Opinion
C/A No.: 1:19-2793-MGL-SVH
07-24-2020
Eartha Fancina Green, Plaintiff, v. Andrew M. Saul, Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
This appeal from a denial of social security benefits is before the court for a Report and Recommendation ("Report") pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether he applied the proper legal standards. For the reasons that follow, the undersigned recommends that the Commissioner's decision be affirmed. I. Relevant Background
A. Procedural History
On May 5, 2015, Plaintiff protectively filed applications for DIB and SSI in which she alleged her disability began on January 1, 2007. Tr. at 15. She subsequently amended her alleged onset date to June 28, 2013. Tr. at 36. Her applications were denied initially and upon reconsideration. Tr. at 99-102, 104-08. On February 1, 2018, Plaintiff had a hearing before Administrative Law Judge ("ALJ") Tammy Georgian. Tr. at 34-74 (Hr'g Tr.). The ALJ issued an unfavorable decision on August 1, 2018, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 12-33. Subsequently, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. Tr. at 1-6. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on October 1, 2019. [ECF No. 1].
The record does not contain copies of Plaintiff's May 5, 2015 applications, but, instead, contains copies of a prior application completed on April 8, 2014. See Tr. at 167-74, 175-79. That application was denied on July 9, 2014. See Tr. at 76.
B. Plaintiff's Background and Medical History
1. Background
Plaintiff was 58 years old at the time of the hearing. Tr. at 15, 27. She obtained an associate degree. Tr. at 39. She alleges she has been unable to work since June 28, 2013. Tr. at 36.
2. Medical History
On June 21, 2012, Plaintiff presented to Erin Watrobski, PA ("PA Watrobski"), for an orthopedic evaluation of bilateral knee pain. Tr. at 287. PA Watrobski indicated she had previously evaluated Plaintiff in October 2011 and had recommended weight loss to manage her knee pain and prepare for total knee arthroplasty. Id. Plaintiff reported achiness, throbbing, and stiffness after prolonged immobility. Id. She indicated she had participated in physical therapy, but did not perform home exercises. Id. PA Watrobski observed the following on examination of the knees: no ecchymosis or redness; mild bilateral effusions; full range of motion ("ROM") without pain; moderate crepitus; no laxity of the collateral ligaments with varus or valgus stress; diffuse medial tenderness to palpation ("TTP"); negative Lachman's and McMurray's signs; negative grind and apprehension signs of the patellofemoral joint; and normal examinations of the upper extremities, cervical spine, and lumbar spine. Tr. at 287-88. She assessed knee pain and osteoarthritis associated with severe varus degenerative joint disease ("DJD") of the bilateral knees. Tr. at 288. She emphasized the importance of weight loss and provided information about a weight loss surgery information session. Id.
Plaintiff presented to her primary care physician William E. Wilson, M.D. ("Dr. Wilson"), for diabetes follow up on November 12, 2012. Tr. at 338. Dr. Wilson described Plaintiff's diabetes as mild with adequately-controlled blood sugars. Id. He noted 1+ pitting edema in Plaintiff's lower extremities. Tr. at 339. Plaintiff's hemoglobin A1c was elevated at 10.2%. Id. Dr. Wilson assessed uncomplicated diabetes, but noted Plaintiff needed "much better control." Id.
On April 5, 2013, Plaintiff reported high blood pressure and swelling in her legs that did not decrease with elevation. Tr. at 335. She noted her blood sugar was elevated and admitted she was not following a diabetic diet. Id. She indicated she was trying to lose weight, but had been unable to exercise. Id. She said she could not stand for longer than five hours without significant pain and feared she would be unable to find a job that would accommodate her need to sit. Id. Her blood pressure was elevated at 170/110 mm/Hg. Id. Dr. Wilson observed 2+ pitting edema in Plaintiff's lower extremities. Id. He referred Plaintiff to specialists for evaluations for sleep apnea and bariatric surgery. Tr. at 336.
On April 18, 2013, Plaintiff presented to orthopedist Kenneth Caldwell, M.D. ("Dr. Caldwell"), with a complaint of bilateral knee pain that occurred with walking short distances of a block or less. Tr. at 284. Dr. Caldwell noted Plaintiff "ha[d] not been consistent with weight loss efforts or exercise programs" and had received "minimal benefit from injections in the past." Id. He observed no effusion, erythema, ecchymosis, or significant swelling and relatively smooth gait pattern. Id. He noted moderate varus alignment, diffuse medial tenderness, full extension, flexion to 115 degrees, stable ligaments, and negative McMurray's and patella grind tests. Id. He stated Plaintiff was morbidly obese, weighing 284 pounds and having a body mass index ("BMI") of 44.48. Id. He assessed osteoarthritis with severe varus DJD of the bilateral knees and knee pain. Id. He noted x-rays showed "marked varus tricompartmental degenerative arthritis with her being bone-on-bone in the medial compartment of both knees with marginal osteophytes and severe patellofemoral disease." Tr. at 285. Plaintiff reported her knee pain was affecting her activities of daily living ("ADLs") and work. Id. She desired knee arthroplasty, but Dr. Caldwell indicated her morbid obesity presented a significant risk factor. Id. Dr. Caldwell recommended Plaintiff be evaluated by a joint replacement specialist. Id.
On April 25, 2013, Plaintiff informed Dr. Wilson that the orthopedist had recommended knee replacement surgery, but would not proceed until she reduced her weight. Tr. at 332. She complained of feeling unmotivated. Id. Dr. Wilson noted Plaintiff's diabetes was not controlled because she was not paying attention to her diet. Id. He advised Plaintiff to work on weight reduction, monitor her blood sugar, and decrease her salt intake. Tr. at 333. He increased her insulin to 40 units in the morning and 40 units in the evening. Id.
Plaintiff underwent nocturnal polysomnography that produced normal results on May 2, 2013. Tr. at 346-47.
On May 13, 2013, Dr. Wilson indicated Plaintiff's diabetes was better controlled. Tr. at 329. He noted Plaintiff was eating fewer carbohydrates and high-fat foods and reading nutritional labels. Id. Plaintiff's blood sugar had decreased from 318 to 110 mg/dL. Id. However, her hemoglobin A1c remained elevated at 10.7%. Tr. at 330.
Plaintiff presented to the emergency room at Roper St. Francis Healthcare on June 30, 2013, after injuring her foot. Tr. at 497. X-rays showed a transverse nondisplaced fracture at the base of the second metatarsal. Tr. at 501. Christopher Moe, M.D., assessed a right foot fracture and released Plaintiff on crutches pending follow up with Dr. Caldwell. Tr. at 498.
On July 2, 2013, Dr. Caldwell observed diffuse dorsal edema, significant erythema, limited forefoot motion, and localized tenderness. Tr. at 281-82. He recommended a hard-soled shoe and protected weight bearing using crutches. Tr. at 282. He noted Plaintiff had presented for evaluation for total knee arthroplasty to Waddell "Bubba" Gilmore, M.D. ("Dr. Gilmore"), who had determined she was not a candidate for the surgery due to her obesity. Tr. at 281.
Plaintiff reported improved pain on July 23, 2013. Tr. at 279. Dr. Caldwell observed Plaintiff to ambulate with an antalgic gait. Id. He noted limited forefoot motion and localized tenderness to Plaintiff's right foot, but stated dorsal edema had essentially resolved. Id. He continued Plaintiff in a hard-soled shoe until her next visit. Tr. at 280.
On August 13, 2013, Plaintiff complained of edema in her bilateral legs that was worse on the left than the right. Tr. at 326. She reported she had discontinued Exforge because she thought it was causing the edema. Id. She admitted she had not made appointments with the bariatric doctor or the endocrinologist. Id. Dr. Wilson observed 2+ pitting edema of Plaintiff's lower extremities. Id. He prescribed Tenex and Guanfacine HCl and refilled Diovan for hypertension. Tr. at 326-27. He also refilled Humalog 75/25 and discontinued Exforge HCT. Tr. at 327. He encouraged Plaintiff to work on weight loss and follow up with the endocrinologist. Id.
On August 27, 2013, Plaintiff reported her pain had improved through treatment with a wooden-bottomed shoe. Tr. at 276. She endorsed some edema in her bilateral feet. Id. Dr. Caldwell observed Plaintiff to have a smooth gait pattern and minimal dorsal edema in both feet. Id. Examination of the right foot revealed limited forefoot motion at the tarsometatarsal articulations, intact gross sensation, 5/5 muscle strength, some localized tenderness, no crepitation, and limited motion of the metatarsophalangeal ("MTP") joint. Id. He indicated x-rays showed anatomic alignment of the transverse fracture of the base of the second metatarsal and degenerative changes at the great toe MTP joint. Id. Dr. Caldwell authorized Plaintiff to resume normal shoe wear and to gradually get back into a workout regimen for weight loss and strength training. Tr. at 277.
On April 11, 2014, Plaintiff reported she was unable to afford test strips to monitor her blood sugar. Tr. at 468. Dr. Wilson referred her to a health care clinic on John's Island. Id.
Plaintiff presented to Bonnie Treado, DNP, FNP-C ("NP Treado"), at St. James-Santee Family Health Center to establish treatment on May 8, 2014. Tr. at 418. She complained of elevated blood pressure, despite having taken her medication. Id. She endorsed headaches that occurred off and on, pain in her back and bilateral knees, and a history of diabetes and hypertension. Id. She indicated she was "trying to save her insulin" and did not take her medication as ordered. Id. Plaintiff's blood glucose was elevated at 223 mg/dL and her blood pressure was 183/105 mm/Hg initially and 168/90 mm/Hg on a second check. Tr. at 419. She weighed 301.4 pounds and had a BMI of 47.2 kg/m.² Id. NP Treado administered a Clonidine injection for hypertension and instructed Plaintiff to fill her prescription for blood pressure medication that day. Tr. at 420. She provided Plaintiff samples of Humalog and instructed her to increase her dose by five units twice a day. Id. She encouraged Plaintiff to apply for prescription assistance. Id.
On June 9, 2014, Plaintiff's blood pressure was much better-controlled. Tr. at 414. She reported "trying to save" her insulin, and her blood sugar was elevated because she did not take it. Id. NP Treado observed abnormal monofilament in the ball of Plaintiff's right foot and her left great, middle, and fifth toes, as well as dry skin and thick, mycotic nails. Tr. at 415. She completed a medical statement form for a City of Charleston Taxi Cab/Pedicab Driver's Permit in which she indicated Plaintiff had no physical or mental conditions that would prevent her from safely operating a taxi cab or limousine. Tr. at 383.
Plaintiff complained to Dr. Wilson of numbness and tingling in her bilateral feet on August 11, 2014. Tr. at 357. Her weight had decreased by seven pounds to 301 pounds. Id. Her blood pressure was elevated at 160/90 mm/Hg. Id. Dr. Wilson noted decreased vibratory sensation in Plaintiff's feet. Id. He referred Plaintiff to a podiatrist for diabetic shoes and inserts. Tr. at 358.
Plaintiff followed up with NP Treado the same day. Tr. at 408. She complained of left foot arch drop and bilateral numbness and tingling from her calves to her feet. Id. NP Treado noted Plaintiff was not taking medication for her bilateral knee pain. Tr. at 409. She stated Plaintiff's blood pressure and hemoglobin A1c were much better-controlled. Id. She prescribed a statin medication. Id. Plaintiff reported "doing better" in taking medication and attempting to eat more fish and vegetables and less junk food. Id. She denied exercising, but had lost five pounds. Id. NP Treado observed abnormal monofilament changes to Plaintiff's bilateral feet, as well as dry skin and thick, mycotic nails. Tr. at 410.
Plaintiff presented to podiatrist Charles J. Gudas, D.P.M. ("Dr. Gudas"), on August 26, 2014. Tr. at 362. She complained of a fallen arch and tingling and pain in her bilateral feet. Id. Dr. Gudas observed the following: onychomycosis, tinea pedis, subtalar synovitis, calcaneal valgus and posterior tibial dysfunction of the rearfoot; hallux limitus and Morton's neuroma of the third interspaces of the bilateral forefeet; and diminished protective threshold. Tr. at 363-64. X-rays of Plaintiff's bilateral feet showed decreased bilateral calcaneal pitch with bilateral inferior heel spurs. Tr. at 364. Dr. Gudas assessed diabetic onychomycosis, Morton's neuroma of the bilateral third interspaces, bilateral subtalar synovitis, and hallux limitus. Id. He provided a left foot ankle brace to prevent further deterioration and collapse of her foot and ankle and encouraged her to wear it with a sturdy shoe as much as possible. Id.
Plaintiff was concerned about elevated blood pressure and complained of numbness and tingling in her bilateral legs on November 13, 2014. Tr. at 404. Her blood pressure was elevated at 171/106 and 161/111 mm/Hg during in-office checks. Tr. at 405. NP Treado observed 1+ pitting edema in Plaintiff's bilateral lower extremities and abnormal monofilament in the ball of her right foot and the left great, middle, and fifth toes. Tr. at 405-06. She instructed Plaintiff to stop Verapamil and Crestor, increased Hydrochlorothiazide, and prescribed Caduet, a combination of low-dose Amlodipine and a statin. Tr. at 406.
On December 15, 2014, Plaintiff was concerned that her feet and legs felt cold all the time. Tr. at 400. She reviewed her home blood pressure log with NP Treado, who noted improvement. Id. She reported her blood sugar was typically between 139 and 159 in the morning. Id. NP Treado noted Plaintiff's hemoglobin A1c had decreased, but that it needed to decrease more. Id. Plaintiff complained of swelling and soreness in her legs and chronic joint pain. Id. NP Treado observed 1+ pitting edema in Plaintiff's bilateral lower extremities. Tr. at 402. She encouraged Plaintiff to exercise for 30 minutes daily as tolerated and to lose weight. Tr. at 402, 403.
On January 28, 2015, Plaintiff presented to Howard L. Brilliant, M.D. ("Dr. Brilliant"), for a consultative exam. Tr. at 368-69. She complained of increased bilateral knee pain that was worse on the left than the right. Tr. at 368. She reported an ability to stand for 10 minutes before her pain required she sit. Id. She endorsed difficulty walking through Wal-Mart, getting out of a chair, kneeling, and squatting down. Id. She complained of occasional hand numbness consistent with carpal tunnel syndrome ("CTS"), but denied difficulty using her hands. Id. Dr. Brilliant noted Plaintiff was 5'7" tall, weighed 300 pounds, and had a BMI of 47 kg/m.² Id. He observed Plaintiff had trouble getting out of the chair, walked slowly, had an obvious limp to the left lower extremity, and could not kneel or squat. Id. He noted positive Phalen's test on the right and limited ROM of the lumbosacral spine from obesity. Id. He stated a straight-leg raising ("SLR") test was negative. Tr. at 369. He noted painful crepitus, slight flexion contraction, no effusion, and slight valgus deformities in Plaintiff's bilateral knees. Id. He stated x-rays showed severe osteoarthritic changes and bone-on-bone deformity. Id. Dr. Brilliant diagnosed obesity, diabetes, and severe osteoarthritis of the bilateral knees that was worse on the right. Id. He stated Plaintiff needed a weight loss program to prevent complications of diabetes and allow her to be more mobile. Id. He indicated Plaintiff was not a good candidate for knee replacement at her present size. Id. He recommended "a gentle exercise program using 1 to 2 canes, where she could walk 30 to 40 minutes a day . . . along with some supervised physical therapy." Id. He also indicated Plaintiff would benefit from seeing a nutritionist to help her through a weight loss program and should consider stomach stapling if that failed. Id. He wrote: "At this time she is limited to sedentary activities and would need to be able to get up from time to time to keep her knees from stiffening." Id.
On February 16, 2015, Plaintiff endorsed numbness in her right hand, but denied chest pain, dyspnea, and tingling. Tr. at 394. She reported elevated blood pressure and said she often missed insulin doses because she was trying to space them out by 12 hours. Id. She indicated she was trying to eat healthier, but was not exercising. Id. She felt down and endorsed trouble sleeping. Id. She said her legs felt swollen and were painful at night and her feet sometimes hurt and tingled. Id. NP Treado noted 1+ bilateral pitting edema in the lower extremities. Tr. at 396. She increased Plaintiff's dose of Amlodipine to target hypertension and retaught Plaintiff how to take insulin. Tr. at 397. She advised Plaintiff to buy wide shoes and use inserts and informed her that weight loss would help her illnesses. Id.
Plaintiff complained of numbness and tingling in her right hand on March 16, 2015. Tr. at 388. She indicated she was taking Elavil with no adverse effects and her mental state had improved. Id. She reported sleeping better and feeling less pain in her legs. Id. She admitted she had missed insulin doses because she was trying to space them out. Id. She endorsed leg pain, chronic joint pain, and pain and tingling in her feet. Id. NP Treado observed Plaintiff to be walking with a simple wooden cane. Id. Plaintiff weighed 314 pounds and had a BMI of 49.2 kg/m.² Tr. at 389. NP Treado noted 1+ bilateral pitting lower extremity edema and abnormal monofilament changes to the ball of Plaintiff's right foot and her left great, middle, and fifth toes. Tr. at 390.
On June 29, 2015, Plaintiff complained of a "hot feeling" in her bilateral legs at night and chest tightness that worsened when she lifted heavy objects. Tr. at 434. NP Treado noted Plaintiff was walking with a simple wooden cane and had some evidence of neuropathy in her feet. Id. Plaintiff was feeling depressed and worried, as her retirement funds were dwindling and a plumbing problem had resulted in her having no running water in her home since March. Tr. at 435. She reported she was looking for work, but could not stand for long periods. Id. NP Treado observed 1+ pitting edema in Plaintiff's bilateral lower extremities and abnormal monofilament in her bilateral feet. Id. Plaintiff's hemoglobin A1c remained elevated at 10.6%. Tr. at 437. A depression screen was consistent with moderately-severe depression. Id. NP Treado referred Plaintiff for a nuclear stress test and to a specialist for cognitive behavioral therapy. Id. She prescribed Cymbalta for depression. Id.
On July 27, 2015, state agency medical consultant Tom Brown, M.D. ("Dr. Brown"), reviewed the record and declined to assess Plaintiff's RFC, as he considered her impairments non-severe. Tr. at 80-81.
On August 6, 2015, Plaintiff presented to Paul M. Deaton, M.D. ("Dr. Deaton"), who had replaced Dr. Wilson upon retirement. Tr. at 472. She reported her blood sugar had been running in the upper 200s, but that she had not checked it over the prior three weeks because she had lost her meter. Id. She admitted that she was aware of the dietary restrictions she was supposed to follow, but found it difficult to do so. Id. Dr. Deaton observed 2+ pitting edema in Plaintiff's lower extremities and intact sensory exam. Tr. at 473. Plaintiff's blood glucose was 270 mg/dL. Tr. at 473. Dr. Deaton referred Plaintiff to internal medicine provider Cheri Franklin, M.D. ("Dr. Franklin"), for diabetes monitoring and to cardiologist John Ciccone, M.D. ("Dr. Ciccone"), as she was at high-risk for cardiovascular disease. Id.
On September 14, 2015, a nuclear stress test was normal. Tr. at 427-28.
Plaintiff presented to Richard Ulmer, M.D. ("Dr. Ulmer"), to establish care on October 28, 2015. Tr. at 466. She reported a history of diabetes with blood sugar ranging from 200 to 400 mg/dL, degenerative arthritis of the knees that caused difficulty standing, hammertoe deformities of the right foot with a history of several surgeries, obesity, and significant depression without suicidal ideation. Id. Her blood pressure was 140/85 mm/Hg and she weighed 311 pounds with a BMI of 48.70 kg/m.² Id. Her blood glucose was 198 mg/dL. Id. Dr. Ulmer observed Plaintiff to be obese, to walk with a distinct bilateral limp, to have questionable decreased filament sensation in the soles of her feet, and to have good foot pulses. Tr. at 467. He assessed hypertension, severe morbid obesity due to excess calories, diabetes without complications, major depressive disorder ("MDD"), unspecified osteoarthritis, and unspecified chest pain. Id. He stopped Caduet, continued Plaintiff's other medications, and prescribed Amlodipine Besylate 10 mg. Id.
On November 11, 2015, Dr. Ulmer reviewed a blood sugar chart that showed most of Plaintiff's fasting blood sugar readings to be below 150 mg/dL, but occasional readings as high as 230 mg/dL. Tr. at 464. He noted Plaintiff's afternoon readings ranged from 161 to 245 mg/dL. Id. Plaintiff continued to endorse left elbow pain and to feel frustrated and depressed. Id. She indicated she was unable to work because arthritis in her knees prevented her from standing. Id. Dr. Ulmer observed tenderness at Plaintiff's left elbow lateral epicondyle. Id. He noted Plaintiff was depressed, but was also able to smile and laugh spontaneously. Id. He increased Plaintiff's morning insulin to 45 units and Humalog to 40 units in the morning and evening and noted Plaintiff was scheduled for appointments to address knee pain and depression. Id.
On November 20, 2015, Charles Davis, M.D. ("Dr. Davis"), observed Plaintiff to walk with a slow antalgic gait and to demonstrate bilateral knee flexion to 80 degrees and extension to five degrees. Tr. at 502. He noted crepitus with partial squat and significant, 2+ to 3+ dependent edema from the knees to the ankles. Id. He assessed end-stage arthritis to the knees and fluid retention, prescribed Furosemide, ordered lab work, and counseled Plaintiff on diet. Id.
X-rays of Plaintiff's bilateral knees showed moderate osteoarthrosis of the medial and patellofemoral compartments and 12 degrees varus deformity to the right knee. Tr. at 493-94.
On November 23, 2015, a second state agency medical consultant, Mary Lang, M.D. ("Dr. Lang"), rated Plaintiff's impairments as non-severe based on insufficient evidence. Tr. at 92-94. State agency consultant Lisa Clausen, Ph.D. ("Dr. Clausen"), also determined the evidence was insufficient to assess Plaintiff's allegation of depression. Tr. at 92-93.
On December 4, 2015, Dr. Davis explained that Plaintiff had end-stage osteoarthritis of the bilateral knees. Tr. at 505. He noted the edema in Plaintiff's bilateral legs had slightly decreased. Id. He advised Plaintiff to continue Lasix until December 19 and then to resume Hydrochlorothiazide. Id.
On December 17, 2015, Plaintiff reported increased knee pain, particularly in her right knee, because of weight gain. Tr. at 475. PA Watrobski observed Plaintiff to be ambulatory with a cane. Id. She noted the following on exam of Plaintiff's knees: no ecchymosis or redness; mild bilateral effusions; active ROM tolerated from 10 to 90 degrees of flexion; moderate crepitus; diffuse medial TTP; no collateral ligament laxity with valgus or varus stress; negative Lachman's; and positive patellofemoral joint grind. Tr. at 475-76. She indicated no abnormal findings on examination of Plaintiff's upper extremities, cervical spine, lumbar spine, head, chest, and abdomen. Tr. at 476. She assessed osteoarthritis with severe varus DJD of the bilateral knees. Id. She instructed Plaintiff on knee exercises and recommended she focus on weight loss and diabetes management to prepare for knee replacement surgery. Id.
On December 23, 2015, Plaintiff reported her blood sugar was generally below 175 mg/dL in the mornings and afternoons, but occasionally increased to the 300s once or twice a week when she ate inappropriately. Tr. at 503. She complained of periodic numbness in the middle three fingers of her bilateral hands and slightly abnormal foot sensation. Id. Dr. Ulmer noted present pulses and no edema in Plaintiff's feet, but stated filament was not well-appreciated on her soles. Id. He stated:
Problems are well outlined and she is caught between a rock and a hard place. Needs knee surgery but can't have it done until she loses weight and can't lose weight because she can't exercise etc. Very intelligent lady a major part of [t]his depression is because of the above problems.Tr. at 504. He noted Plaintiff had considered going to classes for possible bariatric surgery, but was told that they would cost $500. Id.
On January 8, 2016, Plaintiff reported she was doing some muscle strengthening exercises that helped and was considering bariatric surgery, but wanted to try dieting first. Tr. at 506. Dr. Davis observed a right-sided limp and 1+ pitting edema in Plaintiff's bilateral shins. Id. He recommended diet, appropriate exercise, Tylenol Arthritis, and application of ice to her knees. Id.
Plaintiff presented to Thomas Steele, M.D. ("Dr. Steele"), for evaluation for depression on January 14, 2016. Tr. at 510. She reported feeling stressed and overwhelmed. Tr. at 507. She endorsed anhedonia, passive suicidal ideation, decreased sleep, and depressed mood. Id. Dr. Steele noted the following on mental status exam: clean, "ok" grooming; cooperative behavior; decreased motor activity; depressed mood; oriented times three; poor judgment and insight; decreased concentration; and memory probably within normal limits. Tr. at 508. He assessed recurrent MDD. Tr. at 509. He increased Cymbalta to 40 mg in the morning and 20 mg in the evening, discontinued Amitriptyline, and prescribed Trazodone 50 mg. Id.
On March 23, 2016, Plaintiff complained of a four-month history of numbness in her bilateral feet that occurred if she stood longer than three-to-five minutes. Tr. at 511. She reported depression because she had not worked since 2013, her car would not run reliably, and she had no water in her home. Id. Dr. Ulmer described Plaintiff as appearing depressed and obese. Id. He noted a foot exam was normal, including sensation. Id. He scheduled a follow up appointment with Dr. Steele and referred Plaintiff for possible gastric balloon placement for weight loss. Tr. at 512.
Plaintiff followed up with Dr. Steele the following day. Tr. at 513. She reported no change on the increased dose of Cymbalta, but Dr. Steele observed that she sounded "a bit more functional, and look[ed] distinctly better." Id. Plaintiff endorsed "very easy tearfulness in sad situations," but acknowledged occasionally good or "not so bad" days. Id. She continued to report poor sleep and said she had run out of Trazodone one month prior. Id. Dr. Steele noted no passive-aggressive activity, hopelessness, or suicidal ideation, and said Plaintiff was more cooperative and her mood was more reactive with occasional smiles. Id. He observed Plaintiff's gait to be labored. Id. He increased Cymbalta to 60 mg in the morning and 30 mg in the evening and increased Trazodone to 100 mg at bedtime. Id.
On May 12, 2016, Plaintiff reported she slept in the same chair she spent the day in, and Dr. Steele indicated this was very poor sleep hygiene. Tr. at 514. Plaintiff said she had been taking only 25 mg of Trazodone, but had recently increased it to 50 mg. Id. Dr. Steele observed Plaintiff's mood to be about the same and indicated her same environmental stressors remained. Id. He described Plaintiff as very passive and occasionally self-defeating in approaching aspects of her situation she could influence. Id. He noted she was obese and ambulated with a labored gait. Id. He observed depressed mood, but stated Plaintiff became significantly more reactive as the interview progressed. Id. He noted some hopelessness and decreased psychomotor activity, but no suicidal ideation. Id. He said Plaintiff needed a more active approach to issues of demoralization. Id. He advised Plaintiff to take 100 mg of Trazodone at bedtime, continue her other medications, and work on sleep hygiene. Id.
On June 23, 2016, Plaintiff reported her fasting blood sugar was typically around 160 mg/dL and her afternoon readings were around 200 mg/dL. Tr. at 515. She indicated she woke with hypoglycemic symptoms approximately twice a week and would reduce her insulin from 45 to 40 units when this occurred. Id. She stated she had attended a diabetic education class that was helpful and would try to complete the course. Id. She continued to endorse numbness upon standing. Id. She reported having discontinued the 100 mg dose of Trazodone, as she could not tolerate it, and indicated the 50 mg dose sometimes made her feel "spacey" in the morning. Id. She weighed 298 pounds, had a BMI of 46.67 kg/m,² and her blood glucose was 130 mg/dL. Id. Dr. Ulmer noted no abnormal findings on physical exam, aside from hyperpigmentation of the lower extremities. Id.
On July 7, 2016, Plaintiff informed Dr. Steele that she had been unable to tolerate Trazodone 100 mg, as she awoke two-to-three hours after taking it and felt lightheaded and confused. Tr. at 517. She admitted to sleeping during the night in the same chair she slept in during the day and watching television and using the computer during the night. Id. She said she felt better when she was out of her house visiting neighbors or the library, but made excuses as to why she could not perform similar activities more often. Id. Dr. Steele observed Plaintiff to appear sleepy and to have somewhat reactive mood, being dysphoric at times. Id. He noted reduced motor behavior, but stated this was more likely a result of habitus, as opposed to motor slowing. Id. He described Plaintiff's mood as "more demoralized than depressed" and stated changing her behavior was more likely to be successful than changing her medication. Id. He continued Cymbalta and Trazodone 50 mg and discussed behavioral strategies. Id. However, he stated it was not clear that Plaintiff would engage in the behaviors they discussed. Id.
On July 13, 2016, Dr. Ulmer reviewed Plaintiff's lab work and noted positive findings, aside from elevated low-density lipoprotein ("LDL") cholesterol for which he prescribed Simvastatin 40 mg. Tr. at 518. He stated Plaintiff's diet was "generally excellent." Id.
Plaintiff presented to Dr. Ulmer with an allergic reaction on August 9, 2016. Tr. at 521. She reported having recently started prescriptions for Flagyl and Simvastatin. Id. Dr. Ulmer administered a Depo-Medrol injection and advised Plaintiff to take Benadryl and to discontinue Flagyl and Simvastatin. Id.
Plaintiff returned to Dr. Ulmer with hives the following day. Tr. at 523. Dr. Ulmer prescribed Prednisone 60 mg for four days and instructed Plaintiff to taper her dose. Id. He changed her antihistamines to Claritin in the morning and Zyrtec in the afternoon and told her to take Ranitidine 150 mg twice a day. Id.
Plaintiff complained of problems with her insulin on October 19, 2016. Tr. at 526. She said she had been experimenting with a potato diet in her effort to lose weight for knee surgery. Id. She stated she was out of Amlodipine because her prescription assistance program failed to send it. Id. She weighed 296 pounds and had a BMI of 46.36 kg/m.² Id. Dr. Ulmer noted Plaintiff had attended three or four dietary classes, but was following none of the instructions. Id. He referred Plaintiff for one-on-one diet instruction. Id.
Plaintiff's blood glucose was elevated on December 28, 2016. Tr. at 528. Her readings had averaged 193 mg/dL over the prior 30-days, 222 mg/dL over the prior 14 days, and 319 mg/dL over the prior week. Id. She complained of discomfort in her left arm, chest, and shoulder area. Id. Dr. Ulmer observed localized left parasternal tenderness at about T4 to T6, tenderness in the left more than right shoulder, and possible tenderness around the left elbow. Id. He indicated Plaintiff's chest pain was likely musculoskeletal. Id. He ordered lab work. Tr. at 529.
On March 2, 2017, Plaintiff complained of blurred vision, "moderately bothersome" knee pain that was worse on the left, worsened CTS of the right arm and hand, peeling skin on her feet, and an elongated, draining lesion on her left groin. Tr. at 530. She indicated she was not regularly checking her blood sugar and her most recent reading had been 250 mg/dL. Id. Plaintiff weighed 314.6 pounds and had a BMI of 49.27 kg/m.² Id. Dr. Ulmer noted a resolving left groin furuncle, non-severe scaling of the heels, and stated Plaintiff had difficulty getting onto the exam table. Id. He observed good foot pulses and sensation. Id. He encouraged Plaintiff to check her blood sugar more frequently and suggested the Cares Clinic weight loss program. Tr. at 531. He referred Plaintiff to doctors for evaluation of her feet and CTS. Id.
Dr. Ulmer examined Plaintiff's feet on March 13, 2017. Tr. at 534. He assessed onychomycosis and tinea pedis. Id. He trimmed Plaintiff's nails and hyperkeratotic tissue and recommended an athlete's foot cream. Id.
On March 22, 2017, Plaintiff complained of intermittent numbness in her hands while engaging in activities like writing. Tr. at 535. She reported knee, back, and leg pain caused difficulty walking to her mailbox, such that she required two canes and had to stop to rest along the way. Id. Dr. Ulmer observed that Plaintiff was walking with difficulty with a cane and had trouble getting out of the chair and onto the exam table. Id. He stated Plaintiff was unable to bend to put on her shoes. Id. He described Plaintiff's affect as flat. Id. He was unable to elicit reflexes in Plaintiff's upper and lower extremities. Id. He noted minimal symptoms after prolonged carpal tunnel compression. Id. He indicated Plaintiff had no gross motor deficit, but decreased lower extremity sensation from her mid-leg down in a stocking distribution. Id. He observed bilateral knee motion from zero to 95 degrees without apparent discomfort or crepitation. Id. He noted good pedal pulses and capillary refill, but 2-3+ pitting edema in the bilateral legs. Id. He encouraged Plaintiff to lose weight, exercise, and control her diabetes and discussed water aerobics for beneficial exercise and to help with edema. Tr. at 536.
Plaintiff underwent a physical therapy evaluation through South Carolina Vocational Rehabilitation from June 26 through August 4, 2017. Tr. at 565. She presented with problems with ROM, strength, pain management, endurance, and gait. Id. She developed a back and knee exercise routine in physical therapy, but had some problems with pain. Id. At the time of discharge, Plaintiff had the following restrictions: never kneel, crouch, stoop, or climb; occasionally stand and walk; and frequently sit and balance. Id. Julie Jackman, PT ("PT Jackman"), concluded Plaintiff "tolerated a full work day and work week at the sedentary to light work level" and used a straight cane when it was "needed for pain." Id. She noted Plaintiff was "always pleasant and cooperative," but "pain issues continued to be noted throughout her stay." Id. She recommended Plaintiff continue the PT home exercises for her back and lower extremities. Id.
Aquatic therapist Tim Baier, CPO, noted Plaintiff "was initially fearful of water, but with staff instruction and proper flotation device she gained confidence and joined classes." Tr. at 566. He indicated Plaintiff demonstrated the ability to perform "30-40 minutes of low-intensity general aquatic exercise with occasional complaints of knee pain." Id.
Exercise physiologist Wykesha Hayes, MS, EXSC, noted Plaintiff participated in aerobic conditioning and upper body strength training and was able to exercise to her tolerance despite verbal complaints of pain. Tr. at 567.
Occupational therapist Kayla C. Wright, OTR/L ("OT Wright"), noted Plaintiff's complaints that her right wrist and hand pain caused difficulty with prolonged grip with repetitive hand tasks and heavy lifting and her left hand caused less severe problems. Tr. at 569. She issued bilateral compression gloves to Plaintiff to help manage her symptoms. Id. She also issued a reacher, sock aide, elastic shoelaces, and a shoehorn to assist in pain management with lower body reaching and dressing. Id. She provided weight loss education to assist Plaintiff in managing her weight to place less stress on her joints. Id. OT Wright stated Plaintiff "was independent following and problem solving written directions for simulated clerical work tasks" and "worked at an efficient pace and demonstrated good time management skills." Id. She indicated Plaintiff "demonstrated preexisting knowledge of basic computer operations and Microsoft Office Word." Id. She noted: "Physical activity and exercise were limited by the client's joint pain. However, she did actively participate in low impact exercises, such as chair aerobics and Tai Chi, to increase activity." Id.
Plaintiff complained of neuropathic pain in her lower extremities, numbness in her right fingertips, and right lower quadrant abdominal pain on August 17, 2017. Tr. at 538. Dr. Ulmer ordered a colonoscopy, a gynecological exam, and lab work. Id.
On September 14, 2017, Plaintiff reported unchanged aches and pains and well-controlled blood sugar. Tr. at 540. Dr. Ulmer indicated Plaintiff was doing well and her lab work was excellent. Id.
On November 30, 2017, Plaintiff reported more severe pain down the lateral side of her left thigh, knee, and leg, especially with weight bearing on the left. Tr. at 542. She said she was ambulating with one crutch or cane on the right and had significant stiffness in her left knee. Id. She denied performing exercises and had not lost weight. Id. She continued to endorse periodic numbness in her bilateral lower extremities and occasionally in her bilateral fourth and fifth fingers. Id. Plaintiff weighed 312 pounds and had a BMI of 48.86 kg/m.² Dr. Ulmer observed Plaintiff to be walking with a pronounced limp favoring the left knee and using one crutch on the right. Id. He stated both legs appeared symmetrical with some degree of valgus, but were large enough to hide some deformity. Id. He noted no instability and ROM of zero to 100 degrees on the right and zero to 90 degrees of flexion only on the left. Id. He described good pedal pulses and trace pretibial edema. Id. He appreciated no reflexes in Plaintiff's lower extremities and tenderness at the lumbosacral junction and left buttock. Id. He discussed water exercise and use of an exercise bike. Tr. at 543. Plaintiff reported she had tried to use a bike, but could not bend her knees enough to circulate the pedals. Id. She indicated she was aware of water exercise programs she could attend. Id. Dr. Ulmer advised Plaintiff that her weight goal should be 250 pounds, as it would give her a BMI of less than 40 kg/m.² Id.
C. The Administrative Proceedings
1. The Administrative Hearing
a. Plaintiff's Testimony
At the hearing, Plaintiff testified she lived in a manufactured home, received food stamps, and used her pension from her former employer to pay her bills. Tr. at 38-39. She acknowledged having a driver's license and being able to drive. Tr. at 39. She said she was 5'7" tall, weighed 310 pounds, and had obtained an associate degree in manufacturing and a certification in welding. Id. She said she started working at Cummins on the assembly line as a production associate in August 1987. Tr. at 40, 45. She said she worked as a quality technician, inspecting engines from July 2005 until 2009 or 2010, when she became a compiling technician, listing the parts required to build a product and entering them into the system to be pulled for assembly. Tr. at 40-48. She stated the heaviest she had to lift was 30 pounds. Tr. at 43. Plaintiff said she stopped working at the job because the plant moved to Rocky Mount, North Carolina. Tr. at 44.
Plaintiff testified she was unable to work because she experienced numbness in her right hand and in both legs from her feet to her knees that worsened with prolonged standing. Id. She said she experienced pain after having broken the top of her right foot and needed knee replacement because her knee would become stiff upon standing for ten minutes. Id. She stated she had degenerative disc disease and sciatica that was unbearable when it flared up from time to time. Tr. at 45. She noted taking Humalog 75/25 insulin, Simvastatin, Hydrochlorothiazide, Amlodipine, baby aspirin, and Tylenol Arthritis. Tr. at 45, 49. She also noted she walked with a cane and had been informed by the doctor who x-rayed her knee that she should be using a cane. Tr. at 49, 51-52. She said she attended vocational rehabilitation, but was not qualified for the type of work they were doing. Tr. at 49-50.
Plaintiff testified she spent her day watching a lot of television and sleeping. Tr. at 50. She said she lived alone and was unable to take care of her laundry and household chores, although she could put some clothes in the washer and dryer. Tr. at 50-51. She said she used the internet at the library, attended church, played solitaire on the computer, and used a cart to grocery shop. Tr. at 52.
In response to her counsel's questioning about her PRW, Plaintiff testified she stood and walked one to two hours of an eight-hour workday to go to the factory floor to pull items and place them in a cart depending on the work flow and change orders. Tr. at 53-54. She stated her legs and feet would swell while she was working and she had a foot stool to elevate her legs. Tr. at 54.
Plaintiff said she continued to experience swelling and elevated her legs most of the day on pillows. Tr. at 54-55. She described pain in her foot, knees, back, and hands and said her neck would pop due to arthritis. Tr. at 55. She testified she had some good days and some really bad days. Id. She said she experienced pain and numbness every time she stood up, but her doctors had told her it was caused by degenerative disc disease, as opposed to neuropathy. Tr. at 55-56. She said the numbness in her right hand was worse than the left and she was right-handed, so it affected her ability to hold onto things. Tr. at 56. She said her leg numbness and pain required her to stop and rest when she walked. Id. She estimated being able to sit for 30 minutes before needing to change positions. Id. She said the swelling worsened when she sat without elevating her leg, but it seemed like it was always swollen. Tr. at 56-57. Plaintiff indicated her weight fluctuated and worsened her knee pressure. Tr. at 57. She said three doctors told her she would have to lose weight before having knee surgery. Id. She said her diabetes affected her ability to exercise and to lose weight. Tr. at 57-58. She said she tried walking on a treadmill, but her knees buckled, so she had focused on upper body exercises. Tr. at 58. She said she was unable to walk for exercise. Id. She said she attended water aerobics for six weeks during vocational rehabilitation the prior summer. Tr. at 59.
b. Vocational Expert Testimony
Vocational Expert ("VE") Heaven L. Hollender reviewed the record and testified at the hearing. Tr. at 60-72. The VE categorized Plaintiff's PRW as (1) an engine assembler, medium exertion, specific vocational preparation ("SVP") of 2, Dictionary of Occupational Titles ("DOT") number 806.684-010; (2) an inspector, light exertion, SVP of 4, DOT number 609.684-010; and (3) an assembly technician, light exertion, SVP of 6, DOT number 633.261-010. Tr. at 66-68.
The ALJ described a hypothetical individual of Plaintiff's vocational profile who could perform light work with frequent sitting, standing, and walking; occasionally climb ramps and stairs; never climb ladders, ropes or scaffolds; occasionally use foot controls bilaterally; frequently balance and stoop; occasionally crouch; and never kneel or crawl. Tr. at 67-68. The VE testified that the hypothetical individual could perform Plaintiff's PRW as an inspector. Tr. at 68. The VE stated inspecting parts would be a transferable skill from the quality technician position and data entry would be a transferable skill from the assembly technician position. Tr. at 70. The ALJ asked whether there were any other jobs in the economy that the hypothetical person could perform. Id. The VE identified the following light positions with an SVP of 2: (1) small products assembler, II, DOT number 739.687-030; (2) clothing stock sorter, DOT number 789.687-034; and (3) router, DOT number 222.587-038, with 392,000, 129,000, and 230,000 positions available in the national economy, respectively. Tr. at 70- 71. The VE testified the individual would have transferable skills to the following sedentary positions with SVP of 4: (1) data entry clerk, DOT number 203.582-054; and (2) final inspector, DOT number 715.684-094, with 41,213 and 200,002 positions available in the national economy, respectively. Tr. at 71-72. The VE confirmed that if the hypothetical individual were limited to sedentary work with the same limitations outlined, the individual would be able to do the data entry and final inspector work. Id. The VE testified if the individual were off-task for 20% of the time, there would be no jobs available in the national economy. Tr. at 72.
2. The ALJ's Findings
In her decision, the ALJ made the following findings of fact and conclusions of law:
1. The claimant meets the insured status requirements of the Social Security Act through March 31, 2019.
2. The claimant has not engaged in substantial gainful activity since January 1, 2007, the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: obesity and degenerative joint disease (DJD) of the bilateral knees (20 CFR 404.1520(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526).
5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except that the claimant can frequently sit, stand, and walk. The claimant can occasionally climb ramps and stairs, but can never climb ladders, ropes or scaffolds. The claimant can occasionally use foot controls bilaterally. The claimant can frequently balance and stoop, and occasionally crouch. The claimant can never kneel or crawl.Tr. at 17-28. II. Discussion
6. The claimant is capable of performing past relevant work as a quality tech/inspector, DOT#609.684-010, which is light, semi-skilled work with a svp of 4. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565).
7. The claimant has not been under a disability, as defined in the Social Security Act, from January 1, 2007, through the date of this decision (20 CFR 404.1520(f)).
Plaintiff alleges the Commissioner erred for the following reasons:
1) the ALJ did not adequately consider evidence as to her ability to stand and walk in the RFC assessment;
2) the ALJ did not evaluate her subjective allegations in accordance with SSR 16-3p; and
3) the ALJ did not properly evaluate the medical opinions of record.
The Commissioner counters that substantial evidence supports the ALJ's findings and that the ALJ committed no legal error in her decision.
A. Legal Framework
1. The Commissioner's Determination-of-Disability Process
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a "disability." 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability as:
the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for at least 12 consecutive months.42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983) (discussing considerations and noting "need for efficiency" in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity; (2) whether she has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents her from doing substantial gainful employment. See 20 C.F.R. §§ 404.1520, 416.920. These considerations are sometimes referred to as the "five steps" of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (providing that if 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. §§ 404.1525, 416.925. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, she will be found disabled without further assessment. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that her impairments match several specific criteria or are "at least equal in severity and duration to [those] criteria." 20 C.F.R. §§ 404.1526, 416.926; Sullivan v. Zebley, 493 U.S. 521, 530 (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).
In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's past relevant work to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. §§ 404.1520(h), 416.920(h).
A claimant is not disabled within the meaning of the Act if she can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, § 404.1520(a), (b), 416.920(a), (b); Social Security Ruling ("SSR") 82-62 (1982). The claimant bears the burden of establishing her inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that she is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of "any final decision of the Commissioner [] made after a hearing to which 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 Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to "try these cases de novo or resolve mere conflicts in the evidence." Vitek v. Finch, 438 F.2d 1157, 1157-58 (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). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed "even should the court disagree with such decision." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
B. Analysis
1. RFC Assessment
Plaintiff argues the ALJ did not apply the proper legal framework and that substantial evidence does not support her RFC assessment. [ECF No. 13 at 9-11]. She maintains the ALJ did not explain her reasons for declining to impose restrictions as to standing and walking. Id. at 10-11.
Plaintiff also alleges "use of the hands" was "squarely at issue," ECF No. 13 at 10, but neglects to present an argument as to how the ALJ erred in assessing her ability to use her hands or cite evidence that supports restrictions as to use of the hands that the ALJ declined to include in the RFC assessment. Because Plaintiff did not adequately address this issue, the undersigned considers it waived.
The Commissioner argues Plaintiff stopped working because she was laid off, continued to seek employment after being laid off, and demonstrated the ability to tolerate a full work day and workweek at the sedentary-to-light level when she participated in vocational rehabilitation. [ECF No. 15 at 1]. He maintains the ALJ provided a six-page explanation for her RFC assessment and accounted for all of Plaintiff's credibly-established limitations in the RFC assessment. Id. at 9-11.
A claimant's RFC represents the most she can do despite her limitations. 20 C.F.R. §§ 404.1545(a), 416.945(a). It should consider all the relevant evidence and account for all of the claimant's medically-determinable impairments. See id. The RFC assessment must include a narrative discussion describing how all the relevant evidence supports each conclusion and must cite "specific medical facts (e.g., laboratory findings) and non-medical evidence (e.g., daily activities, observations)." SSR 96-8p, 1996 WL 374184 at *7 (1996). "Thus, a proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion." Thomas v. Berryhil, 916 F.3d 307, 311 (4th Cir. 2019).
The ALJ must explain how any material inconsistencies or ambiguities in the record were resolved. SSR 16-3p, 2016 WL 1119029, at *7. "[R]emand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review." Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015), citing Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013).
The ALJ assessed an RFC for light work with frequent sitting, standing, and walking. Tr. at 20. Pertinent to Plaintiff's argument, the ALJ acknowledged her testimony that she experienced numbness from her feet to her knees that worsened with prolonged standing and swelling in her feet and ankles that required she elevate her legs most of the time. Tr. at 21. She cited Plaintiff's allegations that her knees became stiff from standing and that she could not shop in a store for 10 minutes without needing to sit. Id. She recognized Plaintiff's indications that she used a cane. Tr. at 22.
The ALJ summarized the evidence. She cited PA Watrobski's June 2012 observations of full ROM of the bilateral knees with moderate crepitus and diffuse medial tenderness and her assessment of osteoarthritis of the knees, severe varus DJD of the bilateral knees, and knee pain. Id. She noted Dr. Caldwell's April 2013 observations of no significant swelling or effusion and full extension, but moderate varus and diffuse medial tenderness and flexion to 115 degrees. Tr. at 23. She acknowledged x-rays of the knees showed marked varus tricompartmental degenerative arthritis that Dr. Caldwell described as "'bone on bone' in the medial compartment of both knees with marginal osteophytes and severe patellofemoral disease." Id. She summarized Dr. Brilliant's January 2015 exam findings that Plaintiff had trouble getting out of the chair, walked slowly with an obvious limp, could not kneel or squat down, had limited range of motion of the lumbosacral spine, had negative SLR, demonstrated good ROM of the hips, had no effusion in her knees and slight flexion contraction, and showed painful crepitus in both knees and slight valgus deformities. Tr. at 26. She noted he reviewed x-rays that showed severe osteoarthritic changes and bone-on-bone deformity in Plaintiff's knees. Id. She cited PA Watrobski's December 2015 observations that Plaintiff was ambulatory with use of a cane, demonstrated flexion from 10 to 90 degrees, and had mild effusion, moderate crepitus, diffuse medial TTP, and positive patellofemoral grind. Id. She acknowledged that November 2015 x-rays showed moderate-to-severe osteoarthritis in both knees. Id. She referred to a November 2017 exam during which Dr. Ulmer observed Plaintiff to be ambulating with one crutch or cane, walking with a limp, demonstrating no instability, showing zero to 100 degrees of flexion on the right and zero to 90 degrees of flexion on the left, having absent lower extremity reflexes, and demonstrating tenderness at the lumbosacral junction and left buttock. Tr. at 24.
In addressing the objective evidence as to Plaintiff's right foot, the ALJ noted Plaintiff:
had intact sensation and 5/5 muscle strength and mild residual edema dorsally (Exhibit 1F, 5). X-rays showed anatomic alignment of the transverse fracture of the base of the second metatarsal that was non-articular, and degenerative changes were noted in the great toe MP joint status post medial bunionectomy (Exhibit 1F, 5).Id.
The ALJ wrote: "Based on the medical evidence of record and other evidence, I find that the claimant is able to perform work activities within the claimant's residual functional capacity as written." Tr. at 25. Absent from the ALJ's decision is any explanation as to how the cited evidence supported the RFC for light work with frequent sitting, standing, and walking. Light work generally requires "a good deal of walking or standing." 20 C.F.R. §§ 404.1567(b), 416.967(b). "'Frequent' means occurring from one-third to two-thirds of the time." SSR 83-10, 1983 WL 31251, at *6 (Jan. 1, 1983). Thus, the ALJ found Plaintiff could engage in standing and walking for up to two-thirds of a workday.
The evidence the ALJ cited arguably supports restricted abilities to stand and walk that are inconsistent with the RFC for light work with frequent sitting, standing, and walking. Because she neglected to reconcile the evidence with her RFC assessment for light work, the ALJ's RFC assessment is not supported by substantial evidence.
2. Evaluation of Subjective Allegations
Plaintiff argues the ALJ did not comply with SSR 16-3p in evaluating her subjective allegations. [ECF No. 13 at 11-14]. She maintains the ALJ erroneously cited her limited participation in an exercise program as supporting an ability to perform light work. Id. at 12. She contends the ALJ concluded, without support, that her weight problems were partially attributed to excess calorie consumption. Id. at 12-13. She claims the ALJ unfairly relied on her initial ability to work after she developed symptoms as inconsistent with her allegations without considering that she stopped working prior to her alleged onset date. Id. She maintains the ALJ ignored other evidence that supported her allegations. Id. at 13.
Although Plaintiff generally argues the ALJ did not discuss "other potentially relevant factors in the record" and cites the factors in 20 C.F.R. §§ 404.1529(c), 416.929(c), she makes no specific argument as to additional restrictions that would be supported by consideration of those factors. See ECF No. 13 at 13. As Plaintiff's only specific argument is that the reasons the ALJ gave for rejecting her subjective allegations did not support a finding that she could perform "light work on a regular and continuing basis," id. at 12, the undersigned limits review to this issue.
The Commissioner argues the ALJ was not required to accept Plaintiff's subjective allegations and explained that medical records and other evidence did not support the alleged loss of functioning. Id. at 14. He maintains the ALJ considered Plaintiff's allegations inconsistent with her participation in a vocational rehabilitation program and her doctors' repeated recommendations that she engage in exercise, including progressive walking programs. Id. at 15.
If the ALJ finds the claimant's impairments could reasonably produce her alleged symptoms, she is required to "evaluate[s] the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit [her] ability to perform basic work activities." Lewis v. Berryhill, 858 F.3d 858, 865-66 (4th Cir. 2017) (citing 20 C.F.R. § 404.1529(c)). The ALJ must "evaluate whether the [claimant's] statements are consistent with objective medical evidence and the other evidence." SSR 16-3p, 2016 WL 1119029, at *6. However, she is not to evaluate the claimant's symptoms "based solely on objective medical evidence unless that objective medical evidence supports a finding that the individual is disabled." Id. at *4. The ALJ must consider other evidence that "includes statements from the individual, medical sources, and any other sources that might have information about the individual's symptoms, including agency personnel, as well as the factors set forth in [the] regulations." Id. at *5; see also 20 C.F.R. §§ 404.1529(c), 416.929(c) (listing factors to consider, such as ADLs; the location, duration, frequency, and intensity of pain or other symptoms; any measures other than treatment an individual uses or has used to relieve pain or other symptoms; and any other factors concerning an individual's functional limitations and restrictions due to pain or other symptoms).
Pursuant to SSR 16-3p, the ALJ is to explain which of the claimant's symptoms she found "consistent or inconsistent with the evidence in [the] record and how [her] evaluation of the individual's symptoms led to [her] conclusions." SSR 16-3p, 2016 WL 1119029, at *8. "An ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding." Lewis, 858 F.3d at 869 (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)). She must evaluate the "individual's symptoms considering all the evidence in his or her record." SSR 16-3p, 2016 WL 1119029, at *8.
The ALJ found that Plaintiff's medically-determinable impairments could reasonably be expected to cause the symptoms she alleged, but that her statements were inconsistent with the medical evidence and other evidence that did not support the alleged loss of functioning. Tr. at 22.
The ALJ summarized the objective test results and medical providers' observations, as detailed above. See Tr. at 22-24. She acknowledged Plaintiff's complaints to her medical providers. See Tr. at 22 (noting Plaintiff reported "continued achiness, throbbing and stiffness in her knees with prolonged immobility" during the June 2012 exam with PA Watrobski), 23 (indicating Plaintiff "complained of significant pain in both knees and difficulty with walking a block or less" to Dr. Caldwell in April 2013), 25 (stating Plaintiff "reported worsening knee pain and that she could only stand for 10 minutes and had trouble walking through stores" and "could not kneel or squat and had problems with getting [out] of a chair because of pain" when she visited Dr. Brilliant in January 2015). The ALJ did not reconcile the objective evidence and Plaintiff's consistent statements describing lower extremity restrictions with the decision to reject her statements as to her abilities to stand and walk.
The ALJ referenced Dr. Caldwell's April 2013 notation that Plaintiff "continued to work doing final assembly of engines at Cummins" despite having end-stage degenerative arthritis. Tr. at 23. This does not provide support for the ALJ's rejection of Plaintiff's subjective allegations, as her ability to work in April 2013 does not provide adequate reason to reject her allegations of impaired ability to stand and walk two months later, particularly given her June 2013 right foot fracture.
The ALJ pointed to some evidence of Plaintiff's noncompliance with her providers' recommendations. See Tr. at 22-24. She noted that Plaintiff denied performing home physical therapy exercises and that PA Watrobski "emphasized that [she] should return to her exercise regimen" in June 2012. Tr. at 22-23. She stated: "Dr. Caldwell wrote that the claimant had not been consistent in her weight loss efforts or exercise programs." Tr. at 23. She noted that Plaintiff "was reportedly not doing any exercise and had not been able to lose weight" when she visited Dr. Ulmer in November 2017. Id. She wrote the following: "Clinical records reflect noncompliance with dietary recommendations from her health providers and her obesity was attributed to excess calories throughout the record." Tr. at 24.
Plaintiff attacks this argument as based on the ALJ's conjecture, as opposed to the evidence. [ECF No. 13 at 12]. However, the ALJ's conclusion appears to be based on Dr. Ulmer's assessment of "severe morbid obesity due to excess calories." Tr. at 467.
To disqualify "an otherwise eligible Social Security claimant from benefits for noncompliance," the ALJ must "conduct a 'particularized inquiry' to demonstrate that the claimant's condition is 'reasonably remediable' by compliance with prescribed treatment." Pringle v. Astrue, C/A No. 4:11-2152-RMG, 2013 WL 442256, at *6 (D.S.C. Feb. 5, 2013) (citing Preston v. Heckler, 769 F.2d 988, 990 (4th Cir. 1985). "This means that with compliance Plaintiff could return to work." Id. (citing Rousey v. Heckler, 771 F.2d 1065, 1069 (7th Cir. 1985). The ALJ did not perform the required particularized inquiry, and erred to the extent that she discounted Plaintiff's allegations as her to reduced abilities to stand and walk without engaging in such an inquiry.
Even if the ALJ had engaged in a particularized inquiry, it would not have shown that Plaintiff's condition was reasonably remediable by compliance with diet and exercise routines. The record reflects Plaintiff's weight as ranging from 284 pounds, prior to her alleged onset date, to 314 pounds. See Tr. at 284, 530. Dr. Ulmer advised Plaintiff that she would have to reduce her weight to 250 pounds to be considered for total knee arthroplasty. Tr. at 543. At that time, she weighed 312 pounds, meaning she would have had to lose 62 pounds to be eligible for knee replacement. Tr. at 542. Even if Plaintiff were to have lost the weight through compliance with diet and exercise recommendations such that she could have undergone knee replacement surgery, there was no guarantee that she would have been able to engage in frequent standing and walking after bilateral knee replacement surgery.
The ALJ stated Plaintiff "was able to benefit from participation in a vocational rehabilitation program." Tr. at 25. She wrote:
Although the claimant has degenerative joint disease of the knees and obesity, the claimant's experience at the vocational rehabilitation program shows that she is capable of participating in an exercise program. All of her medical providers recommended that the claimant engage in exercise, which tends to show that this type of activity was not medically contraindicated.Tr. at 25. The ALJ failed to explain how Plaintiff's limited participation in low-impact exercises, strength training, and aquatic therapy supported an ability to engage in frequent standing and walking over the course of an eight-hour workday.
In light of the foregoing, the undersigned recommends the court find the ALJ erred in evaluating Plaintiff's subjective allegations as to her abilities to stand and walk.
3. Opinion Evidence
a. Dr. Brilliant's Opinion
Plaintiff argues the ALJ provided an inadequate reason for rejecting Dr. Brilliant's opinion, concluding that his recommendation for a low-intensity rehabilitation program was inconsistent with his recommendation that she be limited to sedentary work. [ECF No. 13 at 15].
The Commissioner maintains the ALJ properly assigned partial weight to Dr. Brilliant's opinion because it was neither supported by nor consistent with the other evidence. [ECF No. 15 at 16-18].
Pursuant to 20 C.F.R. §§ 404.1527(a)(1) and 416.927(a)(1), "[m]edical opinions are statements from acceptable medical sources that reflect judgment about the nature and severity of [the claimant's] impairments, including [her] symptoms, diagnosis and prognosis, what [she] can still do despite [her] impairment(s), and [her] physical or mental restrictions." ALJs are required to "evaluate every medical opinion [they] receive." 20 C.F.R. §§ 404.1527(c), 416.927(c). When a treating source's medical opinion is not given controlling weight, five factors are utilized to determine what lesser weight should instead be accorded to the opinion." Brown v. Commissioner Social Security Administration, 873 F.3d 251, 256 (4th Cir. 2017). These factors include "[l]ength of the treatment relationship and the frequency of examination," "]n]ature and extent of the treatment relationship," "'[s]upportability' in the form of the quality of the explanation provided for the medical opinion and the amount of relevant evidence—'particularly medical signs and laboratory findings'—substantiating it," "'[c]onsistency,' meaning how consistent the medical opinion is with the record as a whole,'" and "'[s]pecialization,' favoring 'the medical opinion of a specialist about medical issues related to his or her area of specialty.'" Id. (citing 20 C.F.R. 404.1527(c)(2), (3), (4), (5)). The ALJ should also consider "any other factors 'which tend to support or contradict the medical opinion.'" Id. (citing 20 C.F.R. § 404.1527(c)(6)). The regulations directs ALJ's to generally allocate greater weight "to the medical opinion of a source who has examined [the claimant] than to the medical opinion of a medical source who has not examined [her]." 20 C.F.R. §§ 404.1527(c)(1), 416.927(c)(1).
Because Plaintiff filed her claim prior to March 27, 2017, the undersigned considers the ALJ's evaluation of medical opinions based on the rules codified by 20 C.F.R. §§ 404.1527 and 416.927. See 20 C.F.R. §§ 404.1520c (stating "[f]or claims filed before March 27, 2017, the rules in § 404.1527 apply"); see also 82 Fed. Reg. 15,263 (stating the rescissions of SSR 96-2p, 96-5p, and 06-3p were effective for "claims filed on or after March 27, 2017").
The ALJ gave Dr. Brilliant's opinion partial weight, writing as follows:
In his physical examination notes, Dr. Brilliant noted that the claimant had trouble getting out of the chair and that she walked slowly with an obvious limp and could not kneel or squat down (Exhibit 8F, 2). The claimant had limited range of motion of the lumbosacral spine from her obesity, but was otherwise pain free (Exhibit 8F, 2). The claimant's straight leg raising test was negative and she had good range of motion of the hips (Exhibit 8F, 3). The claimant had no effusion in her knees and slight flexion contraction, but did have painful crepitus in both knees, and slight valgus deformities (Exhibit 8F, 3). X-rays of the claimant's knees showed severe osteoarthritic changes and bone-on-bone deformity (Exhibit 8F, 3).
Dr. Brilliant diagnosed obesity, diabetes and severe osteoarthritis in both knees, which was worse on the right (Exhibit 8F, 3). He indicated that she was not a good candidate for knee replacement because of her size. Dr. Brilliant recommended weight loss and a gentle exercise program, walking 30-40 minutes per day using 1-2 canes along with supervised physical therapy, nutritional counseling and possible stapling procedures to decrease her weight (Exhibit 8F, 3).
Dr. Brilliant wrote that the claimant was limited to sedentary activities and would need to get up from time to time to keep her knees from stiffening (Exhibit 8F, 3).
Some weight is given to the findings of Dr. Brilliant, which are supported by his examination of the claimant and objective medical evidence. However, his opinion that the claimant was limited to sedentary activities is somewhat inconsistent with recommendations for an exercise program. The claimant's later participation in an exercise cardiovascular and strength training program also tends to show that the claimant was capable of
greater than sedentary activity. Therefore, only partial weight is given to the opinion of Dr. Brilliant as a whole.Tr. at 25.
Substantial evidence does not support the ALJ's rejection of Dr. Brilliant's opinion that Plaintiff was limited to sedentary activities. In evaluating the relevant factors, the ALJ credits Dr. Brilliant's objective exam findings as supporting his opinion. However, she neglects to explain why she considers an ability to engage in 30 to 40 minutes of walking daily while using one or two canes to be inconsistent with sedentary work. Therefore, substantial evidence does not support her rejection of Dr. Brilliant's opinion.
b. PT Jackman's Opinion
Plaintiff contends the ALJ provided no reason for accepting PT Jackman's opinion to support an ability to perform light work without acknowledging that she indicated Plaintiff was capable of "sedentary to light" work. [ECF No. 13 at 15].
Physical therapists are not acceptable medical sources as described in SSR 06-03p, 2006 WL 2329939, at *1 (Aug. 9, 2006). While ALJs are not required to explicitly consider opinions from individuals who are not acceptable medical sources as they are with opinions from acceptable medical sources, their decisions should indicate they were guided by the relevant factors in 20 C.F.R. § 404.1527(c) and § 416.927(c) in considering the opinions. SSR 06-03p, 2006 WL 2329939, at *4. "Thus, a distinction may be drawn between the ALJ's requirement to consider opinions from other sources and his need to explain in his decision the weight accorded to opinions from these 'other sources,' or otherwise ensure that the discussion of the evidence in the determination or decision allows a claimant or subsequent reviewer to follow the adjudicator's reasoning, when such opinion may have an effect on the outcome of the case.'" Dutton v. Colvin, C/A No. 1:14-1779-BHH, 2015 WL 1733799, at *13 (D.S.C. Apr. 16, 2015) (citing SSR 06-03p).
The ALJ addressed PT Jackman's opinion as follows:
Ms. Jackman's gross functional assessment appears somewhat consistent with the rest of the medical evidence of record; however, her clinical notes do not appear in the record to show how these assessments were made. Her statement that the claimant tolerated a full workday and workweek at the sedentary to light level is supported by her observations. Therefore, partial weight is given to the opinion of Ms. Jackman in this case.Tr. at 26.
The ALJ provided sufficient reason for giving only partial weight to PT Jackman's opinion in that she noted the opinion was not supported by any clinical notes. However, in finding "[h]er statement that the claimant tolerated a full workday and workweek at the sedentary to light level is supported by her observations," the ALJ did not reconcile indications in the same report that Plaintiff demonstrated abilities to perform only occasional standing and walking. See Tr. at 565. Therefore, she appears to have cherrypicked PT Jackman's opinion to support her conclusion while neglecting other relevant evidence within the same opinion. See Lewis, 858 F.3d at 869. In light of the foregoing, substantial evidence does not support the ALJ's evaluation of PT Jackman's opinion.
4. Harmless Error
Although Plaintiff argues, and the undersigned agrees, that the ALJ committed the above-identified errors in her evaluation of the evidence, these errors amount to an argument that the ALJ erred in assessing an RFC for light, as opposed to sedentary work. The Commissioner maintains that any error on the part of the ALJ in overestimating Plaintiff's ability to perform light work was remedied by her identification of sedentary, as well as light jobs. [ECF No. 15 at 15]. Plaintiff declined to file a reply brief and, consequently, has not addressed the Commissioner's argument.
"Where an insufficient record precludes a determination that substantial evidence supported the ALJ's denial of benefits, this court may not affirm for harmless error." Patterson v. Commissioner of Social Security Administration, 846 F.3d 656, 658 (4th Cir. 2017) (citing Meyer v. Astrue, 662 F.3d 700, 707 (4th Cir. 2011); Shinseki v. Sanders, 556 U.S. 396, 407 (2009) (noting that "general case law governing application of the harmless-error standard" applies equally to administrative cases). "While the general rule is that an administrative order cannot be upheld unless the grounds upon which the agency acted in exercising its powers were those upon which its action can be sustained, reversal is not required where the alleged error clearly had no bearing on the procedure used or the substance of the decision reached." Ngarurih v. Ashcroft, 371 F.3d 182, 190 n.8 (4th Cir. 2004). The court generally considers an error to be harmless where the ALJ conducted the proper analysis, cited substantial evidence to support her finding, and "would have reached the same conclusion notwithstanding [her] initial error." Mickles v. Shalala, 29 F.3d 918, 921 (4th Cir. 1994).
In evaluating whether the ALJ conducted the proper analysis, the undersigned notes the ALJ followed the five-step process in evaluating Plaintiff's claim. Between steps three and four, she erred in evaluating Plaintiff's RFC. Generally, an error in assessing a claimant's RFC is not harmless because it leads to additional errors at steps four and five. See 20 C.F.R. 404.1520(a)(4) ("Before we go from step three to step four, we assess your residual functional capacity . . . We use this residual functional capacity assessment at both step four and step five . . . ."). While the erroneous RFC assessment directed a step four finding that Plaintiff was not disabled, the ALJ did not end her inquiry at step four. Instead, she moved onto the step five based on an alternate RFC for sedentary work.
The ALJ noted Plaintiff had "acquired work skills from past relevant work that are transferable to other occupations with jobs existing in significant numbers in the national economy (20 CFR 404.1569, 404.1569(a) and 404.1568(d))." Tr. at 27. She accepted the VE's testimony that Plaintiff acquired skills from her PRW that "were transferable to other occupations at the sedentary level," including work as a data entry clerk and a final inspector, with 200,000 and 41,200 jobs, respectively. Tr. at 28. Thus, the ALJ relied on the VE's response to the hypothetical question that mirrored the RFC assessment in her decision, except that it reduced the exertional capacity from light to sedentary. See Tr. at 70-72. Consequently, the error in assessing an RFC for light work was remedied by consideration of an alternate RFC for sedentary work.
This court has affirmed ALJs' decisions in other cases in which they offered alternative findings that were not affected by the errors. See Ferguson v. Berryhill, C/A No. 9:18-1530-DCC-BM, 2019 WL 6687730, at *7 (D.S.C. Mar. 19, 2019) ("Because the ALJ found in the alternative and supported her alternative findings with the VE's testimony, that Plaintiff could perform three other jobs that did not require kneeling, Plaintiff has not shown that the outcome would be different even if she could not perform her past relevant work."), adopted by 2019 WL 4593580 (D.S.C. Sept. 23, 2019); Corn v. Berryhill, C/A No. 8:17-125-MBS-JDA, 2018 WL 3384889, at *10 (D.S.C. May 29, 2018) (declining to remand case where the ALJ initially concluded the plaintiff had no severe impairments, but alternatively found that fibromyalgia was a severe impairment and considered it in assessing the plaintiff's RFC because the plaintiff "failed to advise the Court as to why these limitations do not adequately accommodate her fibromyalgia"), adopted by 2018 WL 3377561 (D.S.C. July 10, 2018); Malachi v. Colvin, C/A No. 2:14-3334-TMC-MGB, 2016 WL 551828, at *5 (D.S.C. Jan. 25, 2016) ("That error does not end the inquiry, however, because the ALJ in this case made alternative findings."), adopted by 2016 WL 540729 (D.S.C. Feb. 11, 2016).
As discussed in detail above, the ALJ cited substantial evidence to support a finding that Plaintiff was limited to sedentary work, noting the objective evidence, her physicians' observations, the opinion evidence, and her subjective allegations. As Plaintiff does not specifically allege the ALJ committed any errors in assessing her RFC, aside from those as to her abilities to stand and walk, substantial evidence supports the alternative RFC for a reduced range of sedentary work.
The ALJ would have reached the same conclusion notwithstanding her error in assessing the RFC. Because the ALJ found Plaintiff could perform sedentary jobs that utilized her transferable skills and existed in significant numbers, her errors in initially assessing an RFC for light work were inconsequential. Therefore, the undersigned recommends the court find the ALJ's errors to be harmless and that substantial evidence supports her conclusion that Plaintiff was not disabled. III. Conclusion and Recommendation
The court's function is not to substitute its own judgment for that of the Commissioner, but to determine whether her decision is supported as a matter of fact and law. Based on the foregoing, the undersigned recommends the Commissioner's decision be affirmed.
IT IS SO RECOMMENDED. July 24, 2020
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).