for some stiffness in her shoulder. Dr. Tokish recommended conservative management with physical therapy (Tr. 714-17). He also provided a medical source statement in which he noted that due to the plaintiff's pain, stiffness, and weakness, she would be unable to meet the basic exertional demands of even sedentary work. She would require more than three breaks a day from work. He indicated that during a typical workday, she would occasionally experience pain/symptoms severe enough to interfere with attention and concentration required to perform simple work tasks. Dr. Tokish checked the box that the plaintiff's limitations had not lasted or would not last for 12 consecutive months (Tr. 637).
On November 9, 2016, Dr. Baird performed a bursa injection in the plaintiff's right hip (730-35).
On November 31, 2016, Dr. Cutshall completed a medical source statement form. Dr. Cutshall indicated that the plaintiff could never lift any weight or engage in any postural maneuvers; and she could only sit 20-30 minutes in an eight-hour workday and stand/walk 30 minutes in an eight-hour workday. Dr. Cutshall further indicated that the plaintiff would be absent from work more than three times a month and that her pain/symptoms would constantly interfere with attention and concentration needed to perform even simple work tasks (Tr. 796-98).
On December 16, 2016, at the administrative hearing, the plaintiff testified that she lived in a house with her 17 year old son who helped with the household duties, including cooking and cleaning. The plaintiff stated that she did not go to the grocery store without her son or sister, as she needed help lifting the groceries off the shelf and placing them into a motorized scooter. The plaintiff stated that she stopped working in 2013 due to issues with her left knee that necessitated surgery, and despite her best efforts after the surgery, the pain kept her from going back to work. She opined that the pain in her left knee was now accompanied by pain in her lower back that radiated down her left lower extremity, pain in her right hip, and pain in her left shoulder. When questioned about her treatment, she stated that she had undergone several injections for her back and had surgery for left knee and shoulder issues that did not help. She had daily swelling in her left knee after surgery, which required ice and elevation several times a day (Tr. 40-54).
In terms of her functional limitations from her impairments, the plaintiff testified that she was restricted in many of her activities of daily living. Specifically, she testified that she could only: stand for 20-30 minutes at a time, sit for 30 minutes at a time before becoming stiff, raise her left arm to 120 degrees, and lift a few pounds with either hand. When questioned, the plaintiff noted that her reaching was poor in all directions with both arms and that she was only able to lift a gallon of milk using two hands. Her poor reaching ability also caused issues getting dressed. Additionally, the plaintiff stated that she has issues turning her neck to the right. She testified that her prescribed pain medication, gabapentin, made her sleepy, weak, and interfered with her ability to focus and remember things (Tr. 46-52).
The vocational expert testified at the hearing that the plaintiff had past relevant work as a medical records clerk, a sales representative of cosmetics, and a receptionist (T. 57). The ALJ asked the vocational expert to consider a hypothetical individual who was able to perform a restricted range of light work with, among other things, the ability to perform "frequent overhead reaching bilaterally within the exertional level. Handling and fingering can be performed frequently on the non-dominant left." The vocational expert opined that the individual would be unable to perform all of the past relevant work, but would be able to perform several other representative occupations (Tr. 57-60). The ALJ then asked the vocational expert to assume the same hypothetical individual could perform sedentary work with all other restrictions remaining the same. The vocational expert opined that all past work would be eliminated, but other representative occupations would exist that the individual could perform (Tr. 60-61). The plaintiff's attorney asked the vocational expert if jobs existed in the national economy that could be performed if the individual in either prior hypothetical were restricted to occasional reaching bilaterally with occasional handling and fingering with the non-dominant hand, to which the vocational expert responded that no such jobs existed in significant numbers in the national economy (Tr. 62-63).
ANALYSIS
The plaintiff argues that the ALJ erred by (1) finding that her chronic fatigue syndrome is not a severe impairment, (2) failing to properly consider the opinions of her treating physicians, and (3) failing to properly evaluate her subjective complaints (doc. 9 at 1). Because the undersigned finds that remand is warranted based upon the ALJ's failure to properly evaluate the plaintiff's subjective complaints, the other allegations of error will not be further addressed herein.
Subjective Complaints
The Fourth Circuit Court of Appeals has stated as follows with regard to the analysis of a claimant's subjective complaints:
[T]he determination of whether a person is disabled by pain or other symptoms is a two-step process. First, there must be objective medical evidence showing the existence of a medical impairment(s) which results from anatomical, physiological, or psychological abnormalities and which could reasonably be expected to produce the pain or other symptoms alleged. . . .Craig v. Chater, 76 F.3d 585, 594-95 (4th Cir. 1996) (citations and internal quotation marks omitted) (emphasis in original). In Hines v. Barnhart, a Fourth Circuit Court of Appeals panel held, "Having met his threshold obligation of showing by objective medical evidence a condition reasonably likely to cause the pain claimed, [the claimant] was entitled to rely exclusively on subjective evidence to prove the second part of the test, i.e., that his pain [was] so continuous and/or severe that it prevent[ed] him from working a full eight-hour day." 453 F.3d 559, 565 (4th Cir. 2006). However, the court in Hines also acknowledged that "'[o]bjective medical evidence of pain, its intensity or degree (i.e., manifestations of the functional effects of pain such as deteriorating nerve or muscle tissue, muscle spasm, or sensory or motor disruption), if available should be obtained and considered.'" Id. at 564 (quoting SSR 90-1p, 1990 WL 300812). The court further acknowledged:
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It is only after a claimant has met her threshold obligation of showing by objective medical evidence a medical impairment reasonably likely to cause the pain claimed, that the intensity and persistence of the claimant's pain, and the extent to which it affects her ability to work, must be evaluated.
While objective evidence is not mandatory at the second step of the test, "[t]his is not to say, however, that objective medical evidence and other objective evidence are not crucial to evaluating the intensity and persistence of a claimant's pain and the extent to which it impairs her ability to work. They most certainly are. Although a claimant's allegations about her pain may not be discredited solely because they are not substantiated by objective evidence of the pain itself or its severity, they need not be accepted to the extent they are inconsistent with the available evidence, including objective evidence of the underlying impairment, and the extent to which that impairment can reasonably be expected to cause the pain the claimant alleges she suffers."Id. at 565 n.3 (quoting Craig, 76 F.3d at 595). See Johnson v. Barnhart, 434 F.3d 650, 658 (4th Cir. 2005); 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2) ("We must always attempt to obtain objective medical evidence and, when it is obtained, we will consider it in reaching a conclusion as to whether you are disabled. However, we 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.").
A claimant's symptoms, including pain, are considered to diminish his capacity to work to the extent that alleged functional limitations are reasonably consistent with objective medical evidence and other evidence. 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4). Furthermore, "a formalistic factor-by-factor recitation of the evidence" is unnecessary as long as the ALJ "sets forth the specific evidence [he] relies on" in evaluating the claimant's subjective symptoms. White v. Massanari, 271 F.3d 1256, 1261 (10th Cir. 2001). In making these determinations, the ALJ's decision "must contain specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms." SSR 16-3p, 2017 WL 5180304, at *10 (applicable date Mar. 28, 2016). The factors to be considered by an ALJ in evaluating the intensity, persistence, and limiting effects of an individual's symptoms include the following:
Social Security Ruling16-3p rescinded and superseded SSR 96-7p and became applicable on March 28, 2016. 2017 WL 5180304, at *13. Because this application was adjudicated after the date SSR 16-3p became applicable, the court has analyzed the plaintiff's allegations under that ruling. Id. at *13 n.27. The court observes that SSR 16-3p discontinues use of the term "credibility," but "'the 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.'" Best v. Berryhill, C.A. No. 0:15-cv-02990-DCN, 2017 WL 835350, at *4 n.3 (Mar. 3, 2017) (alteration in original) (quoting Sullivan v. Colvin, C.A. No. 7:15-cv-504, 2017 WL 473925, at *3 (W.D. Va. Feb. 3, 2017)). See also Keaton v. Colvin, C.A. No. 3:15-cv-588, 2017 WL 875477, at *6 (E.D. Va. Mar. 3, 2017) ("Effective as of March 28, 2016, SSR 16-3p superseded SSR 96-7p. SSR 16-3p effectively removes the use of the term 'credibility' but does not alter the substantive analysis.").
(1) the individual's daily activities;
(2) the location, duration, frequency, and intensity of the individual's pain or other symptoms;
(3) factors that precipitate and aggravate the symptoms;
(4) the type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms;
(5) treatment, other than medication, the individual receives or has received for relief of pain or other symptoms;20 C.F.R. §§ 404.1529(c), 416.929(c).
(6) any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and
(7) any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms.
In the residual functional capacity ("RFC") assessment, the ALJ outlined the plaintiff's subjective complaints, including that she had pain in her low back radiating into her left knee and pain in her left shoulder and right hip. The ALJ further noted that the plaintiff testified that she could stand in one place for up to 30 minutes, sit for 30 minutes, could not bend to pick up something off the floor, could lift one to two pounds with her left hand and two to three pounds with both hands, and could not lift her left arm above her head. The ALJ also noted the plaintiff's testimony that medication affected her focus and memory (Tr. 25). The ALJ cited the applicable law and found that while the plaintiff's medically determinable impairments could reasonably be expected to produce the alleged symptoms, her statements concerning the intensity, persistence, and limiting effects of those symptoms were "not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in the decision" (Tr. 25). The ALJ then set out the evidence regarding the plaintiff's treatment for knee, back, shoulder, and hip pain, which included knee and shoulder arthroscopies (Tr. 25-27). The ALJ concluded, "Overall, the record shows that while the claimant's impairments have required ongoing treatment, including her two above-noted surgeries, objective medical findings do not indicate her functional capacity is impaired to the degree that she would be unable to perform work within the limited parameters outlined above" (Tr. 27).
As argued by the plaintiff, "the ALJ must both identify evidence that supports his conclusion and 'build an accurate and logical bridge from [that] evidence to his conclusion.'" Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (emphasis in original) (quoting Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016)). Here, the ALJ did not indicate how any of the evidence he cited showed the plaintiff was not as functionally limited as she claimed nor did he explain how the cited evidence supported his conclusion about the plaintiff's RFC.
As set out above, an individual's statements about the intensity, persistence, and limiting effects of symptoms are not to be disregarded "solely because the objective medical evidence does not substantiate the degree of impairment-related symptoms alleged by the individual." SSR 16-3p, 2017 WL 5180304, at *5 (citing 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2)). In addition to "objective medical findings," the ALJ gave only one other reason for the weight given to the plaintiff's subjective complaints: his own personal observation of the plaintiff at the hearing. The ALJ stated that the plaintiff "alleged she could sit for 30 minutes at a time; however, . . . she remained seated for 50 minutes during the hearing, after which she rose from her seat without difficulty" (Tr. 25). As noted by the plaintiff, she testified at the administrative hearing that she could sit for 30 minutes before becoming stiff (doc. 9 at 18) (citing Tr. 47) (emphasis added). The plaintiff argues that her actual testimony "is a far cry from the inference that the ALJ attempts to make" (doc. 9 at 18). Notably, an "ALJ may not solely base a credibility determination on his observations at a hearing; however, the ALJ may include these observations in his credibility determination." Massey v. Astrue, C.A. No. 3:10-2943-TMC, 2012 WL 909617, at *4 (D.S.C. Mar. 16, 2012) (emphasis in original) (citations omitted). See also SSR16-3p, 2017 WL 5180304, at * 7 ("The adjudicator will consider any personal observations of the individual in terms of how consistent those observations are with the individual's statements about his or her symptoms as well as with all of the evidence in the file.").
Here, the ALJ failed to explain how any of the cited evidence showed the plaintiff was not as functionally limited as she claimed, and the only other factor the ALJ considered in the assessment of the plaintiff's subjective complaints was his own observations of the plaintiff at the hearing. Accordingly, the undersigned recommends that this matter be remanded to the ALJ for further consideration of the plaintiff's subjective complaints. Upon remand, the ALJ's decision "must contain specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms." SSR 16-3p, 2017 WL 5180304, at *10.
Remaining Allegations of Error
In light of the court's recommendation that this matter be remanded for further consideration as discussed above, the court need not specifically address the plaintiff's remaining allegations of error as the ALJ will be able to reconsider and re-evaluate the evidence as part of the reconsideration of this claim. Hancock v. Barnhart, 206 F. Supp.2d 757, 763-64 n.3 (W.D. Va. 2002) (on remand, the ALJ's prior decision has no preclusive effect as it is vacated and the new hearing is conducted de novo). See Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3d Cir. 2003) (remanding on other grounds and declining to address claimant's additional arguments). Accordingly, as part of the overall reconsideration of this claim upon remand, the following additional allegations of error should be considered: (1) the ALJ erred in finding that her chronic fatigue syndrome is not a severe impairment, and (2) the ALJ failed to properly consider the opinions of treating physicians Drs. Cutshall and Tokish (doc. 9 at 10-17).
CONCLUSION AND RECOMMENDATION
Based upon the foregoing, this court recommends that the Commissioner's decision be reversed under sentence four of 42 U.S.C. § 405(g), with a remand of the cause to the Commissioner for further proceedings as discussed above.
Although the plaintiff argues that the Commissioner's decision "should be reversed and [she] should be awarded Disability Insurance Benefits and Supplemental Security Income . . . " (doc. 9 at 19), the court finds that the plaintiff's entitlement to benefits is not wholly established and that this matter should be remanded for further consideration and assessment of the above-discussed evidence by the ALJ. See Crider v. Harris, 624 F.2d 15, 17 (4th Cir. 1980) (finding remand for an award of benefits was warranted where the individual's entitlement to benefits was "wholly established" on the state of the record). --------
IT IS SO RECOMMENDED.
s/Kevin F. McDonald
United States Magistrate Judge November 19, 2018
Greenville, South Carolina