Opinion
C/A No. 5:19-cv-01019-DCC-KDW
06-19-2020
Patrick Abraham Johnson, Plaintiff, v. Andrew M. Saul, Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This appeal from a denial of social security benefits is before the court for a Report and Recommendation ("Report") pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying his claim for Disability Insurance Benefits ("DIB") pursuant to the Social Security Act ("the Act"). The issue before the court is whether the Commissioner's decision is supported by substantial evidence. For the reasons that follow, the undersigned recommends that the Commissioner's decision be reversed and remanded for further administrative action. I. Relevant Background
A. Procedural History
On May 9, 2014, Plaintiff filed an application for DIB under Title II of the Act, alleging a disability onset date of December 19, 2013. Tr. 190-91. Plaintiff's application was denied initially, Tr. 79, and upon reconsideration, Tr. 89. Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). Tr. 105-06. The administrative hearing was held on May 19, 2017. Tr. 30-67. On April 18, 2018, the ALJ issued an unfavorable decision, finding Plaintiff not disabled within the meaning of the Act. Tr. 11-24. Plaintiff requested review of the ALJ's decision on April 20, 2018. Tr. 188-89. On February 4, 2019, the Appeals Council denied Plaintiff's request for review. Tr. 1-6. Thus, the ALJ's decision became the final decision of the Commissioner. Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on April 8, 2019. ECF No. 1.
B. Plaintiff's Background
Plaintiff was born in January 1976 and 37 years old on his alleged onset date of December 19, 2013. Tr. 226. In his May 9, 2014 Disability Report-Adult form Plaintiff indicated that he completed the 12th grade in 1994, did not attend special education classes, and he completed specialized training in 1996 to become a professional truck driver. Tr. 238. Plaintiff listed his past relevant work ("PRW") as truck driver from September 1996 to December 19, 2013. Id. Plaintiff indicated that he stopped working because of his conditions which he listed as diverticulitis, high blood pressure, type 2 diabetes, and neuropathy. Tr. 237. Plaintiff listed his height as 6' and his weight as 225 pounds; Plaintiff indicated that his conditions caused pain or other symptoms. Id.
In a Disability Report-Appeal dated January 23, 2015 Plaintiff described how his conditions affected his ability to care for his personal needs. Tr. 266. Plaintiff noted: "Because of the neuropathy in my hands, my kids have to tie my shoes, and button my shirts for me." Id. Plaintiff described the following changes that occurred since his last disability report:
I can't stand on my feet for a long time because of the neuropathy, and my eyesight has worsened due to uncontrolled diabetes. I have shortness of breath all of the time which makes it difficult to get around. My diverticulitis flares up at any time which makes it hard to leave home. The flare ups are very painful and I don't know when it is going to happen. My kids have to do the chores and yardwork as I am no longer able to.Id.
In a subsequent Disability Report-Appeal dated May 2, 2015, Plaintiff indicated a change in his condition as of April 2, 2015. Tr. 270. Plaintiff indicated that he was switched from Metformin in pill form to insulin injections three times a day for diabetes. Id. Plaintiff stated that because of this he was no longer able to drive and had to relinquish his Commercial Driver's License. Id. Plaintiff indicated a change in his daily activities, noting that he could not stand for more than three-to-five minutes at a time, and his children and his brother have to help him "with chores, getting dressed, and with cooking at times." Tr. 274. Plaintiff also indicated that he was no longer able to do yard work. Id.
C. The Administrative Proceedings
Plaintiff's administrative hearing took place on May 19, 2017. Tr. 30. Plaintiff was present, along with his attorney and Vocational Expert ("VE") Amsi Ogren. Id. ALJ Debra Bice appeared via video from St. Louis, Missouri and the VE participated by telephone. Tr. 32-33.
Although identified phonetically in the transcript as Amsi Ogren, the VE's name, as listed in his resume, is Kenneth E. Ogren. Tr. 301.
The ALJ asked Plaintiff's counsel to provide clarification on the chronology of Plaintiff's impairments. Tr. 34. Counsel indicated initially that Plaintiff had two primary impairments—diabetes with associated symptoms of neuropathy, and Sjogren's syndrome. Tr. 34. Counsel then stated that Plaintiff's "primary issues are the effects of the sarcoidosis," Tr. 35, and he also noted that Plaintiff has gout, headaches related to diabetes or hypertension, and diverticulitis, Tr. 36. Counsel concluded by stating that the main issues "would be the diabetes, the Sjogren's, the sarcoidosis and . . . issues with the diverticulitis as well." Tr. 37.
Sjogren's syndrome is an immune system disorder identified by its two most common symptoms — dry eyes and a dry mouth. See https://www.mayoclinic.org/diseases-conditions/sjogrens-syndrome/symptoms-causes/syc-20353216 (last visited June 11, 2020).
Sarcoidosis is a disease characterized by the growth of tiny collections of inflammatory cells (granulomas) in any part of your body — most commonly the lungs and lymph nodes. But it can also affect the eyes, skin, heart and other organs. Sarcoidosis can begin with these signs and symptoms: fatigue; swollen lymph nodes; weight loss; and pain and swelling in joints, such as the ankles. Sarcoidosis most often affects the lungs and may cause lung problems, such as: persistent dry cough; shortness of breath; wheezing; and chest pain. See https://www.mayoclinic.org/diseases-conditions/sarcoidosis/symptoms-causes/syc-20350358 (last visited June 15, 2020).
1. Plaintiff's Testimony
In response to questions from the ALJ Plaintiff testified that he was 41 years old and a high school graduate. Tr. 38. Plaintiff confirmed that for most of his career he was a truck driver and hauled coal and freight. Id. Plaintiff testified that when he hauled freight it would be loaded by forklift and he would sometimes have to unload it by hand; he stated that the coal was in a dump truck. Id. Plaintiff testified that he stopped working for Amaresco in December 2013 but received retirement earnings of $20,000 from them in 2015. Tr. 39. Plaintiff stated that in May 2015 he attempted to work for Beach Island Timber but was able to work only two days before passing out on the job. Id. Plaintiff confirmed that he earned a little over $5000 in 2014 working as a truck driver for Beach Island Timber. Tr. 40-41. Plaintiff stated that he worked for "maybe a month . . . just on the weekends." Tr. 41.
The correct spelling of the company name is Beech Island Timber. See Pl.'s Work History Report, Tr. 207.
Plaintiff stated that in 2013, when he was working, he began having symptoms related to diabetes and his employer encouraged him to go to the doctor. Tr. 43. Plaintiff was diagnosed with diabetes but was unable to bring it under control with medication and had to begin using insulin. Id. Plaintiff stated that he began having vision problems and was also diagnosed with neuropathy in his hands and feet. Tr. 43-44. Plaintiff testified that he began seeing his current treating physician, Dr. Mary Miller, in early 2015; prior to that he was going to MCG for treatment in their indigent program because he was not working and did not have insurance. Tr. 44. Plaintiff testified that as a result of the diabetes he was ineligible to drive but he did not lose his CDL license. Tr. 45. Plaintiff stated that in 2014 he was at home and was cared for by his daughter and son. Id. Plaintiff stated that because of his vision problems his daughter drove him where he needed to go. Tr. 45-46. Plaintiff testified that his condition kept getting worse every week, and doctors were unable to pinpoint what was wrong. He stated that they initially diagnosed him with lupus, but when the medicine did not work, he was sent for more tests and was diagnosed with Sjorgren's. Tr. 46. After his condition continued to worsen, he was hospitalized. Id.
Medical College of Georgia Health Medical Center located in Augusta, Georgia. See Tr. 325.
Plaintiff testified that during the period prior to his hospitalization he had problems sitting and "could sit for a little while and get up, or [he'd] just have to go lay across the bed." Tr. 46. Plaintiff stated that he thought he was experiencing medication side effects, "but the whole time it was the sarcoidosis . . . ." Id. Plaintiff testified that before the hospitalization he "couldn't stand no longer than maybe five, ten minutes, and couldn't walk a good maybe 20-30 yards . . . ." Tr. 47. Plaintiff testified he was using a cane and had begun using it in February 2015. Id. Plaintiff testified that he had problems lifting, and he could hardly do anything other than sit or lie down due to feeling fatigued. Id. Plaintiff confirmed that he began taking Plaquenil in June 2016 that was prescribed by Dr. Sampath Manickam after his surgery, and he is also taking Methotrexate that was prescribed by a rheumatologist. Tr. 47-48. Plaintiff denied experiencing any side effects from the medications. Tr. 48. He stated that he experiences pain from the neuropathy all day, but the medication "eases it down a little bit." Tr. 49. Plaintiff testified that he has shortness of breath and uses an inhaler that he started using in March 2015. Id.
Plaintiff testified that now that he has been diagnosed and takes medication, he still has problems sitting. Tr. 49. Plaintiff stated that his legs will start to go numb, and if he sits too long he has to take off his shoes because of neuropathy pain. Tr. 49-50. Plaintiff indicated the pain is in both legs from the hips down, but he did not know if it was from the sarcoidosis or from the neuropathy. Tr. 50. Plaintiff testified that when he walks his legs will sometimes swell and ache; sometimes he uses crutches or his cane, and occasionally he will use a wheelchair. Id. Plaintiff stated that he used the wheelchair for about three months in the summer of 2016. Tr. 50-51. Plaintiff testified that he can lift a gallon of milk but would not be able to perform a job that required frequent lifting of that amount. Tr. 51. Plaintiff explained that he is left-handed and for about two years has had tendinitis in his left arm, and his right shoulder has been dislocated. Id. Plaintiff testified that he currently weighed 216 pounds, down from 276 pounds. Tr. 51-52. Plaintiff stated that he lost the weight in 2015 when he was sick and unable to eat. Tr. 52.
In response to questions from his counsel, Plaintiff testified that he takes Methotrexate for the sarcoidosis. Tr. 52. Counsel noted that Plaintiff indicated he had issues with shortness of breath, but there were references in the file about Plaintiff walking a couple of miles for exercise. Tr. 53. Plaintiff explained that was before he "got down sick." Id. Plaintiff testified that his doctor kept encouraging him to walk and he continued to tell her that he was not able to walk. Tr. 54. Plaintiff stated that the notations in the treating notes that he was walking a certain amount continued past the time that he was actually walking. Id.
Plaintiff testified that he sometimes shops with his daughter, but he always uses a cart. Tr. 55. Plaintiff confirmed that if he walks for more than a few minutes without stopping to rest he gets short of breath. Id. Plaintiff testified that he spends the majority of his day lying down across the bed. Id. Plaintiff confirmed that he is following the treatment regimen for his diabetes which includes three 55-milligram shots of insulin daily. Tr. 56. Plaintiff testified that his blood sugar is difficult to control, and his insulin is on a sliding scale. Id. Plaintiff affirmed that he has a significant amount of fatigue and he also stated that it was depressing being unable to do the things he used to do. Tr. 57. Plaintiff testified that he hardly has feeling in his hands and he "could pick up something and drop it or whatever and you not know." Id. Plaintiff testified that he has flare-ups from diverticulitis that can occur at any time but those requiring hospitalization were maybe once a year. Tr. 58. Plaintiff indicated that he continues to have abdominal pain that doctors tried to treat with Prednisone, but that made his sugar levels out of control even with insulin. Id. Plaintiff testified that he is no longer able to fish or do things with his kids because of the tendinitis in his arms. Tr. 59. Counsel asked if he would be able to do a job driving a truck that did not involve loading or unloading and Plaintiff responded that there would not be a job. Tr. 59-60. He testified: "Every truck driving job you've got to either unload or climb up in there, top the load, or something. Everything's going to be manually and physical." Tr. 60.
In response to additional questions from the ALJ, Plaintiff testified that he has been prescribed pain medications of Oxycontin and Dilaudid when he has flare-ups from the diverticulitis. Tr. 60. Plaintiff testified that the last time he had a flare-up was three months ago and Dr. Miller treated him at her office. Id. Plaintiff confirmed that he still sees Dr. Sampath Manickam from MCG. Tr. 60-61.
2. VE's Testimony
The VE identified Plaintiff's past work as a truck driver under Dictionary of Occupational Titles ("DOT") number 904.383-010, semiskilled, Specific Vocational Preparation ("SVP") of 4, defined in the DOT as medium, but per the claimant performed as heavy. Tr. 62.
The ALJ asked the VE to assume a younger individual with a high school education and work experience of truck driver as described, limited to the performance of medium work with the following additional restrictions:
The individual can only stand or walk for a total of four hours in an eight hour day. They can only occasionally climb ladders, ropes, scaffolds, ramps or stairs. They can occasionally balance. But they can frequently stoop, kneel, crouch or crawl.Tr. 62. The ALJ asked if such an individual could perform Plaintiff's past work as a truck driver and the VE responded in the negative. Tr. 63. The ALJ asked if the individual could perform other jobs, and after clarifying the stand/walk limitations, the VE stated that the individual would be able to perform other jobs, but the four-hour limitation would reduce him to a sedentary level. Id. The VE identified the following available jobs: order clerk, DOT 209.567-014, sedentary, SVP of 2, unskilled, 255,000 jobs nationally; assembler, DOT 713.687-018, unskilled, SVP of 2, sedentary, 855,000 jobs nationally; and inspector, DOT 669.687-014, sedentary, SVP of 2, unskilled, 472,000 jobs nationally. Id. The ALJ asked if, given the hypothetical, there would be any transferrable work skills from Plaintiff's past work. Id. The VE responded that there would be no transferrable skills. Tr. 64.
In addition, the individual should avoid work at unprotected heights or involving dangerous moving machinery, and they should avoid extensive contact with extreme heat or cold, vibration or noise.
Citing to Exhibit 17F Plaintiff's attorney began by formulating a hypothetical of an individual who could sit, stand, and walk for one hour in an eight-hour workday; and occasionally lift, carry, push and pull one-to-ten pounds with occasional stooping, bending, kneeling and crouching. Tr. 64. The VE affirmed that, given the restrictions on sitting, standing, and walking, work would be precluded because it did not add up to an eight-hour workday. Id. Plaintiff's counsel asked the VE to "assume, though, that the person could sit, stand or walk for a total of eight hours. But that in addition, they would only be able to occasionally handle, finger or feel and would need to shift positions at will, and would need a cane for walking." Tr. 64-65. Counsel asked if that would preclude the cited sedentary jobs, and the VE testified that it would. Tr. 65. Counsel asked if it was a fair statement that "most unskilled sedentary jobs require good regular use of both hands to complete the job." Id. The VE responded that it was a fair statement, as most would require "frequent to constant." Id. Counsel asked, "would a sedentary job generally be able to be performed if someone needed to have their legs elevated at waist level for a significant part of the day?" Id. The VE responded in the negative noting that "employers wouldn't put up with that." Id.
Exhibit 17F is a Physical Capacities Evaluation form completed by Dr. Mary Miller on May 3, 2017. Tr. 635-36.
The ALJ asked the VE if his testimony was consistent with the information in the DOT. Tr. 65. The VE responded that it was "with the exception of the elevated legs" which he stated was based on his "45 years of job placement experience and working with employers." Id.
After the VE was excused from the hearing, the ALJ stated that she was considering propounding some interrogatories to medical experts on the nature of Sjorgren's and sarcoidosis but would provide Plaintiff's counsel with copies of anything she sends. Tr. 66. On June 7, 2017 the ALJ submitted interrogatories to Anne E. Winkler seeking her professional opinion in connection with Plaintiff's claim. Tr. 696-706. Dr. Winkler completed her responses on June 10, 2017. Tr. 686-95. II. Discussion
According to her Curriculum Vitae, Dr. Winkler is a rheumatologist located in Springfield, Missouri and is also employed as a medical expert for the Administrative Law Court. Tr. 709.
A. The ALJ's Findings
In her April 18, 2018 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 December 31, 2020.
2. The claimant has not engaged in substantial gainful activity since December 19, 2013, the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: diabetes mellitus, hypertension, deformity of right shoulder, sarcoidosis, and sarcoid arthropathy (20 CFR 404.1520(c)).Tr. 16-19, 23-24.
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 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that the claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except he can only occasionally reach overhead with his right hand. He can occasionally climb stairs, ramps, ladders, and scaffolds. He can occasionally crawl. He should avoid work at unprotected heights or around moving mechanical parts and extreme cold.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on January 23, 1976 and was 37 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from December 19, 2013, through the date of this decision (20 CFR 404.1520(g)).
B. 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," defined as:
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 12 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 working; (2) whether the claimant 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 the claimant from performing specific jobs that exist in significant numbers in the national economy. See 20 C.F.R. § 404.1520. 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) (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. If the medical evidence shows a claimant meets or equals all criteria of any of the listed impairments for at least one year, he will be found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that his impairments match several specific criteria or be "at least equal in severity and duration to [those] criteria." 20 C.F.R. § 404.1526; 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).
A claimant is not disabled within the meaning of the Act if he 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); Social Security Ruling ("SSR") 82-62 (1982). The claimant bears the burden of establishing his 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 regional 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 he is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen, 482 U.S. at 146, n.5 (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 id., Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls v. Barnhart, 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, 428 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 his conclusion is rational. See Vitek, 428 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).
C. Analysis
Plaintiff argues that (1) the ALJ failed to properly assess medical source opinion evidence, and (2) the ALJ did not explain his findings regarding Plaintiff's residual functional capacity ("RFC") as required by SSR 96-8p. Pl.'s Br. 13, 20; ECF No. 15.
1. Treating Physician Opinion
Plaintiff contends the "ALJ's failure to consider diabetic neuropathy as a severe impairment (or even a non-severe impairment), as well as her failure to consider how the symptoms and treatment of diabetic neuropathy supported Dr. Miller's opinion, requires remand." Pl.'s Br. 17. Plaintiff also argues that the "ALJ's conclusion that the medical records do not support Dr. Miller's opinion is inconsistent with a closer look at Dr. Miller's own treatment notes." Id. at 18. The Commissioner argues the ALJ properly weighed the medical opinion evidence and, "[c]ontrary to Plaintiff's assertion, Dr. Miller's opinions are not supported by the objective medical findings." Def.'s Br. 13, ECF No. 17.
If a treating source's medical opinion is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [a claimant's] case record" it will be given controlling weight. 20 C.F.R. § 404.1527(c)(2) ; Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996) (finding a physician's opinion should be accorded "significantly less weight" if it is not supported by the clinical evidence or if it is inconsistent with other substantial evidence). The Commissioner typically accords greater weight to the opinion of a claimant's treating medical sources because such sources are best able to provide "a detailed, longitudinal picture" of a claimant's alleged disability. See 20 C.F.R. § 404.1527(c)(2). However, "the rule does not require that the testimony be given controlling weight." Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992) (per curiam). Rather, "[c]ourts evaluate and weigh medical opinions 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); 20 C.F.R. § 404.1527(c). The rationale for the general rule affording opinions of treating physicians greater weight is "because the treating physician has necessarily examined the applicant and has a treatment relationship with the applicant." Johnson, 434 F.3d at 654 (quoting Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001)).
For claims filed on or after March 27, 2017, the regulations changed as to how adjudicators would consider and articulate medical opinions. See 20 C.F.R. § 404.1520c. Because Plaintiff's claim was filed prior to March 27, 2017, 20 C.F.R. § 404.1527 is applicable.
However, the ALJ has the discretion to give less weight to the opinion of a treating physician when there is "persuasive contrary evidence." Mastro, 270 F.3d at 176. SSR 96-2p requires that an unfavorable decision contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight. In undertaking review of the ALJ's treatment of a claimant's treating sources, the court focuses its review on whether the ALJ's opinion is supported by substantial evidence.
a. Dr. Miller's May 2017 Opinion
On May 3, 2017 Dr. Miller completed a Physical Capacities Evaluation Form of Plaintiff. Tr. 635-36. She indicated that in an 8-hour workday, Plaintiff could sit, stand, and walk for one hour at a time; occasionally lift/carry or push/pull 1-10 pounds but never anything above that weight; occasionally stoop, kneel, crouch, or climb stairs; and frequently twist. Tr. 635. Dr. Miller indicated that Plaintiff would need a job that permitting shifting positions at will from sitting, standing, or walking. Id. In response to the question asking how often the patient would need to shift positions she noted: "standing - be able to sit every hour; for others - every hour." Id. Dr. Miller indicated Plaintiff could never reach above shoulder level, but that he could occasionally reach at waist level and below waist level; and occasionally handle, finger, and feel. Tr. 636. She indicated that Plaintiff had the capacity to repetitively use both feet and his right hand but could not repetitively use his left hand. Id. She also noted the environmental restriction of "no extreme heat." Id. Dr. Miller noted that Plaintiff's limitations/restrictions began since she began seeing him as a patient in March 2015, and his impairments could be expected to last at least 12 months. Id. Dr. Miller noted that with prolonged sitting Plaintiff's legs should be elevated on a stool or knee high, and in a sedentary job his legs should be elevated 100% of the time in an 8-hour workday. Id. She noted that Plaintiff uses a cane when he has increased swelling or pain in his legs and feet. Id. Dr. Miller noted that the objective evidence supporting her opinion was "tendonitis in left shoulder, diabetic neuropathy, sarcoidosis." Id. She indicated that she did not consider Plaintiff to be employable on a fulltime basis in a competitive work environment that did not accommodate his restrictions. Id.
b. ALJ's Consideration of Dr. Miller's Opinion
The ALJ noted that Dr. Miller was "a treating source" for Plaintiff and gave her opinion "little weight" noting that Dr. Miller "primarily saw the claimant for diabetes mellitus and hypertension (Exhibit 19F) [and] has no physical exam findings and does not treat the claimant for sarcoidosis." Tr. 22. The ALJ also stated the following in support of the weight given to Dr. Miller's opinion:
The physical limits opined by Dr. Miller are not supported anywhere in the medical records. The necessity to shift every hour is not reflected in the medical records. Dr. Miller gave no basis for the inability to use his left hand for repetitive motion and there is no support for this in the medical record. The need to have legs elevated 100% of the time is not reflected in the medical record. The edema that the claimant experienced is noted to have been resolved. The claimant's use of a cane is sporadically noted, but the claimant is also noted in the record to have a normal gait. Dr. Miller signed for a disabled placard noting that the claimant was unable to walk 100 feet and that he needed a cane, but in her treatment notes she states that he is walking two miles per day (Exhibits 10F, 19F).Id. The ALJ determined that based on these inconsistencies, Dr. Miller's opinion was afforded little weight. Id.
c. Discussion
Plaintiff stated that he "first objects to the ALJ's conclusion that Dr. Miller only treated [him] for diabetes and hypertension." Pl.'s Br. 16. Plaintiff contends that "Dr. Miller regularly diagnosed [him] with diabetic neuropathy." Id. The undersigned disagrees with Plaintiff's first objection. The ALJ did not state that Dr. Miller treated Plaintiff only for diabetes and hypertension; the ALJ stated that Dr. Miller primarily saw Plaintiff for diabetes and hypertension. Tr. 22. However, the undersigned agrees with Plaintiff's second contention that the ALJ's failure to consider Plaintiff's neuropathy as an impairment, "as well as her failure to consider how the symptoms and treatment of diabetic neuropathy supported Dr. Miller's opinion, requires remand." Pl.'s Br. 17.
Dr. Miller offers the only medical opinion regarding Plaintiff's physical condition from a treating or examining physician. In her May 2017 opinion Dr. Miller cites "Diabetic Neuropathy" as objective evidence to support her opinion. Tr. 636. At various times throughout her treatment of Plaintiff, Dr. Miller cites to his neuropathy or foot pain in her treatment notes. See 03/12/15 record, Tr. 464; 04/05/17 record, Tr. 664; 02/22/17 record, Tr. 666; 11/02/16 record, Tr. 669; 10/04/16 record, Tr. 670; 09/07/16 record, Tr. 671. However, in her discussion of listing-level impairments, the ALJ states that "the record does not establish neuropathy due to diabetes." Tr. 19. The ALJ also gave significant weight to the opinion of a non-examining medical consultant stating: "Dr. Winkler noted that neuropathy cannot be established by exams and that the paresthesias that the claimant experienced was due to hypercalcemia during hospitalization in 2016, which was resolved." Tr. 22. The ALJ does not explain how Dr. Winkler's opinion conflicts with Dr. Miller's opinion and treatment notes—particularly those that note neuropathy or paresthesia long after Plaintiff's June 2016 hospitalization.
The ALJ cites to other inconsistencies in Dr. Miller's opinion regarding Plaintiff's need to shift positions, inability to use his left hand for repetitive motion, the need to elevate his legs, and ability to ambulate. Tr. 22. However, the ALJ does not acknowledge Dr. Miller's cited objective evidence of tendonitis in left shoulder, Tr. 636, or her treatment note that Plaintiff was given an injection in his left shoulder on May 3, 2017, Tr. 663. In her discussion of Dr. Miller's opinion, the ALJ notes that "Dr. Miller has no physical exam findings and does not treat the claimant for sarcoidosis." Tr. 22. However, the ALJ found that Plaintiff had the severe impairments of sarcoidosis and sarcoid arthropathy, Tr. 17, which Dr. Miller noted in her treatment records multiple times as part of Plaintiff's medical history and as objective evidence to support her opinion, Tr. 636. As to the disabled placard versus the treatment note—Dr. Miller signed for the disabled placard on July 6, 2017, Tr. 481, and the treatment note that indicates walking two miles was a year earlier on August 24, 2016, Tr. 672.
The opinion of a treating physician must be weighed against the record as a whole when determining eligibility for benefits. 20 C.F.R. § 404.1527(c)(4). Ultimately, it is the responsibility of the Commissioner, not a reviewing court, to review the case, make findings of fact, and resolve conflicts of evidence. Hays v. Sullivan, 907 F.2d at 1456. A court must not, however, abdicate its duty to scrutinize the record as a whole to determine whether the Commissioner's conclusions are rational. Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974). In reviewing the ALJ's treatment of a claimant's treating sources, the court focuses its review on whether the ALJ's opinion is supported by substantial evidence, because the court's role is not to "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Craig, 76 F.3d at 589. Based on the above discussion the undersigned recommends finding that the ALJ's treatment of the medical opinion of Plaintiff's treating physician, Dr. Miller, is not supported by substantial evidence. The undersigned recommends remand.
2. The ALJ's RFC Assessment
Plaintiff argues the ALJ failed to properly consider Plaintiff's diabetic neuropathy and diverticulitis in formulating her RFC assessment. Pl.'s Br. 22. Because the undersigned recommends remand so that the ALJ may re-evaluate Dr. Miller's opinion, the undersigned declines to address this argument. On remand, however, the Commissioner should consider Plaintiff's remaining allegations of error. III. Conclusion and Recommendation
The court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported by substantial evidence. Based on the foregoing, the undersigned cannot determine that the Commissioner's finding is supported by substantial evidence or without legal error.
Accordingly, pursuant to the power of the court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in Social Security actions, it is recommended that the Commissioner's decision be reversed and remanded for further administrative action as detailed within.
IT IS SO RECOMMENDED. June 19, 2020
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge