Opinion
C. A. 6:22-cv-1559-JD-KFM
01-17-2023
Jennifer George, Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social Security, Defendant.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States 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 28 U.S.C. § 636(b)(1)(B). The 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 denying her claim for disability insurance benefits under Title II of the Social Security Act.
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.
ADMINISTRATIVE PROCEEDINGS
The plaintiff filed an application for disability insurance benefits (“DIB”) on September 20, 2019, alleging that she became unable to work on August 26, 2011 (Tr. 260-66). The application was denied initially (Tr. 78-84) and on reconsideration (Tr. 86-92, 94) by the Social Security Administration. On June 1, 2020, the plaintiff requested a hearing (Tr. 127). On November 3, 2020, an administrative hearing was held at which the plaintiff, represented by counsel, and Robert Brabham, an impartial vocational expert, appeared and testified by telephone due to the COVID-19 pandemic before the administrative law judge (“ALJ”) assigned to the case (Tr. 28-50). During the hearing, the plaintiff amended her alleged onset date to June 13, 2018 (Tr. 31-32, 54-55, 277). On March 1, 2021, the ALJ considered the case de novo and found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 98-110). The plaintiff requested review by the Appeals Council and on June 7, 2021, the Appeals Council issued an order remanding the plaintiff's case to the ALJ and instructed that additional matters be completed by the ALJ on remand (Tr. 113-15).
Based on the remand from the Appeals Council, on October 21, 2021, a second administrative hearing was held at which the plaintiff, represented by counsel, and Charles Wheeler, an impartial vocational expert, appeared and testified by telephone due to the COVID-19 pandemic before the ALJ (Tr. 51-77). On November 29, 2021, the ALJ found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 12-27). The ALJ's finding became the final decision of the Commissioner of Social Security pursuant to 20 C.F.R. § 404.984(d). The plaintiff then filed this action for judicial review (doc. 1).
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 last met the insured status requirements of the Social Security Act on June 30, 2019.
(2) The claimant did not engage in substantial gainful activity during the period from her alleged onset date of June 13, 2018, through her date last insured of June 30, 2019 (20 C.F.R. § 404.1571 et seq.).
(3) Through the date last insured, the claimant had the following severe impairment: degenerative disc disease (20 C.F.R. § 404.1520(c)).
(4) Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled 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, and 404.1526).
(5) After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform light work as defined in 20 C.F.R. § 404.1567(b) except she cannot climb ladders, ropes, or scaffolds; she can occasionally climb ramps and stairs, stoop, kneel, crouch, and crawl; and she must avoid working at unprotected heights.
(6) Through the date last insured, the claimant was capable of performing past relevant work as a waitress and restaurant manager. This work did not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 C.F.R. § 404.1565).
(7) The claimant was not under a disability, as defined in the Social Security Act, at any time from June 13, 2018, the alleged onset date, through June 30, 2019, the date last insured (20 C.F.R. § 404.1520(f)).
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), 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).
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 her past relevant work, and (5) can perform other work. Id. § 404.1520. If an individual is found disabled or not disabled at any step, further inquiry is unnecessary. Id. § 404.1520(a)(4).
A claimant must make a prima facie case of disability by showing she is unable to return to her past relevant work because of her 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 191-92.
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 the 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).
ANALYSIS
The plaintiff, who was 41 years old on the date last insured, seeks disability based upon chronic pain; an inability to perform most postural movements; a limited ability to stand, walk, or sit except for brief periods of time; a limited ability to lift; and an inability to concentrate or focus on basic tasks. She has past relevant work experience as a waitress and restaurant manager (Tr. 19). The plaintiff argues that the ALJ erred by (1) failing to appropriately evaluate the plaintiff's subjective complaints under Social Security Ruling (“SSR”) 16-3p (doc. 10 at 19-22) and (2) failing to appropriately evaluate opinion evidence (id. at 23-36). The Commissioner asserts that the ALJ's decision is supported by substantial evidence and should be affirmed (doc. 12 at 7-15).
Subjective Complaints
As noted, the plaintiff asserts that the ALJ erred in the consideration of the plaintiff's subjective complaints (doc. 10 at 19-22). The Court of Appeals for the Fourth Circuit 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. . . . ....
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.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 panel held, “Having met his threshold obligation of showing by objective medical evidence a condition reasonably likely to cause the pain claimed, [the plaintiff] was entitled to rely exclusively on subjective evidence to prove the second part of the test, i.e., that [her] pain [was] so continuous and/or so severe that it prevented] [her] from working a full eight-hour day.” Hines, 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.
The court further acknowledged:
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) (“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 her 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). 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:
(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;
(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.20 C.F.R. § 404.1529(c).
The plaintiff alleges that the ALJ erred in the subjective complaints analysis because he found the plaintiff's subjective complaints were not consistent with the record (doc. 10 at 19-22). The court finds no error in the ALJ's consideration of the plaintiff's subjective complaints. In the residual functional capacity (“RFC”) assessment, the ALJ set out the plaintiff's subjective complaints in detail (Tr.16-19). In evaluating the plaintiff's subjective complaints, the ALJ found that while the plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms, her statements concerning the intensity, persistence, and limiting effects of the symptoms were “not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in [the] decision” (Tr. 17). In analyzing the appropriateness of the plaintiff's RFC in light of the plaintiff's subjective complaints, the ALJ summarized the plaintiff's subjective allegations and analyzed them in light of the plaintiff's treatment history, as required by the regulations (Tr. 16-19). Importantly, the plaintiff does not argue that the ALJ failed to analyze the appropriate factors in analyzing the plaintiff's subjective complaints; instead, she asserts that the ALJ erred by referring to the plaintiff's treatment as conservative, relying on cherry-picked portions of the record, and by noting that the plaintiff did not have medication side effects (doc. 10 at 19-22). The undersigned finds the plaintiff's arguments unpersuasive.
As an initial matter, the plaintiff makes much of the ALJ's reference to the plaintiff's lack of side effects from medication - arguing that this was an improper reference by the ALJ because the plaintiff did not report medication side effects. However, one of the factors for consideration when evaluating subjective complaints is the type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms. 20 C.F.R. § 404.1529(c)(4). As such, the ALJ appropriately noted that the plaintiff's subjective complaints were not consistent with reports that her medications effectively treated her pain and that she had no medication side effects - as required by the regulations.
The plaintiff also argues that the ALJ erred in the subjective complaints analysis by referring to the plaintiff's treatment as conservative in nature and non-disabling (doc. 10 at 20). Interestingly, as above, the plaintiff's argument reinforces that the ALJ's subjective complaints analysis comported with the regulations, as the ALJ was required to evaluate the nature of the plaintiff's medical treatment in considering the plaintiff's subjective complaints under the regulations. Nevertheless, the plaintiff also argues that the ALJ erred in the analysis because he cherry-picked portions of her treatment records in finding her subjective complaints inconsistent with the record evidence. The undersigned finds that substantial evidence supports the ALJ's conclusion that the plaintiff's subjective complaints were not consistent with other record evidence.
For example, the plaintiff's main treating provider during the applicable period was Robert L. Pugh, Jr., M.D., and he saw the plaintiff monthly (Tr. 421-62). However, during every treatment visit, examination findings from Dr. Pugh indicated that the plaintiff was in no acute distress, was well-developed, had full range of motion (“ROM”) in her neck and musculoskeletal system, had tenderness to palpation in her spine, had a lesion to her upper lip, and had normal motor strength in her upper and lower extremities (Tr. 421-22, 424-25, 427-28, 430-31, 433-34, 436-37, 439-40, 442-43, 445-46, 448-49, 451-52, 454-55, 457-58, 460-61). Examination findings by Dr. Pugh postdating the plaintiff's date last insured remained the same (Tr. 463-64, 466-67, 469-70, 473-74, 476-77, 479-80, 482-83, 485-86, 488-89, 1057-58, 1060-61). These examination findings, as noted by the ALJ, are not consistent with the plaintiff's reports of debilitating pain interfering with all aspects of life. Perhaps recognizing that the relatively benign examination findings were inconsistent with her subjective complaints, the plaintiff argues that these findings were computer generated and do not actually represent Dr. Pugh's findings and that the History of Present Illness (“HPI”) were the only notes actually completed by Dr. Pugh (doc. 10 at 20-21). First, there is no indication in the treatment records that Dr. Pugh did not complete the examination findings for the plaintiff's appointments. Further, Rutland v. Astrue, the only case relied on by the plaintiff from this district, involved treatment records from one provider who treated Rutland for a specific condition and failed to note Rutland's other impairments. C/A No. 2:09-cv-003263-RSC, 2010 WL 4226011 (D.S.C. Oct. 19, 2010). Here, on the other hand, Dr. Pugh's treatment records as a whole reflect that he treated the plaintiff more comprehensively and that during each visit with the plaintiff completed an HPI, completed a physical examination of the plaintiff, and continued to manage the plaintiff's medications (Tr. 421-90, 1057-62). As such, the ALJ appropriately noted that the plaintiff's relatively benign examination findings were not consistent with her subjective complaints.
The plaintiff also argues that the ALJ mischaracterized Dr. Pugh's records because even when the examination findings were relatively benign, “each note on the prior page indicated that [the plaintiff] continued to have limited range of motion,” as well as that the plaintiff continued to have “acute on chronic pain with frequent exacerbations” (doc. 10 at 20). However, Dr. Pugh's HPI findings indicated that the plaintiff had pain, but the pain was controlled on her current medications (Tr. 421,424, 427, 430, 433, 436, 439, 442, 445, 448, 451, 454, 457, 460, 463, 466, 469, 473, 476, 479, 482, 485, 488, 1057, 1060). Dr. Pugh also noted that the plaintiff had trouble picking up her daughter, but never indicated that she had ROM deficits (Tr. 421,424, 427, 430, 433, 436, 439, 442, 445, 448, 451,454, 457, 460, 463, 466, 469, 473, 476, 479, 482, 485, 488, 1057, 1060). For example, the plaintiff's HPI on the alleged onset date of June 13, 2018, typical of the plaintiff's treatment visits with Dr. Pugh, indicated as follows:
39 year old female presents to the office with spinal stenosis who underwent a spinal fusion by Dr. Polletti at the SE Spine Institute. She still has acute on chronic pain with frequent exacerbations. She has back spasms along with the lumbar pain. Her pain and spasms are controlled with Flexeril. She remains on permanent disability who continues to have limited range of motion. She remains on Fentanyl for the chronic pain with Percocet for breakthrough that has controlled her pain. She performs daily exercises to strengthen her core, but remains unstable. Anxiety remains controlled with Xanax. Blood pressure is managed with Nifedical and Clonidine; BP today 118/72. She has done better with her pain control and has been compliant with the narcotic contract that has included pill counts and drug screens.
Spent 50% in counseling and discussing health promotion strategies and disease prevention.(Tr. 421). Indeed, by October 2018, Dr. Pugh's HPI indicated that the plaintiff's medications had “controlled her pain,” and, by April 2019, Dr. Pugh indicated that the medication regimen had “almost completely controlled [the plaintiff's] pain” (Tr. 433, 454). As noted by the ALJ, these treatment records from Dr. Pugh indicated that although the plaintiff had ongoing chronic pain, it was well-controlled by her pain medications (Tr. 17).
As noted, the plaintiff has not asserted that the ALJ failed to address any of the other consistency factors as set forth by SSR 16-3p. Nevertheless, the undersigned notes that the ALJ provided an analysis of the plaintiff's subjective complaints based upon the factors provided for in SSR 16-3p. As such, based upon the foregoing, the ALJ's subjective complaints analysis is supported by substantial evidence and should be affirmed.
Medical Source Statements
The plaintiff also argues that the ALJ erred in his evaluation of opinion evidence (doc. 10 at 23-36). For applications filed on or after March 27, 2017, such as the plaintiff's herein, a new regulatory framework for considering and articulating the value of medical opinions has been established. See 20 C.F.R. § 404.1520c; see also 82 Fed.Reg. 5844-01,2017 WL 168819 (revisions to medical evidence rules dated Jan. 18, 2017, and effective for claims filed after Mar. 27, 2017). Most notably, the new regulations no longer require that special significance be given to opinions by a claimant's treating physician. See 20 C.F.R. § 404.1527 (noting that the treating physician rule only applies to claims filed before March 27, 2017). Indeed, the ALJ is not required to defer to or give any specific weight to medical opinions. Id. at § 404.1520c(a). Instead, the ALJ should consider and articulate in the decision how persuasive each medical opinion is based upon the factors of: (1) supportability; (2) consistency; (3) relationship with the claimant; (4) specialization; and (5) other factors that tend to support or contradict a medical opinion. Id. § 404.1520c(b), (c). Supportability and consistency are the most important of the factors for consideration, and the ALJ is required to explain how he considered the supportability and consistency factors in evaluating opinion evidence. Id. § 404.1520c(a), (b)(2). An ALJ may, but is not required to, explain how the remaining factors were considered. Id. § 404.1520c(b)(2). In evaluating the supportability of an opinion, “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) ... the more persuasive the medical opinions . . . will be.” Id. § 404.1520c(c)(1). In evaluating the consistency of an opinion, “[t]he more consistent a medical opinion(s) . . . is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) . . . will be.” Id. § 404.1520c(c)(2).
The plaintiff alleges that the ALJ failed to evaluate or failed to appropriately evaluate the following: (1) Steven C. Poletti, M.D., opinion dated August 20, 2012 (Tr. 527); (2) Dr. Pugh opinion dated September 10, 2012 (Tr. 864-65); (3) Dr. Pugh opinion dated December 14, 2015 (Tr. 591-93); (4) Dr. Pugh opinion dated March 6, 2017 (Tr. 639-41); (5) Dr. Pugh treatment record dated June 13, 2018 (Tr. 421-23); (6) Dr. Pugh opinion dated September 8, 2020 (Tr. 491); (7) Dr. Pugh opinion dated July 12, 2021 (Tr. 1055); (8) Jeffrey Chase Yonce, M.D., opinion dated December 29, 2020 (Tr. 1044-52); (9) Ryan Aprill, PA-C, opinion dated December 31, 2012 (Tr. 526); and (10) Justin Swain, PA-C, opinion dated April 22, 2013 (Tr. 517). As an initial matter, although the plaintiff's brief summarizes (5) Dr. Pugh's treatment record, as well as (9) Mr. Aprill and (10) Mr. Swain's opinions, her brief contains no further argument that these were medical opinions under the regulations or were inappropriately considered. As such, the undersigned will only address the plaintiff's assertions with respect to the remaining opinions from Drs. Poletti, Pugh, and Yonce.
Dr. Poletti
On August 20, 2012, Dr. Poletti's treatment notes indicated that he was certain that the plaintiff had “obvious” objective findings of disability. Dr. Poletti noted that the plaintiff has decreased ROM in her spine, weakness in her legs, and that her pain medication interfered with her ability to retrain for more sedentary activity. He opined that the plaintiff should not be sitting for any periods of time, bending, twisting, pushing, pulling, doing any kind of lifting, or doing any prolonged driving. Dr. Poletti also opined that the plaintiff met the definition for permanent Social Security disability (Tr. 527).
The ALJ considered the opinion by Dr. Poletti and found it both remote and not persuasive, noting:
This is not persuasive in light of the [plaintiff's] amended alleged onset date, and the supporting evidence is so remote in time. Furthermore, this opinion evidence is not consistent with the relevant medical evidence from the alleged onset date to the date last insured. In particular, there is no evidence of impairment secondary to use of narcotic pain medications.(Tr. 18-19).
The plaintiff asserts that the ALJ erred in finding Dr. Poletti's opinion not persuasive because the plaintiff's complaints and treatment have remained constant and because the ALJ did not identify what evidence conflicted with Dr. Poletti's opinion (doc. 10 at 36). The undersigned disagrees. First, as noted by the ALJ, Dr. Poletti's opinion occurred years before the plaintiff's alleged onset date, and while the plaintiff argues that her “complaints” and “treatment” have been consistent since she treated with Dr. Poletti, the plaintiff provided no reference to record evidence in support of her assertion. Further, with respect to medication side effects of narcotics opined as disabling by Dr. Poletti, the ALJ noted that Dr. Poletti's opinion was not consistent with the record evidence because the plaintiff specifically denied any side effects from her medication (Tr. 17, 19). Moreover, the ALJ noted that the plaintiff's treatment records largely indicated that she had normal motor strength in her upper and lower extremities (Tr. 17), which is not consistent with Dr. Poletti's notation that the plaintiff had a neurological deficit and weakness in her legs (Tr. 18-19, 527). In light of the foregoing, the undersigned finds that substantial evidence supports the ALJ's determination that Dr. Poletti's opinion was not persuasive.
Dr. Pugh
As noted above, Dr. Pugh provided numerous opinion forms for the plaintiff, although the majority of them fall outside of the relevant period (Tr. 421-23, 491,591-93, 639-41, 864-65, 1055). On September 10, 2012, Dr. Pugh completed a medical source statement for the plaintiff and indicated that he had been treating the plaintiff since 2011. On the form, Dr. Pugh indicated that the plaintiff had facet hypertrophy at ¶ 5/S1, back pain, chronic pain syndrome, anxiety, and muscle spasm. Dr. Pugh did not mark how many hours the plaintiff could sit, stand, or walk, but indicated that the plaintiff could use her upper extremities for simple grasping and fine manipulation, but not pushing or pulling. The plaintiff likewise could not use her feet for operating foot controls and could never lift or carry any weight. The plaintiff could also never bend, squat, crawl, climb, or reach above shoulder level. The plaintiff could not be exposed to dust, fumes, gases, unprotected heights, moving machinery, marked changes in temperature and humidity, and could not drive automotive equipment. Dr. Pugh opined that the plaintiff could engage in no work. The plaintiff would miss work more than three times per month. The plaintiff's fatigue, weakness, or pain would interfere with her attention and concentration frequently or constantly, and the plaintiff would need to take unscheduled breaks during the day (Tr. 864-65).
Three years later, on December 14, 2015, Dr. Pugh completed another medical source statement for the plaintiff. In this statement, Dr. Pugh indicated that he had been treating the plaintiff since 2012 for facet syndrome and chronic lower back pain. The plaintiff's impairment was expected to last for at least twelve months, she was not a malingerer and did not require the use of an assistive device. The plaintiff could sit, stand, and walk for four hours in an eight-hour day, and she would need to be able to shift positions at will. The plaintiff could occasionally lift less than ten pounds, rarely lift ten pounds, and never lift twenty or fifty pounds. The plaintiff could never twist, crouch/squat, or climb ladders, but could rarely stoop (bend) and occasionally climb stairs. The plaintiff had no problem with reaching, handling, or fingering. The plaintiff suffered from anxiety, and her impairments were reasonably consistent with the limitations opined by Dr. Pugh. The plaintiff's pain or other symptoms would constantly interfere with the attention and concentration needed to perform simple work tasks, and the plaintiff would only be capable of low stress jobs. The plaintiff's impairments would cause her to miss more than four days per month (Tr. 591-93).
On March 6, 2017, two years later, Dr. Pugh completed another medical source statement for the plaintiff. Dr. Pugh indicated that he had been treating the plaintiff for more than seven years for degenerative joint disease and spinal stenosis. The plaintiff's prognosis was degenerating, she was not a malingerer, and her impairments were expected to last more than twelve months. The plaintiff would require the use of an assistive device. The plaintiff could sit, stand, and walk for zero to two hours in an eight-hour day, and she needed to be able to shift positions at will. The plaintiff could rarely lift and carry less than ten pounds and never lift ten, twenty, or fifty pounds. The plaintiff could never twist, stoop (bend), crouch/squat, climb ladders, or climb stairs. The plaintiff would only be able to grasp, turn, or twist objects 5% of the workday. The plaintiff was limited to fine manipulation and reaching for 5% of the workday. The plaintiff had depression and anxiety, and her impairments were reasonably consistent with the limitations in his evaluation. The plaintiff's pain or other symptoms would constantly interfere with the plaintiff's attention and concentration for simple work tasks, and she was incapable of even “low stress” jobs. The plaintiff's impairments would cause her to miss more than four days per month (Tr. 639-41).
Three years later, on September 8, 2020, Dr. Pugh completed a functional capacity questionnaire for the plaintiff. Dr. Pugh noted that he had been treating the plaintiff since 2010 for spinal stenosis, discitis, and spinal fusion. The plaintiff could sit, stand, and walk zero to two hours in an eight-hour day. She could occasionally lift less than ten pounds, rarely lift ten pounds, and never lift twenty or fifty pounds. The plaintiff could rarely finger, grasp, handle, stoop (bend), or crouch. The plaintiff's pain would frequently interfere with her attention and concentration to complete simple work tasks. The plaintiff had impaired sleep, depression, anxiety, muscle weakness, and reduced ROM and would miss more than four days per month (Tr. 491).
Dr. Pugh then filled another functional capacity questionnaire out on July 12, 2021. Dr. Pugh noted that he had treated the plaintiff since 2006 for spinal stenosis, degenerative disc disease, and degenerative joint disease. The plaintiff could sit, stand, and walk for zero to two hours in an eight-hour day, but would have to sit at an angle. The plaintiff could rarely lift less than ten pounds or ten pounds, and never lift twenty or fifty pounds. The plaintiff could never stoop (bend) or crouch, but could rarely finger, grasp, and handle. The plaintiff's pain would interfere with attention and concentration needed to perform simple work tasks frequently. The plaintiff had impaired sleep, depression, anxiety, sensory loss, muscle weakness, and reduced ROM. The plaintiff's impairments would cause her to miss more than four days per month (Tr. 1055).
The ALJ considered the opinions by Dr. Pugh and did not find them persuasive, noting:
[Dr. Pugh's] check-the-box forms contain almost no explanation and are not persuasive. Furthermore, these extreme limitations are simply inconsistent with the objective medical evidence and the [plaintiff's] treatment history. It is Dr. Pugh's own treatment records that document that the [plaintiff's] symptoms are well controlled with medication (Ex. C1F; C2F; C33F). In addition, there is simply no medical evidence that the [plaintiff] can rarely finger, grasp, or handle, as stated by Dr. Pugh. This suggests that Dr. Pugh is not putting the appropriate amount of thoughtfulness into his opinions, rendering them less persuasive.(Tr. 18).
The plaintiff argues that the ALJ erred in finding Dr. Pugh's opinions not persuasive because the ALJ improperly characterized the opinions as check-box forms, Dr. Pugh's opinions were internally consistent, and the ALJ essentially “played doctor” with respect to the manipulation limitations (doc. 10 at 35-36). The court disagrees. As an initial matter, courts in this circuit have recognized that check-box forms, such as the one at issue here, have “limited probative value.” See Freeman v. Colvin, C/A No. 7:14-cv-00199, 2015 WL 5056734, at *4 (W.D. Va. Aug. 26, 2015) (citing Leonard v. Astrue, C/A No. 2:11-cv-00048, 2012 WL 4404508, at *4 (W.D. Va. Sept. 25, 2012); See also Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir.1993) (“Such check-the-box assessments without explanatory comments are not entitled to great weight, even when completed by a treating physician.”)). Indeed, although the plaintiff is correct that Dr. Pugh's opinion forms include a list of diagnoses and symptoms, as noted by the ALJ, there is no connection on Dr. Pugh's forms between the diagnoses/symptoms and the opined limitations (see Tr. 421-23, 491,591-93, 639-41, 864-65, 1055). Interestingly, Dr. Pugh's opinions inconsistently report when he began treating the plaintiff, indicating that he began treating the plaintiff either in 2006 (Tr. 1055), 2010 (Tr. 491,639), 2011 (Tr. 864), or 2012 (Tr. 591). Additionally, as recognized by the ALJ, although Dr. Pugh's opinions were similar in nature, they were not supported by his treatment records. For example, Dr. Pugh opined that the plaintiff would be limited (to varying degrees) in her ability to use foot controls or use her upper extremities; however, examination findings during every appointment with Dr. Pugh during the relevant period indicated that while the plaintiff's spine was tender to palpation, she had full ROM in her musculoskeletal system and normal motor strength in her upper and lower extremities (Tr. 421-22, 424-45, 427-28, 430-31,433-34, 436-37, 439-40, 442-43, 460-61). Even those records following the plaintiff's date last insured from Dr. Pugh contain the same examination findings (Tr. 445-46, 448-49, 451-52, 454-55, 457-58, 463-64, 466-67, 469-70, 473-74, 476-77, 478-80, 482-83, 485-86, 488-89, 1057-58, 1060-61). As noted by the ALJ, these examination findings do not support Dr. Pugh's severely limited opinions regarding the plaintiff's functioning.
Further, as noted by the ALJ, Dr. Pugh's opinions were not consistent with other record evidence. For example, x-rays completed well past the date last insured by Adam Voorhees, M.D., noted that the plaintiff's lumbar spine likely had “transitional lumbosacral vertebral anatomy with postsurgical changes” as well as “[f]acet arthrosis lower lumbar spine with question component of underlying congenital canal narrowing as well” and “[d]egenerative change also present at the right greater [than] left sacroiliac joints” (Tr. 1030-31). Likewise, Dr. Vorhees noted that the plaintiff's cervical spine had “[d]egenerative disc disease and facet arthrosis” with “disc disease most pronounced at ¶ 6-7. Slight reversal of normal cervical lordosis may be due to muscle spasm. No definite acute osseous injury. Consider MRI for further assessment if needed” (Tr. 1032). These objective findings appear inconsistent with Dr. Pugh's opinions that the plaintiff's functioning was so limited that she could, at best, rarely lift ten pounds. Further, Dr. Pugh's opinions are not consistent with examination findings by Jeffrey Yonce, M.D., who completed a consultative examination of the plaintiff on December 29, 2020 (Tr. 1042-52). For example, Dr. Yonce noted that the plaintiff could shop; travel without a companion for assistance; walk without using a wheelchair, walker, two canes, or two crutches; could walk a block at a reasonable pace on rough or uneven surfaces; use public transportation; prepare a simple meal and feed herself; care for her personal hygiene; and sort, handle, or use paper/files (Tr. 1052). Dr. Yonce further noted that the plaintiff had 5/5 grip strength in her upper and lower extremities, 5/5 motor strength in her upper and lower extremities (although she had 4/5 motor strength in her right lower extremity), and had a stable - albeit stiff - gait (Tr. 1046). These findings, as noted by the ALJ, were likewise inconsistent with Dr. Pugh's opinions. In light of the foregoing record evidence, the undersigned finds that the ALJ's finding that Dr. Pugh's opinions were not persuasive is supported by substantial evidence and should be affirmed.
Dr. Yonce
As noted above, on December 29, 2020, well after the plaintiff's date last insured, Dr. Yonce performed a consultative examination of the plaintiff (Tr. 1042-52). The plaintiff reported to Dr. Yonce that she could dress and feed herself and sit or stand without difficulty for ten minutes. She drove to the examination and could drive as needed and reported being able to do some common household chores (folding clothes and cooking). Upon examination, the plaintiff had normal ROM in her lumbar spine lateral flexion; her bilateral shoulders; her bilateral elbows; her bilateral wrists; her bilateral ankles; and in hip abduction, adduction, internal rotation, external rotation, and extension. The plaintiff had slight ROM deficits as follows: cervical flexion 40° (normal 50°), cervical extension 40° (normal 50°), lateral flexion right 45° left 35° (normal 45°), cervical rotation right 45° left 45° (normal 80°), lumbar flexion 70° (normal 90°), lumbar extension 15° (normal 25°), knee flexion 110° (normal 150°), and hip flexion 80° (normal 100°). The plaintiff had normal grip strength, fine manipulation, and gross manipulation in her bilateral hands with no Phalens or Tinel's. The plaintiff had no atrophy in her upper or lower extremities and had 5/5 strength to her bilateral upper extremities and her left lower extremity as well as 4/5 strength to her right lower extremity. The plaintiff had an overall stable gait with stiff leg, and squat was difficult to complete secondary to back pain. The plaintiff's tandem walk was normal and could do heel walk on left foot but not the right. The plaintiff could not toe walk.
Dr. Yonce then completed a medical source statement check-box form regarding the plaintiff's functioning. In the form, Dr. Yonce indicated that the plaintiff could only lift and carry up to ten pounds frequently and never lift and carry more than ten pounds. The plaintiff could sit/stand/walk eight hours at one time without interruption and in an eighthour day, the plaintiff could sit four hours, stand one hour, and walk one hour. The plaintiff did not require the use of a cane to ambulate and could walk 1/4 mile without a cane. The plaintiff could frequently reach in all directions and overhead with her bilateral upper extremities; could continuously handle, finger, and feel with her bilateral upper extremities, and could occasionally push/pull with her bilateral upper extremities. The plaintiff could frequently operate foot controls with her bilateral feet. The plaintiff could occasionally balance, but never climb ramps, stairs, ladders, scaffolds, stoop, kneel, crouch, or crawl. The plaintiff's hearing and vision were not affected by her impairments. The plaintiff could never be exposed to unprotected heights; occasionally be exposed to moving mechanical parts or operating a motor vehicle; and frequently be exposed to humidity and wetness, dust, odors, fumes, pulmonary irritants, extreme cold, extreme heat, and vibrations. The plaintiff could work with moderate (office) noise. The plaintiff could perform activities like shopping; travel without a companion for assistance; ambulate without a wheelchair, walker, two canes, or two crutches; walk a block at a reasonable pace on rough or uneven surfaces; use standard public transportation; prepare simple meals and feed herself; care for her own personal hygiene; and sort, handle, or use paper/files. The plaintiff could not climb a few steps at a reasonable pace with the use of a single hand rail (Tr. 1042-52).
The ALJ considered the opinion by Dr. Yonce and found it not persuasive, noting:
For the proposed limitations, Dr. Yonce simply checked off boxes and he offered no explanation for any of the proposed limitations. At no point did Dr. Yonce tie any of the proposed limitations to objective findings. Therefore, these opinions are not adequately supported. Furthermore, the proposed limitations are not supported by the accompanying examination findings. On examination, the [plaintiff] had some limited strength in the right leg, but her upper extremity strength was normal (Ex. C31F/3-5). Nevertheless, Dr. Yonce stated that the [plaintiff] could frequently operate foot controls but only occasionally push/pull with the hands (Ex. C31F/9). The [plaintiff] demonstrated limited squatting on exam, but Dr. Yonce found that the [plaintiff] could never kneel, crouch, or crawl (Ex. C31F/10). In addition, the proposed limitations are not internally consistent. Someone with the extreme exertional and postural limitations proposed by Dr. Yonce would likely be unable to shop, travel, ambulate without an assistive device, walk a block at a reasonable pace on rough or uneven surfaces, use public transportation, or prepare meals. Finally, the proposed limitations, which would preclude even sedentary
work, are simply inconsistent with the relevant medical evidence of record. As the [plaintiff's] pain is adequately controlled with medication, her symptoms do not preclude light or sedentary work and they do not preclude virtually all postural activities.(Tr. 18).
The plaintiff argues that the ALJ erred in finding Dr. Yonce's opinion not persuasive because the ALJ improperly characterized the opinion as including a check-box form and the ALJ essentially “played doctor” in finding the limitations internally inconsistent (doc. 10 at 33-34). The court disagrees. As noted above, check-box forms have limited probative value. Freeman, 2015 WL 5056734, at *4. Indeed, although the plaintiff is correct that Dr. Yonce completed the check-box forms along with a narrative regarding the plaintiff's functioning, as noted by the ALJ, there is no explanation on the form completed by Dr. Yonce connecting his narrative report with the check-box opined limitations (see Tr. 1042-52). Further, the plaintiff asserts that the ALJ was improperly “playing doctor,” but appears to miss that the ALJ was instead evaluating the supportability and consistency of Dr. Yonce's opinion - as required by the regulations. See 20 C.F.R. § 404.1520c. For example, as recognized by the ALJ, Dr. Yonce's opinion that the plaintiff could not engage in even sedentary work is not consistent with his opinion that the plaintiff could shop, travel alone, ambulate without an assistive device, walk a block at a reasonable pace, use public transportation, prepare meals, care for her personal hygiene, and sort/handle/use paper and files (Tr. 18). Likewise, as noted by the ALJ, Dr. Yonce's objective findings - noting only small deficits in the plaintiff's ROM and motor strength - do not support the extreme limitations he opined.
The ALJ likewise noted that Dr. Yonce's opinion regarding the plaintiff's upper and lower extremity limitations was not persuasive because it was inconsistent with other record evidence. For example, as outlined above, Dr. Pugh's examination findings regularly noted that the plaintiff's spine was tender to palpation, but she had full ROM in her musculoskeletal system and normal motor strength in her upper and lower extremities (Tr. 421-22, 424-45, 427-28, 430-31, 433-34, 436-37, 439-40, 442-43, 445-46, 448-49, 451-52, 454-55, 457-58, 460-61, 463-64, 466-67, 469-70, 473-74, 476-77, 478-80, 482-83, 485-86, 488-89, 1057-58, 1060-61). Likewise, Dr. Pugh's records during the relevant period indicated that the plaintiff's pain was well-controlled by medications (Tr. 421, 424, 427, 430, 433, 436, 439, 442, 445, 448, 451). Indeed, on some occasions, Dr. Pugh even noted that the plaintiff's medication regimen had “almost completely controlled” the plaintiff's pain (Tr. 454, 457, 460, 485, 488, 1057, 1060). In light of the foregoing, the undersigned finds that substantial evidence supports the ALJ's determination that Dr. Yonce's opinion was not persuasive.
As outlined above, the ALJ appropriately explained his findings regarding the persuasiveness of the opinions of Dr. Poletti, Dr. Pugh, and Dr. Yonce, as required by the regulations. This court should not disturb the ALJ's weighing of the medical opinion evidence of record absent some indication the ALJ dredged up “specious inconsistencies.” Dunn v. Colvin, 607 Fed.Appx. 264, 267 (4th Cir. 2015) (citing Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992)). As such, the undersigned finds that the ALJ's evaluation of the opinion evidence is based upon substantial evidence, without legal error, and should be affirmed.
CONCLUSION AND RECOMMENDATION
The Commissioner's decision is based upon substantial evidence and is free of legal error. Now, therefore, based upon the foregoing, IT IS RECOMMENDED that the Commissioner's decision be affirmed.
IT IS SO RECOMMENDED.
The attention of the parties is directed to the important notice on the following page.
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 250 East North Street, Room 2300 Greenville, South Carolina 29601
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).