Opinion
Civil Action 2:20-cv-03033-BHH-MGB
03-16-2022
DEBRA ANN HAYES, Plaintiff, v. KILOLO KIJAKAZI, [1]Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE
Plaintiff Debra Ann Hayes (“Plaintiff”), brought this action pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. Section 405(g), to obtain judicial review of a final decision of the Commissioner of Social Security Administration regarding her claim for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under the Social Security Act (the “Act”). This matter was referred to the Magistrate Judge for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and Title 28, United States Code, Section 636(b)(1)(B). For the reasons set forth herein, the undersigned recommends affirming the decision of the Commissioner.
RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS
Plaintiff protectively filed applications for DIB and SSI on April 30, 2015, alleging disability beginning June 1, 2003 due to: uveitis of eye; possible lupus or multiple sclerosis; neck damage[]; pinched nerve, missing cushioning; numb arms; rheumatoid arthritis; right ankle bolts and screws; sciatica; and acid reflux. (R. at 121, 128.) Plaintiff was born on May 16, 1959 and was 44 years old on the date of her alleged disability onset date. (R. at 121.) She has a high school education. (R. at 121.) She has past relevant work as a lab-wash tester[ and a warehouse clerk manager at a mill. (R. at 395.) Plaintiff's applications were denied initially (R. at 192, 196), and on reconsideration. (R. at 212, 218.)
Plaintiff's application lists her past work as “lab-wash tester.” The vocational expert who testified at the 2019 hearing refers to this job as a cloth shrinking tester, based on the Plaintiff's testimony describing her duties. (R. at 60-62, 84.)
Plaintiff filed a request for an administrative hearing on April 4, 2016. (R. at 224.) Plaintiff was represented by counsel at the hearing. (R. at 94-120.) On March 14, 2018, the Administrative Law Judge (“ALJ”) issued a decision finding that Plaintiff could perform her past relevant work and was not disabled. (R. at 168-87.) The Appeals Council remanded the case back to the ALJ. (R. 188-89.)
Plaintiff was represented by counsel again at the administrative hearing on remand on August 23, 2019. (R. at 47-92.) On November 13, 2019, the ALJ issued a decision finding that Plaintiff was not disabled, that Plaintiff could perform her past relevant work, and that, in the alternative, there were other jobs that existed in the national economy that Plaintiff could perform. (R. at 38-39.) The Appeals Council denied Plaintiff's request for review, making the ALJ's decision the Commissioner's final decision for purposes of judicial review. (R. at 1-5.)
In making the determination that Plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant meets the insured status requirements of the Social Security Act through December 31, 2009.
(2) The claimant has not engaged in substantial gainful activity since June 1, 2003, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
(3) The claimant has the following severe impairments: degenerative disc disease of the cervical spine, diffuse arthralgia, remote history of an ORIF of the right ankle and obesity. (20 CFR 404.1520(c) and 416.920(c)).
(4) The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
(5) After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except the claimant can never climb ladders, ropes, or scaffolds. The claimant can balance occasionally, stoop occasionally, kneel occasionally, crouch occasionally, and crawl occasionally. The claimant should not work at unprotected heights and/or with & or with (sic) unprotected dangerous moving mechanical parts. The claimant should never have to work in extreme cold.
(6) The claimant is capable of performing past relevant work as a cloth-shrinking tester, DOT#587.384-010, light, SVP 3. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565 and 416.965).
(7) The claimant has not been under a disability, as defined in the Social Security Act, from June 1, 2003, through the date of this decision (20 CFR 404.1520(f) and 416.920(f)).(R. at 15-39.)
APPLICABLE LAW
I. Relevant Statutory Law
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a “disability.” 42 U.S.C. § 423(a). The Act also provides that SSI disability benefits shall be available for aged, blind, or disabled persons who have income and resources below a specific amount. See 42 U.S.C. § 1381 et seq. “Disability” is defined in the Act as the inability “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A) (DIB context); 42 U.S.C. § 1382c(a)(3)(A) (SSI context).[
“[T]he definition of disability is the same under both DIB and SSI. . . .” Morgan v. Saul, 9:19-cv-1390-BHH-BM, 2020 WL 3318630, at *1 n.1 (D.S.C. June 3, 2020) (citing Emberlin v. Astrue, No. 06-4136, 2008 WL 565185, at *1 n.3 (D.S.D. Feb. 29, 2008)), adopted, 2020 WL 3316089 (D.S.C. June 18, 2020).
To facilitate a uniform and efficient processing of disability claims, the Act has by regulation reduced the statutory definition of “disability” to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment which equals an illness contained in the Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents him from doing substantial gainful employment. 20 C.F.R. § 404.1520 (DIB context); 20 C.F.R. § 416.920 (SSI context). If an individual is found not disabled at any step, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a)(4) (DIB context); 20 C.F.R. § 416.920(a)(4) (SSI context).
II. Standard of Review
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the Commissioner supported his findings with substantial evidence and applied the correct law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015); Woods v. Berryhill, 888 F.3d 686, 691 (4th Cir. 2018); Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 94 (4th Cir. 2020); 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). Consequently, the Act precludes a de novo review of the evidence and requires that the court uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988); Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012); Mascio, 780 F.3d at 640; Dowling v. Comm'r of Soc. Sec. Admin., 986 F.3d 377, 383 (4th Cir. 2021).
“Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion.” Dowling, 986 F.3d at 383 (citing Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015)). It is “more than a mere scintilla of evidence but may be less than a preponderance.” Pearson, 810 F.3d at 207 (citing Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012)). In reviewing for substantial evidence, the court does not undertake to “reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ].” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); Hancock, 667 F.3d at 472; Arakas, 983 F.3d at 95; Dowling, 986 F.3d at 383. “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, ” the reviewing court must defer to the ALJ's decision. Shinaberry v. Saul, 952 F.3d 113, 123 (4th Cir. 2020) (citing Hancock, 667 F.3d at 472).
However, the court does not “reflexively rubber-stamp an ALJ's findings.” Dowling, 986 F.3d at 383 (citing Lewis v. Berryhill, 858 F.3d 858, 870 (4th Cir. 2017)). An ALJ may not cherry-pick, misstate, or mischaracterize material facts. Arakas, 983 F.3d at 99 (citing Lewis, 858 F.3d at 869). Rather, ALJs “must ‘build an accurate and logical bridge' from the evidence to their conclusions.” Id. at 95 (quoting Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016)).
DISCUSSION
The Plaintiff raises three grounds for remand of the ALJ's opinion: 1) whether the ALJ explained his findings regarding the Plaintiff's residual functional capacity (“RFC”), as required by Social Security Ruling 96-8p; 2) whether the ALJ properly assessed the medical source opinion evidence; and 3) whether the ALJ properly evaluated Plaintiff's subjective symptomology. (Dkt. No. 16 at 13-25.) Plaintiff contends that these errors require the Commissioner's decision to be reversed, whereas the Commissioner contends that the ALJ's decision should be affirmed because it is supported by substantial evidence and is free of legal error. (Id. at 25; Dkt. No. 17 at 20.)
I. The ALJ's Decision
In the 25-page decision, the ALJ considered whether Plaintiff is disabled. (R. 15-39.) The ALJ concluded that Plaintiff suffered the following severe impairments: degenerative disc disease of the spine, diffuse arthralgia, remote history of an ORIF of the right ankle and obesity. (Id.)[ The ALJ analyzed whether any of Plaintiff's impairments, singly or in combination, equaled the severity of listed impairments and found that they did not. (R. at 20.)
The ALJ notes that there was some mention of symptoms of fibromyalgia, lupus, multiple sclerosis and rheumatoid arthritis in the medical records. (R. at 18-19.) The ALJ found that medically determinable impairments of these conditions were not established based upon the record evidence. (Id.) These findings are not challenged by Plaintiff.
The ALJ thoroughly reviewed Plaintiff's testimony, including her subjective complaints. (R. at 18-38.)Plaintiff testified she left home maybe once per week to go to the grocery store and either leaned on a buggy or used a cane when shopping. She could dress and bathe on her own but had spasms in her back and on occasion had to hold on to something when she bathed. She prepared meals once or twice a week and did laundry once per week. (R. at 22.)
She testified she could sit for about 5-10 minutes before she had to move; she could walk for 10-15 minutes before she had to sit. She could stand for about 5 minutes at a time because of pain in her middle back. Her head felt like a bowling ball because of bulging discs in her neck. She could lift or carry up to 5 pounds. She used a cane at times, off and on since 2008 when her arthritis flared up. There might be a time for a month when she might not use her cane, and on other occasions, she might use it for a week. She testified that she tried to get a job through Strom Thurmond Rehab in Aiken but that she could only work for one day due to pain. (R. at 22.)
The ALJ noted that Plaintiff had to move around during the hearing. Plaintiff stated she had severe neck and back pain when she sat straight up and spent most of her day lying on the couch or in bed. She reported interrupted sleep due to pain and had to walk around when she was awakened. She testified she spent most of the day in a reclined position to relieve her pain. She used her cane due to leg and back pain. She could lift 5-10 pounds at a time but had trouble with her hands, including a lack of strength. She stated her left hip popped at times when she walked, and that she was in pain daily. (R. at 23.)
The ALJ concluded that Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record.” (R. at 24.) To justify this finding, the ALJ went on to review exhaustively Plaintiff's medical records, including the treating physician and consultative examiner opinions. (R. 24-38.) The ALJ stated that: “The medical evidence of record showed that the claimant had diffuse arthralgia and she was sometimes diagnosed with generalized osteoarthritis. . . . Her pain complaints were treated very conservatively with oral medications. At the hearing, the claimant testified that she only took over the counter medications for her pain.” (R. at 34.)
Regarding cane use, the ALJ noted that “there was no evidence that a cane had been prescribed and she testified she only used it occasionally.” (R. at 34.) Ultimately, the ALJ concluded that Plaintiff had the RFC to perform light work, with various exertional limitations. (R. at 21.) With this RFC, the ALJ determined that Plaintiff was capable of performing past relevant work and, alternatively, that there were other jobs that existed in significant numbers in the national economy that Plaintiff could perform. (R. at 38-39.)
II. RFC Analysis
A. Legal Standard
“[R]esidual functional capacity is the most [a claimant] can still do despite [her] limitations.” Felton-Miller v. Astrue, 459 Fed.Appx. 226, 230 (4th Cir. 2011) (quoting 20 C.F.R. § 404.1545(a)). “The RFC assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis. . . .” SSR 96-8p, 1996 WL 374184, at *1; accord Mascio, 780 F.3d at 636 (internal quotations omitted). The RFC must be based upon all relevant medical evidence and other evidence in the record and may include a claimant's own description of limitations arising from alleged symptoms. 20 C.F.R. § 404.1545(a)(3). The ALJ “must consider all the evidence and explain on the record the reasons for his findings, including the reason for rejecting relevant evidence in support of the claim.” King v. Califano, 615 F.2d 1018, 1020 (4th Cir. 1980). “Even if legitimate reasons exist for rejecting or discounting certain evidence, the [ALJ] cannot do so for no reason or for the wrong reason.” Id. However, “there is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision.” Reid v. Comm'r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014) (quoting Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (per curiam)). As the party attacking the Commissioner's decision, the claimant carries the burden to show that prejudice resulted from any error. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009).
B. Analysis
As noted, Plaintiff takes issue with the ALJ's RFC determination, arguing generally that the ALJ did not perform the “required function-by-function analysis.” (See Dkt No. 16 at 15.) Plaintiff's only specific argument is that the ALJ failed to properly consider Plaintiff's cane use and SSR 96-p. (Dkt. No. 16 at 15-17.) The Commissioner argues that substantial evidence supports the ALJ's RFC finding that did not include a cane-specific limitation because there was no evidence that a cane was prescribed or medically required. (Dkt. No. 17 at 12-13.)
A plaintiff's need for an assistive device can “impact [her] functional capacity by virtue of the fact that one or both upper extremities are not available for such activities as lifting, carrying, pushing, and pulling.” 20 C.F.R. Part 404, Subpt. P, App. 1 § 1.00(J)(4). However, the ALJ is not required to account for an assistive device if Plaintiff has not demonstrated that the device is medically required. Sanford v. Saul, No. 5:18-cv-2886-KDW, 2020 WL 633743, at *9-11 (D.S.C. Feb. 11, 2020) (quoting Timmons v. Colvin, No. 3:12-cv-609, 2013 WL 4775131, at *8-9 (W.D. N.C. Sept. 5, 2013)) (“‘Because there is no evidence showing that the cane is medically required . . . the ALJ did not err' in failing to discuss the medical necessity of a cane or include any cane-related limitation in his RFC assessment.”). SSR 96-9p provides the following guidance to assist ALJs in determining whether an assistive device is actually medically required:
To find that a hand-held assistive device is medically required, there must be medical documentation establishing the need for a handheld assistive device to aid in walking or standing, and describing the circumstances for which it is needed (i.e., whether all the time, periodically, or only in certain situations; distance and terrain; and any other relevant information). The adjudicator must always consider the particular facts of a case. For example, if a medically required hand-held assistive device is needed only for prolonged ambulation, walking on uneven terrain, or ascending or descending slopes, the unskilled sedentary occupational base will not ordinarily be significantly eroded.1996 WL 374185, at *7. In other words, “even if a cane is prescribed, it does not necessarily follow that it is medically required.” Wimbush v. Astrue, No. 4:10-cv-36, 2011 WL 1743153, at *3 (W.D. Va. May 6, 2011).
Here, the ALJ acknowledged everywhere in the record that cane use was mentioned, including in Plaintiff's testimony, (R. at 22, 23), and in the medical records. (R. at 34, 36, 37, and 38.)[ The ALJ directly addressed the issue: “At some exams, the claimant stated that she used a cane, but there was no evidence that a cane had been prescribed and she testified she only used it occasionally.” (R. at 34.) There is simply no medical documentation in the record establishing that a cane was medically necessary.
Plaintiff testified that she used a cane when shopping; that she used a cane at times; that she used a cane off and on since 2008 when her arthritis flared up; that she used the cane the week before her testimony; that she holds it in her right hand; and that she uses a cane because of her leg and back pain. (R. at 22-23.) The only references to cane use in the medical records are Dr. Stephen Schacher's notation that Plaintiff told him that “if she had a cane, she could walk further”; that she could not walk without a cane; and that she used a cane and was limping. (R. at 36.) Dr. Schacher's opinion, based on a single visit, is discussed further below. Dr. Ann Kulik likewise noted in her opinion that Plaintiff must use a cane or other assistive device while engaging in “occasionally standing/walking.” (R. at 38.)
Indeed, Plaintiff does not direct the Court to any such documentation. Although the ALJ did not use the term “medically necessary” in her opinion, it is clear that she was highlighting the lack of any medical documentation of the need for a cane.
Further, the notations of Plaintiff's cane use by two of Plaintiff's doctors, Dr. Steven Schacher (consultative examiner) and Dr. Ann Kulik (treating physician), as explained below, were based solely on Plaintiff's self-reports. The undersigned agrees with the Commissioner that self-reports and references in the record from physicians stating only that a claimant presented with a cane are not sufficient. There must be “an unambiguous opinion from a physician stating the circumstances in which an assistive device is medically necessary.” Tripp v. Astrue, 489 Fed.Appx. 951, 955 (7th Cir. 2012); see also Staples v. Astrue, 329 F. App' x 189, 191-92 (10th Cir. 2010) (finding that a doctor's statement that a claimant “‘uses a cane to walk'” did not establish medical necessity); Howze v. Barnhart, 53 Fed.Appx. 218, 222 (3d Cir. 2002) (concluding that the doctor's reference to a “script” for a cane and checking a box on a printed form corresponding to a statement that “hand-held assistive device medically required for ambulation” was insufficient to establish medical necessity); Keys v. Colvin, No. 3:14-cv-191, 2015 WL 1275367, at *13 (M.D. Pa. Mar. 19, 2015) (finding that a claimant's testimony about the use of a cane and references in the record to a doctor's observing cane use does not constitute “medical documentation that the cane is medically required”).
Although Plaintiff argues that the ALJ did not sufficiently evaluate medical necessity without a prescription, the record contains a dearth of medical evidence regarding Plaintiff's need for a cane (other than Plaintiff's own self-reports). As such, remand would serve no useful purpose.
For the foregoing reasons, the undersigned finds that the ALJ's finding that Plaintiff's RFC should not include a cane-specific limitation, is supported by substantial evidence and is of legal error.
III. Analysis of Medical Source Opinions
Plaintiff next contends that the ALJ's decision is not supported by substantial evidence because the ALJ failed to properly assess the medical source opinion evidence. (Dkt. No. 16 at 17-21.) In response, the Commissioner argues that substantial evidence supports the weight that the ALJ gave to the record medical evidence, and specifically not giving weight to any “opinion” that Plaintiff required a cane to ambulate. (Dkt. No. 17 at 14-16.) Upon review of the ALJ's decision and the record as a whole, the undersigned agrees with the Commissioner that substantial evidence supports the weight given to the medical opinions.
A. Legal Standard
An ALJ is required to assign weight to every medical opinion in a claimant's record. 20 C.F.R. § 404.1527(c) (“Regardless of its source, we will evaluate every medical opinion we receive.”); 20 C.F.R. § 416.927(c) (same in SSI context). Typically, the Administration accords greater weight to the opinion of treating medical sources because treating physicians are best able to provide “a detailed, longitudinal picture” of a claimant's alleged disability. 20 C.F.R. § 404.1527(c)(2); 20 C.F.R. § 416.927(c)(2). The Fourth Circuit recently reiterated the treating physician rule in Arakas v. Commissioner, explaining that a treating physician “opinion must be given controlling weight unless it is based on medically unacceptable clinical or laboratory diagnostic techniques or is contradicted by the other substantial evidence in the record.”[ 983 F.3d at 107 (emphasis in original) (citing 20 C.F.R. § 404.1527(c)(2); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987)).
The Social Security Administration has amended the “Treating Physician Rule, ” effective March 27, 2017, for claims filed after that date. See 20 C.F.R. § 404.1520c; 20 C.F.R. § 416.920c; see also Marshall v. Berryhill, Case No. 16-cv-00666-BAS-PCL, 2017 WL 2060658, at *3 n.4 (S.D. Cal. May 12, 2017). Under the new rules, the SSA will consider the persuasiveness of all medical opinions and evaluate them primarily on the basis of supportability and consistency. 20 C.F.R. § 404.1520c(a), (c)(1)-(2); 20 C.F.R. § 416.920c(a), (c)(1)-(2). Because Plaintiff's claim was filed before the effective date of the change, the decision is reviewed under the regulations in effect at that time, 20 C.F.R. § 404.1527 and 20 C.F.R. § 416.927.
If a treating physician's opinion is not accorded controlling weight, it still must be evaluated and weighed “pursuant to the following non-exclusive list: (1) whether the physician has examined the applicant, (2) the treatment relationship between the physician and the applicant, (3) the supportability of the physician's opinion, (4) the consistency of the opinion with the record, and (5) whether the physician is a specialist.” Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005) (citing 20 C.F.R. § 404.1527); see also 20 C.F.R. §§ 416.927(c)(1)-(5). Any other factors that may support or contradict the opinion should also be considered. 20 C.F.R. § 404.1527(c)(6); 20 C.F.R. § 416.927(c)(6). “While an ALJ is not required to set forth a detailed factor-by-factor analysis in order to discount a medical opinion from a treating physician, it must nonetheless be apparent from the ALJ's decision that he meaningfully considered each of the factors before deciding how much weight to give the opinion.” Dowling, 986 F.3d at 385 (citing Arakas, 983 F.3d at 107 n.16; Newton v. Apfel, 209 F.3d 448, 567 (5th Cir. 2000)) (emphasis in original). The Arakas Court observed that “SSR 96-2p further notes that ‘[i]n many cases, a treating [physician's] medical opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the test for controlling weight.'”[ Arakas, 983 F.3d at 106-07 (alterations and emphasis in original) (quoting SSR 96-2p). A “treating physician's testimony is ignored only if there is persuasive contradictory evidence.” Id. (emphasis in original) (quoting Coffman, 829 F.2d at 518).
SSR96-2p was rescinded effective March 27, 2017 as part of the amendment of the “Treating Physician Rule.” SSA-2012-0035, 2017 WL 3928298. However, it was in effect at the time the Plaintiff filed her claim.
Evaluations from sources who neither treat nor examine a claimant are considered under the same basic standards as evaluations of medical opinions from treating providers whose assessments are not given controlling weight. See 20 C.F.R. §§ 404.1527(c), (e), 416.927(c), (e). The ALJ must explain the weight given to these opinions. Id.; Casey v. Colvin, No. 4:14-cv-00004, 2015 WL 1810173, at *3 (W.D. Va. Mar. 12, 2015), adopted, 2015 WL 1810173, at *1 (Apr. 21, 2015); Napier v. Astrue, No. CIV. TJS-12-1096, 2013 WL 1856469, at *2 (D. Md. May 1, 2013). More weight is generally given to the opinion of a treating source over the opinion of a non-treating examining source. Similarly, the opinion of an examining source is typically given more weight than the opinion of a non-examining source. See 20 C.F.R. §§ 404.1527(c)(1), (2), 416.927(c)(1), (2).
B. Analysis of Opinion Evidence
Plaintiff takes issue with the ALJ's analysis of two opinions in the record: Dr. Ann Kulik (treating physician) and Dr. Stephen Schacher (consultative examiner). (Dkt. No. 16 at 17-21.) Plaintiff argues that the ALJ did not properly evaluate and weigh the opinion evidence of the two doctors according to the factors in 20 C.F.R. § 404.1527(c) and 416.927(c). (Dkt. No. 16 at 19-21.) Plaintiff argues that the ALJ failed to consider the consistency of the treating and examining physicians that Plaintiff needed a cane to ambulate and/or stand, and that the ALJ failed to consider and explain how the objective evidence regarding muscle spasms were inconsistent with the opined limitations. (Dkt. No. 16 at 20.) Although Plaintiff conflates the arguments regarding the two medical sources, the undersigned will separately address them.
1. Dr. Ann Kulik
As acknowledged by the ALJ, Dr. Ann Kulik was Plaintiff's treating physician at Palmetto Primary Care in Aiken, SC. (R. at 27-32.) The ALJ thoroughly related the medical records and opinion of Dr. Kulik but gave very little weight to the opinion. (R. at 27-32 and 37-38.) The medical records reflect that Dr. Kulik treated Plaintiff on six (6) different occasions, from May 9, 2016 through May 8, 2017. (R. at 27-32 and 37-38.) In her physical capacity form dated December 27, 2016, Dr. Kulik indicated (in pertinent part) that Plaintiff “could sit for an hour, stand for 20-30 minutes and walk for 10-15 minutes in an 8-hour workday.” (R. at 37.) Plaintiff could occasionally lift/carry up to 10 pounds; occasionally push/pull up to 10 pounds; occasionally stoop and kneel, but never crouch; could frequently twist and occasionally climb stairs; would need a job where she could shift positions constantly; would not need to elevate her legs with prolonged sitting. (R. at 37.) Dr. Kulik stated that Plaintiff must use a cane or other assistive device while engaged in occasional standing/walking. (R. at 38.) Dr. Kulik indicated that “she did not consider the claimant employable on a full time basis in a competitive work environment that did not accommodate the restrictions she had given.” (R. at 38.)
Dr. Kulik first mentions cane use in her opinion dated December 21, 2016. (R. at 30.) This was Plaintiff's fifth appointment with Dr. Kulik. Notably, Dr. Kulik weakens her own opinion by stating, on the face of the opinion form, that “there was no objective evidence supporting her opinion, as pain is subjective.” (R. at 38.) (See, infra, discussion why Plaintiff's subjective complaints are not fully supported by the medical and other evidence.) The ALJ also found that Dr. Kulik's opinion was “not supported by her own treatment notes.” (R. at 38.) Thus, as the ALJ stated, Dr. Kulik's opinion “appears based almost entirely on Plaintiff's subjective complaints.” (R. at 38.) The ALJ noted that:
Dr. Kulik saw the claimant for five outpatient visits from May 9, 2016 through December 27, 2016. The purpose of the December 2016 office visit was to have the doctor fill out claimant's disability forms (Exhibit 18F/28). It was at this office visit that claimant first told Dr. Kulik about her history of an injury at a cotton mill. This is the injury from which claimant feels all her limitations stem (Exhibit 18F/28). Prior to this visit on December 27, 2016, Dr. Kulik's primary diagnosis had been GERD, with other diagnoses of diffuse arthralgia, RLS, elevated blood pressure, obesity, high glucose level, and postmenopausal vaginal bleeding. (Exhibit 18F/10, 29). In fact, on the “Diffuse Arthralgia” forms that Dr. Kulik filled out for claimant's disability case, the doctor wrote, “Pt aware that I am not a disability doctor. Given subjective complaints, doubt can have gainful employment.”(R. at 38.)
The undersigned agrees that the medical record supports the ALJ's analysis. Although Plaintiff did have some positive examination and cervical spine diagnostic test findings, all of which are outlined and acknowledged in the ALJ's decision, (R. at 21, 26, 28, 36), other physical findings were normal or mild, including notations about normal gait, strength, tone, and extremity movement. (R. at 24-34.) Notably, in a sixth appointment with Dr. Kulik on May 8, 2017, after the December 2016 visit for the disability forms, the record shows that Plaintiff said she was doing well on Flexeril and her spasms were better with Cymbalta. She had increased joint pain but Dr. Kulik made no changes to her medication regimen for the diffuse arthralgia. (R. at 32, referencing Exhibit 21F.)
Further, Plaintiff's medical records dated after Dr. Kulik's treatment reflect much milder conditions. On May 25, 2018, Plaintiff saw FNP Moye, whose records reflect no muscle aches, weakness, no arthralgia/joint pain, no back pain and no swelling in her extremities, normal motor strength and tone, normal movement of all extremities and generalized spasm with a prescription for cyclobenzaprine. (R. at 32-33, referencing Exhibit 26F). In a follow up appointment with FNP Moye on October 1, 2018, Plaintiff had 0/10 for pain and her physical examination was unremarkable. (R. at 33.)
In the latest medical record, a July 23, 2019 appointment with PA Kerlin, Plaintiff complained of hip pain, but reported no arthralgia/joint pain. (R. at 33, referencing Exhibit 27F.) Plaintiff was “in no acute distress and she ambulated normally.” (R. at 33, referencing Exhibit 27F.)
The ALJ gave solid reasons for giving little weight to Dr. Kulik's opinion, highlighting that her opinion was contradicted by other substantial evidence of record. It is apparent from the ALJ's decision that she meaningfully considered each of the factors before deciding how much weight to give the opinion. Dowling, 986 F.3d at 385 (citing Arakas, 983 F.3d at 107 n.16; Newton, 209 F.3d at 567) (emphasis in original). The ALJ noted Dr. Kulik was from a primary care practice (not a specialist), (R. at 27), acknowledged the extent of the treating/examining relationship, and analyzed the consistency of her opinion with the rest of the record. (R. at 27-32, 37-38.) The undersigned therefore finds that Dr. Kulik's opinion is contradicted by other substantial evidence in the record, and that the ALJ did not err in discounting it.
2. Dr. Steven Schacher
Dr. Stephen Schacher was a consultative examiner who examined Plaintiff one time on July 10, 2015. (R. at 36.) The ALJ outlined Dr. Schacher's findings thoroughly and gave them partial weight. (R. at 36-37). Dr. Schacher's findings included diffuse arthritic changes with reduced range of motion to the knees, neck, low back and right ankle. (R. at 37.) He noted that claimant used a cane and was limping. The ALJ explained why partial weight was given:
Dr. Schacher is a physician and he examined the claimant on a single occasion. He stated that he was not provided with any of claimant's medical records to review. His findings were based only on his one-time examination. He noted that the claimant used a cane and was limping. These findings are not consistent with the medical evidence of record. His findings regarding claimant's muscle strength were very different from what was found at claimant's other orthopedic exam. (Exhibit 22F). Only partial weight is given to the opinion of Dr. Schacher in this case.(R at 37.)
Although Dr. Schacher was not Plaintiff's treating physician, the ALJ was still obligated to consider his medical opinion in evaluating Plaintiff's applications. See 20 C.F.R.§§ 404.1527(b) and 416.927(b) (requiring ALJ to consider all medical opinions of record); Wilbanks v. Berryhill, No. 1:17-cv-1069-JMC-SVH, 2018 WL 4941121, at *10 (D.S.C. Feb. 7, 2018), adopted sub nom. Wilbanks v. Comm'r of Soc. Sec. Admin., 2018 WL 4476118 (D.S.C. Sept. 19, 2018). As with Dr. Kulik, the ALJ gave solid reasons for giving little weight to Dr. Schacher's opinion, highlighting that 1) he was an M.D. who examined Plaintiff; 2) on a single occasion; 3) who did not have access to Plaintiff's medical records; and 4) whose opinion was contradicted by other substantial evidence of record, as discussed supra. In light of the conflicting medical evidence, specifically the medical records of mild impairment after the date of both Dr. Schacher's and Dr. Kulik's opinions and treatment records, the ALJ appropriately evaluated the opinion evidence. See Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996) (“The duty to resolve conflicts in the evidence rests with the ALJ, not with a reviewing court.”). It is again apparent from the ALJ's decision that she meaningfully considered each of the factors before deciding how much weight to give the opinion. Accordingly, the ALJ appropriately evaluated Dr. Schacher's opinion and provided substantial support for discounting the decision. Dowling, 986 F.3d at 385 (citing Arakas, 983 F.3d at 107 n.16; Newton, 209 F.3d at 567) (“While an ALJ is not required to set forth a detailed factor-by-factor analysis in order to discount a medical opinion from a treating physician, it must nonetheless be apparent from the ALJ's decision that he meaningfully considered each of the factors before deciding how much weight to give the opinion.”).
Plaintiff also generally argues that the ALJ did not explain or consider how the objective medical evidence regarding muscle spasms was consistent with the opined limitations. (Dkt. No. 16 at 20.) There was evidence in the record of occasional muscle spasms in 2015 and 2016. (R. at 26, 27, 29, 36.) By November of 2016 and May of 2017, as noted by the ALJ, the spasms were better with Cymbalta. (R. at 29, 32). There is mention of only generalized spasms treated with cyclobenzaprine in the medical records from 2018, and no mention of muscle spasms in the medical records from 2019. As discussed infra, the ALJ noted that Plaintiff's pain was treated very conservatively with oral medication. (R. at 34.)
IV. Analysis of Plaintiff's Subjective Symptomology
Plaintiff further argues that “the ALJ failed to explain which of Plaintiff's statements ‘undercut her subjective evidence of pain intensity as limiting her functional capacity.'” (Dkt. No. 16 at 21.) In particular, Plaintiff contends that the ALJ relied exclusively on medical evidence in her “credibility” determination. (Id. at 22.) On the other hand, the Commissioner argues that Plaintiff makes only a broad argument that the ALJ improperly evaluated Plaintiff's subjective complaints and that substantial evidence supports that evaluation. (Dkt. No. 17 at 16.) For the reasons set forth below, the undersigned agrees with the Commissioner.
The ALJ must follow a two-step process when evaluating a plaintiff's subjective complaints. Craig, 76 F.3d at 594 (“[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.” Id. (internal quotation omitted). Next, the ALJ must expressly consider “the intensity and persistence of the claimant's [symptom] and the extent to which it affects her ability to work.” Id. 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.[ ALJs must further:
Social Security Ruling 16-3p rescinded and superseded SSR 96-7p, on March 28, 2016. See SSR 16-3p, 2017 WL 5180304, at *13. The ALJ's decision was issued on November 13, 2019. (R. at 39.) As such, the undersigned has analyzed Plaintiff's allegations under SSR 16-3p. See SSR 16-3p, 2017 WL 5180304, at *13 n.27 (“When a Federal court reviews our final decision in a claim, we expect the court will review the final decision using the rules that were in effect at the time we issued the decision under review.”) The undersigned notes that SSR 16-3p discontinues use of the term “credibility;” however, “the methodology required by both SSR 16-3p and SSR 96-7p are quite similar. Under either, the ALJ is required to consider the claimant's report of his own symptoms against the backdrop of the entire case record.” Best v. Berryhill, No. 0:15-cv-2990-DCN, 2017 WL 835350, at *4 n.3 (D.S.C. Mar. 3, 2017) (internal citations omitted).
limit their evaluation to the individual's statements about his or her symptoms and the evidence in the record that is relevant to the individual's impairments. In evaluating an individual's symptoms, our adjudicators will not assess an individual's overall character or truthfulness in the manner typically used during an adversarial court litigation. The focus of the evaluation of an individual's symptoms should not be to determine whether he or she is a truthful person. Rather, our adjudicators will focus on whether the evidence establishes a medically determinable impairment that could reasonably be expected to produce the individual's symptoms and given the adjudicator's evaluation of the individual's symptoms, whether the intensity and persistence of the symptoms limit the individual's ability to perform work-related activities. . . .Id., at *11.
A plaintiff's subjective complaints “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 [symptoms] the claimant alleges she suffers.” Craig, 76 F.3d at 595. An ALJ should consider the following relevant factors when evaluating subjective complaints: (1) the plaintiff's daily activities; (2) the location, duration, frequency, and intensity of the plaintiff's pain or other symptoms; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medication the plaintiff takes or has taken to alleviate pain or other symptoms; (5) treatment, other than medication, the plaintiff receives or has received for relief of pain or other symptoms; (6) any measures the plaintiff uses or has used to relieve pain or other symptoms (e.g., lying flat, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and (7) other factors concerning the plaintiff's functional limitations and restrictions due to pain or other symptoms. See 20 C.F.R. § 404.1529(c)(3).
When viewing the decision as a whole, it is clear that the ALJ applied the appropriate analysis. The ALJ explained that after carefully considering all of the evidence, Plaintiff's statements about the intensity, persistence and limiting effects of her symptoms were not entirely consistent with the medical evidence and other evidence in the record. (R. at 24.) The ALJ discussed the objective medical evidence, including: an x-ray in 2015 showing cervical spondylosis with no acute fracture or sublaxation (R. at 37); an MRI in 2016 showing small central disc herniation with no significant central canal stenosis or foraminal stenosis (R. at 28); and all of the objective findings in the medical records (R. at 24-38). The ALJ considered the treatment Plaintiff was recommended and/or received: “Treatments that were offered to her were very conservative, but there was no evidence that the claimant followed up with therapy for these conditions.” (R. at 34.)
The ALJ also discussed Plaintiff's activities of daily living throughout the decision. (R. at 22-23 and 36.) The ALJ considered Plaintiff's own statements about her pain at the medical appointments, as well as at her hearing testimony. (R. at 22-34.) The ALJ highlighted that: “The medical evidence of record shows that the claimant has diffuse arthralgia and she was sometimes diagnosed with generalized osteoarthritis. . . . Her complaints were treated very conservatively with oral medications. At the hearing, the claimant testified that she only took over-the-counter medications for her pain.” (R. at 34.) The ALJ discussed the medical evidence where Plaintiff had some positive examination and cervical spine diagnostic test findings, (R. at 21, 26, 28, and 36), and where Plaintiff had normal examination findings, relief from medication, and 0/10 pain in the last two medical records in 2018 and 2019 (R. at 24-34). It is apparent from the ALJ's decision and the record that by 2018 and 2019 Plaintiff was reporting no muscle aches, no weakness, no arthralgia/joint pain, no back pain, and no swelling in the extremities. (R. at 32-33.) In her last medical record dated July 23, 2019, she was in “no acute distress and she ambulated normally.” (R. at 33.)
Plaintiff cites to the Fourth Circuit case of Arakas, for the proposition that “while there must be objective medical evidence of some condition that could reasonably produce the pain, there need not be objective evidence of the pain itself or its intensity.” (Dkt. No. 16 at 23.) Plaintiff argues that the ALJ improperly discredited Plaintiff's statements about the severity, persistence, and limiting effects of her symptoms because she did not find them consistent with the medical evidence. (Id. at 24.) Plaintiff also argues that the ALJ relied solely on the lack of objective evidence. The undersigned disagrees.
The Commissioner distinguishes the facts of Arakas in its brief. The Commissioner correctly notes that: “In Arakas, the Fourth Circuit focused exclusively on the standard for evaluating fibromyalgia, an impairment that tends to elude objective testing - which is not an issue in this case.” (Dkt. No. 17 at 18.) The Fourth Circuit held that the ALJ erred by placing undue emphasis on objective medical evidence when dealing with a disease whose symptoms are entirely subjective. Arakas, 983 F.3d at 97-98. The Fourth Circuit held that “ALJs may not rely on objective medical evidence (or the lack thereof) - even as just one of multiple factors - to discount a claimant's subjective complaints regarding symptoms of fibromyalgia or some other disease that does not produce such evidence.” Id. at 97. The undersigned agrees with the Commissioner that this case does not present an issue about a disease with no objective medical evidence. This case involves spine and lower extremity impairments.
Also, the ALJ did not rely exclusively on objective medical evidence in weighing Plaintiff's subjective complaints. The ALJ relied on the most recent medical records where Plaintiff did not claim to have the significant pain she had in prior medical visits. In fact, as discussed supra, the last two years of medical records show Plaintiff claimed no muscle aches, no weakness, no arthralgia/joint pain, and no back pain. (R. at 33.) The ALJ accurately recounted Plaintiff's subjective complaints, her activities of daily living, and the objective medical evidence. As argued by the Commissioner, the ALJ also accounted for some of Plaintiff's subjective statements when limiting her to light work with additional limitations. (Dkt. No. 17 at 18.) The ALJ considered the appropriate factors and substantial evidence supports the ALJ's analysis of Plaintiff's subjective complaints.
While Plaintiff may disagree with the ALJ's decision, the Court may not “reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ].” Craig, 76 F.3d 585, 589 (4th Cir. 1996); Hancock, 667 F.3d at 472; Arakas, 983 F.3d at 95; Dowling, 986 F.3d at 383. Here, the ALJ made reasonable conclusions and supported those conclusions with substantial evidence. The undersigned therefore recommends that the Commissioner's decision be affirmed.
CONCLUSION
For the foregoing reasons, the undersigned RECOMMENDS that the Commissioner's decision be AFFIRMED.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).