Opinion
CIVIL ACTION NO. 9:18-3099-RMG-BM
01-07-2020
Bobby Hope, Plaintiff, v. Andrew M. Saul, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
The Plaintiff filed the Complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner wherein he was denied disability benefits. This case was referred to the undersigned for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a)(D.S.C.).
Plaintiff applied for Disability Insurance Benefits (DIB) on March 19, 2015, alleging disability beginning January 1, 2015 due to back and shoulder problems, as well as arthritis and hyperhydosis (excessive sweating). (R.pp. 199, 222). However, because Plaintiff's last day insured was the day before (December 31, 2014), Plaintiff subsequently amended his disability onset date to that date. (R.pp. 81-82). Plaintiff's claim was denied both initially and upon reconsideration. Plaintiff then requested a hearing before an Administrative Law Judge (ALJ), which was held on August 14, 2017. (R.pp. 78-118). The ALJ thereafter denied Plaintiff's claim in a decision issued November 16, 2017. (R.pp. 65-72). The Appeals Council denied Plaintiff's request for a review of the ALJ's decision, thereby making the determination of the ALJ the final decision of the Commissioner. (R.pp. 1-7).
In order to be entitled to disability insurance benefits, Plaintiff must show that his impairments became disabling prior to the date his eligibility for benefits expired. See 42 U.S.C. § 423(a) (1)(A), (c)(1)(B); Johnson v. Barnhart, 434 F.3d 650, 655-656 (4 Cir.2005). Even if the evidence establishes that Plaintiff's impairments subsequently became disabling, if the evidence does not establish that his impairments were disabling by on or before the date his eligibility expired, then he can not obtain DIB.
Plaintiff then filed this action in United States District Court. Plaintiff asserts that there is not substantial evidence to support the ALJ's decision, and that the decision should be reversed and remanded for further review, or for an outright award of benefits. The Commissioner contends that the decision to deny benefits is supported by substantial evidence, and that Plaintiff was properly found not to be disabled.
Scope of review
Under 42 U.S.C. § 405(g), the Court's scope of review is limited to (1) whether the Commissioner's decision is supported by substantial evidence, and (2) whether the ultimate conclusions reached by the Commissioner are legally correct under controlling law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Richardson v. Califano, 574 F.2d 802, 803 (4th Cir. 1978); Myers v. Califano, 611 F.2d 980, 98 2-983 (4th Cir. 1980). If the record contains substantial evidence to support the Commissioner's decision, it is the court's duty to affirm the decision. Substantial evidence has been defined as:
evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify refusal to direct
a verdict were the case before a jury, then there is "substantial evidence." [emphasis added].Hays, 907 F.2d at 1456 (citing Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966)); see also Hepp v. Astrue, 511 F.3d 798, 806 (8th Cir. 2008)[Nothing that the substantial evidence standard is even "less demanding than the preponderance of the evidence standard"].
The Court lacks the authority to substitute its own judgment for that of the Commissioner. Laws, 368 F.2d at 642. "[T]he language of [405(g)] precludes a de novo judicial proceeding and requires that the court uphold the [Commissioner's] decision even should the court disagree with such decision as long as it is supported by substantial evidence." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
Discussion
Plaintiff, who was thirty-seven (37) years old when he alleges he became disabled, has a high school education and past relevant work experience as a monument setter and a production assembler. (R.pp. 65, 67, 71, 223). In order to be considered "disabled" within the meaning of the Social Security Act, Plaintiff must show that he has an impairment or combination of impairments which prevent him from engaging in all substantial gainful activity for which he is qualified by his age, education, experience, and functional capacity, and which has lasted or could reasonably be expected to last for a continuous period of not less than twelve (12) months. After a review of the evidence and testimony in the case the ALJ determined that, although Plaintiff does suffer from the "severe" impairment of disorders of the lumbar spine, through his date last insured he retained the residual functional capacity (RFC) to perform a limited range of medium work with this impairment. (R.pp. 67-68). The ALJ further determined that Plaintiff's was capable of performing his past relevant work as a production assembler through the date he was last insured, and that he was therefore not entitled to disability benefits. (R.pp. 71-72).
An impairment is "severe" if it significantly limits a claimant's physical or mental ability to do basic work activities. See Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987).
Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds." 20 C.F.R. §§ 404.1567(c), 416.967(c).
Plaintiff argues that in reaching his decision, the ALJ erred by improperly rejecting the opinion of his treating physician, Dr. Aydrian Thomas, as to the extent of Plaintiff's impairment and limitations, and by failing to properly evaluate the demands of Plaintiff's past relevant work in determining that Plaintiff retained the RFC to perform this work. After careful review and consideration of the decision, the undersigned is constrained to agree with the Plaintiff that the ALJ failed to adequately explain his consideration of the medical records and opinions of his treating physician, Dr. Thomas, thereby necessitating a remand of Plaintiff's claim for further evaluation.
A treating physician's opinion is ordinarily entitled to great weight; see Craig v. Chater, 76 F.3d 585, 589-590 (4th Cir. 1996)[Noting importance of treating physician opinion]; is entitled to deference, and must be weighed using all of the factors provided for in 20 C.F.R. § 404.1527. See SSR 96-2p. Under these regulations, a treating source's opinion on the nature and severity of an impairment is entitled to "controlling weight" where it is supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the case record. Here, however, the ALJ determined that Dr.Thomas' opinions were entitled to "little weight" because they were "not consistent with the other medical evidence of record, which shows only minimal objective findings". (R.p. 70). In reaching this conclusion, however, the ALJ makes several findings that are not supported by substantial evidence in the case record, thereby undermining the rationale for his decision. Laws, 368 F.2d 640 [Substantial evidence is "evidence which a reasoning mind would accept as sufficient to support a particular conclusion"].
It is noted that for claims filed after March 27, 2017, the regulations have been amended, and that several of the prior Social Security Rulings, including SSR 96-2p, have been rescinded. The new regulations provide that the Social Security Administration "will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources." 20 C.F.R. § 416.920c (2017). However, the claim in the present case were filed before March 27, 2017, and Plaintiff's claim has therefore been analyzed pursuant to the treating physician rule set out above.
Initially, the undersigned notes that an effective review of Plaintiff's claim in this case is frustrated by the fact that there are few medical records to consider other than those of Dr. Thomas, while Dr. Thomas' records themselves provide little insight into the severity (or non-severity) of Plaintiff's condition. Even so, Dr. Thomas is Plaintiff's family practitioner, and has been seeing him since at least 2010. Moreover, the evidence confirms that Plaintiff has had a history of back problems dating back many years, including having had back surgery in 2004 and again in 2012. (R.pp. 87, 89-90, 92-93). Plaintiff's 2012 surgery was a diskectomy, which he underwent after an MRI in April 2012 revealed a broad disc protrusion impinging on Plaintiff's bilateral S1 nerve roots (R.p. 285), and Dr. Thomas' records since 2012 reflect complaints by the Plaintiff of continuing lower back pain aggravated by daily activities (with the severity level generally noted to be moderate). It is also instructive to note that in the time period leading up to and shortly after Plaintiff's alleged disability onset date, Dr. Thomas' records reflect that Plaintiff found it necessary to take opioid pain medications for pain on a daily basis. (R.pp. 294, 301, 304, 306). As such, there is no disputing that Plaintiff suffers from significant back issues, and indeed the ALJ found in his decision that Plaintiff had the severe impairment of disorders of the lumbar spine. (R.p. 67).
However, notwithstanding this finding, the ALJ nonetheless concluded that Plaintiff retained the RFC for medium work, which has a fairly significant lifting requirement (up to 50 pounds), and that he further retained the ability to frequently kneel, crouch, and climb ladders, ropes, and scaffolds, and could even occasionally crawl and stoop. (R.p. 68). In reaching this conclusion, the ALJ noted Dr. Thomas' records, which concedely reflect only minimal objective findings for the relevant time period. For example, on September 9, 2014, Plaintiff presented complaining about excessive sweating. While Plaintiff was positive for back pain, all four of his extremities were observed to be normal with no other problems noted. (R.pp. 307-308). On October 21, 2014, Plaintiff presented complaining of left shoulder pain. (R.pp. 305-306). On November 6, 2014, Plaintiff continued to complain of shoulder pain aggravated by lifting and movement, for which he received a joint injection. (R.pp. 302-303). On January 19, 2015 (which was now after Plaintiff alleges his condition had become disabling on December 31, 2014), Plaintiff presented complaining of moderate low back pain, but noted that his symptoms were relieved by medication. (R.p. 299). On March 30, 2015, Plaintiff was still having moderate pain bilaterally in his back, aggravated by movements such as walking and standing. (R.p. 295). On April 17, 2015 Plaintiff's lower back pain was noted to be moderate to severe, while his lumbar region was noted to be tender. (R.pp. 291, 293). As noted, none of these records contain much in the way of objective findings, a point emphasized by the ALJ. Plaintiff did undergo an MRI of his lumbar spine on April 22, 2015, which generally reflected normal findings other than with respect to L5-S1, where his 2012 diskectomy had been performed. Post surgical changes consistent with fusion at that level were identified, including increased soft tissue surrounding the left S1 nerve root that was identified as being suspicious for scar tissue. (R.p. 318). Again, however, this MRI reflects only minimal objective findings as to the seriousness of Plaintiff's condition.
However, there is also no question that Plaintiff did suffer from a back condition during this time period that was so severe he was having to take opioids daily for pain relief. As for Dr. Thomas' opinions, on January 20, 2015 he authored a "to whom it may concern" letter in which he stated that Plaintiff had been suffering from low back pain with radiculopathy since 2010 (progressing to the point where it required back surgery in 2012), that following surgery Plaintiff's symptoms had returned, and that "[t]oday, the symptoms are worsening, preventing him from engaging in his work-related activities. We ask that you consider this information when considering him for disability." (R.p. 285). On October 15, 2015 (ten months after Plaintiff's eligibility for DIB had expired), Dr. Thomas filled out a Social Security Questionnaire provided by Plaintiff's attorney in which he opined, inter alia, that Plaintiff suffered from nerve root compression and lumbar spinal stenosis which rendered him unable to walk a block at a reasonable pace on rough or uneven surfaces, unable to climb even a few steps at a reasonable pace with the use of a single hand rail, and that he was only able to carry out routine ambulatory activities such as shopping and banking with great difficulty. (R.pp. 348-349).
Plaintiff's recent work at that time had been as a monument setter, considered a "heavy" work activity. (R.pp. 71, 260).
As noted, the ALJ gave little weight to Dr. Thomas' opinions because Plaintiff's medical records reflected only minimal objective findings. However, in doing so he failed to note or address the contrary evidence in these records showing that Plaintiff's back pain was sufficiently severe to require a daily narcotic pain regimen, or explain why Plaintiff could perform medium work level lifting requirements at a full time job with this pain level. Significantly, the ALJ also makes several factual misstatements in reaching his conclusions. For example, he criticizes Dr. Thomas for indicating the presence of radiculopathy even though "physical examinations show no radicular symptoms". (R.p. 70). However, Dr. Thomas' treatment notes clearly reflect radicular symptoms in 2013 and 2014 (R.pp. 272, 277-278), findings which continue into 2015. See (R.pp. 403-406) [Records of new physician William Lehman]. The ALJ also states as a basis for his decision that there is "no indication [in Plaintiff's records] of limitation of motion or significant difficulty walking". (R.p. 70). However, Plaintiff's records in fact are replete with entries reflecting problems with ambulation and that Plaintiff's symptoms were aggravated by daily activities. See generally, (R.pp. 274, 277, 279, 281, 291, 295, 299, 302). As such, the medical records do not support the ALJ's finding in his decision that there is "no indication of limitation of motion or significant difficulty walking" in Plaintiff's medical records.
Finally, the ALJ also states in his decision that "if the claimant was [as] functionally limited as testified, it is reasonable to expect that at least some of those limitations would be readily apparent to the treating and examining physician who would then record them . . . . Yet, the treating and examining physicians did not record such observations during [Plaintiff's] physical examinations". (R.p. 71). However, Dr. Thomas' records clearly reflect that Plaintiff would incur pain when lifting, pulling and pushing, that Plaintiff's pain is aggravated by kneeling and squatting, that Plaintiff was positive for back pain on examination, that he had joint tenderness severe enough to cause him to limp, and that Plaintiff's pain is aggravated by lifting, standing and walking. See generally (R.pp. 274, 277, 291, 295, 302, 305, 307). Again, it is unclear based on this record how the ALJ concluded in his decision that "the treating and examining physicians did not record such observations during the physical examination". (R.p. 71). As such, the undersigned concludes that the ALJ's findings are not supported by substantial evidence in the case record. See Bissinger v. Comm'r of Soc. Sec., No. 13-cv-1602, 2014 WL 5093981, *5-6 (M.D. Fla. Oct. 9, 2014) [finding that a misstatement of fact is not harmless if the misstatement is material or integral to the ALJ's ultimate decision]; see also White v. Comm'r of Soc. Sec., No. 09-1208, 2010 WL 3467413, at *15-16 (M.D. Fla. Aug. 3, 2010)[finding that the ALJ's decision was not supported by substantial evidence because the ALJ misstatement of fact substantially affected the ALJ's ultimate conclusion], report and recommendation adopted, 2010 WL 3448617 (M.D. Fla. Sept. 1, 2010).
None of these errors, of course, means that Plaintiff is disabled. However, these errors undermine the stated bases for the ALJ's conclusions as set forth in his decision, thereby requiring remand for a proper evaluation of the case record. Moreover, it is further unclear from the record and the decision how or on what basis the ALJ determined that Plaintiff, notwithstanding his severe lumbar impairment, could nonetheless perform medium level work with the postural requirements set forth in the RFC finding. Based on the conclusory nature of the ALJ's findings, the undersigned is simply unable to find that the conclusion that Plaintiff is capable of performing the medium level work assigned is supported by substantial evidence. Cf. Cotter v. Harris, 642 F.2d 700 (3rd Cir. 1981) [Listing cases remanded because of failure to provide explanation or reason for rejecting or not addressing relevant probative evidence]. While the ALJ may ultimately determine that Plaintiff retained the RFC to perform substantial gainful activity through his date last insured, in order for this Court to uphold such a decision as supported by substantial evidence, the ALJ must properly consider and evaluate the evidence and explain his rationale for reaching the decision sufficient to build "an accurate and logical bridge from the evidence to his conclusion[s]". Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (internal quotation marks omitted); Bray v. Commissioner of Social Security Admin., 554 F.3d 1219, 1225 (9th Cir. 2009) ["Long-standing principles of administrative law require us to review the ALJ's decision based on the reasoning and factual findings offered by the ALJ - not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking."]. The ALJ failed to do so here, thereby requiring remand.
Finally, with respect to the remainder of Plaintiff's claims of error, the ALJ will be able to reconsider and re-evaluate the evidence in toto as part of the reconsideration of this claim. Hancock v. Barnhart, 206 F.Supp.2d 757, 763-764 (W.D.Va. 2002)[On remand, the ALJ's prior decision has no preclusive effect, as it is vacated and the new hearing is conducted de novo].
Conclusion
Based on the foregoing, and pursuant to the power of this Court to enter a judgment affirming, modifying or reversing the decision of the Commissioner with remand in Social Security actions under Sentence 4 of 42 U.S.C. § 405(g), it is recommended that the decision of the Commissioner be reversed, and that this case be remanded to the Commissioner for re-evaluation of the evidence as set forth hereinabove, and for such further administration action as may be necessary. See Shalala v. Schaefer, 509 U.S. 292 (1993).
The parties are referred to the notice page attached hereto.
/s/_________
Bristow Marchant
United States Magistrate Judge January 7, 2020
Charleston, South Carolina
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).