Opinion
Civil Action 6:23-cv-3601-JD-KFM
06-21-2024
Kaycie M.,[1] Plaintiff, v. Martin J. O'Malley,[2] Commissioner of Social Security, Defendant.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
This case is before the court for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.), concerning the disposition of Social Security cases in this District, and 28 U.S.C. § 636(b)(1)(B). The plaintiff brought this action pursuant to Sections 205(g) and 1631(c)(3) of the Social Security Act, as amended (42 U.S.C. §§ 405(g), 1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security finding that the plaintiff's disability under Titles II and XVI of the Social Security Act ended on October 16, 2020.
A report and recommendation is being filed in this case, in which one or both parties declined to consent to disposition by the magistrate judge.
ADMINISTRATIVE PROCEEDINGS
In a decision dated March 8, 2005, the plaintiff was found disabled beginning on August 15, 2000 (Tr. 75-78). The plaintiff's disability was subsequently determined to have continued in a determination dated March 12, 2013 (Tr. 80-83). On October 16, 2020, the Social Security Administration determined that the plaintiff was no longer disabled as of October 16, 2020, because her health had improved and she was able to work (Tr. 84-107). On October 26, 2021, this determination was upheld on reconsideration after a disability hearing by a state agency disability hearing officer (Tr. 114-125). On November 17, 2021, the plaintiff requested a hearing (Tr. 177). On May 26, 2022, an administrative hearing was held at which the plaintiff, who was unrepresented, and Sharon Moncus, an impartial vocational expert, appeared and testified by telephone before administrative law judge (“ALJ”) James Cumbie (Tr. 50-74). On September 27, 2022, ALJ Cumbie considered the case de novo and found that the plaintiff's disability ended on October 16, 2020, and she had not become disabled again since that date (T r. 28-49). The ALJ's finding became the final decision of the Commissioner of Social Security when the Appeals Council denied the plaintiff's request for review on May 26, 2023 (Tr. 1-4). The plaintiff then filed this action for judicial review.
In making the determination that the plaintiff is no longer entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The most recent favorable medical decision finding that the claimant continued to be disabled is the determination dated March 12, 2013. This is known as the “comparison point decision” or CPD.
(2) At the time of the CPD, the claimant had the following medically determinable impairments: headaches, fainting spells, and anxiety. These impairments were found to result in the residual functional capacity with no exertional limitations but would miss 3 to 4 days per month (Exhibit 1A/3).
(3) Through the date of this decision, the claimant has not engaged in substantial gainful activity (20 C.F.R. § 404.1594(f)(1)).
(4) The medical evidence establishes that, since October 16, 2020, the claimant has had the following medically determinable impairments: obesity, neuropathy, and Charcot-Marie-Tooth disease. These are the claimant's current impairments.
(5) Since October 16, 2020, the claimant has not had an impairment or combination of impairments which meets or medically equals the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1525, 404.1526, 416.925, and 416.926).
(6) Medical improvement occurred on October 16, 2020 (20 C.F.R. §§ 404.1594(b)(1) and 416.994(b)(1)(i)).
(7) Since October 16, 2020, the impairments present at the time of the CPD decreased in medical severity to the point where the claimant has had the residual functional capacity to perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a) except the claimant can occasionally balance, stoop, kneel, crouch, and crawl. The claimant can frequently reach, handle, finger, and feel. The claimant can never climb ladders and scaffolds. The claimant should avoid exposure to extreme heat and cold, vibration, and hazards. The claimant can occasionally operate foot controls bilaterally.
(8) The claimant's medical improvement is related to the ability to work because it has resulted in an increase in the claimant's residual functional capacity (20 C.F.R. §§ 404.1594(c)(3)(ii) and 416.994(b)(2)(iv)(B)).
(9) Since October 16, 2020, the claimant has continued to have a severe impairment or combination of impairments (20 C.F.R. §§ 404.1594(f)(6) and 416.994(b)(5)(v)).
(10) Since October 16, 2020, based on the current impairments, the claimant has had the residual functional capacity to perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a) except the claimant can occasionally balance, stoop, kneel, crouch, and crawl. The claimant can frequently reach, handle, finger, and feel. The claimant can never climb ladders and scaffolds. The claimant should avoid exposure to extreme heat and cold, vibration, and hazards. The claimant can occasionally operate foot controls bilaterally.
(11) The claimant has no past relevant work (20 C.F.R. §§ 404.1565 and 416.965).
(12) On October 16, 2020, the claimant was a younger individual age 18-44 (20 C.F.R. §§ 404.1563 and 416.963).
(13) The claimant has at least a high school education (20 C.F.R. §§ 404.1564 and 416.964).
(14) Transferability of job skills is not an issue because the claimant does not have past relevant work (20 C.F.R. §§ 404.1568 and 416.968).
(15) Since October 16, 2020, considering the claimant's age, education, work experience, and residual functional capacity
based on the current impairments, the claimant has been able to perform a significant number of jobs in the national economy (20 C.F.R. §§ 404.1560(c), 404.1566, 416.960(c), and 416.966).
(16) The claimant's disability ended on October 16, 2020, and the claimant has not become disabled again since that date (20 C.F.R. §§ 404.1594(f)(8) and 416.994(b)(5)(vii)).
The only issues before the court are whether proper legal standards were applied and whether the final decision of the Commissioner is supported by substantial evidence.
APPLICABLE LAW
When determining whether an individual who has previously been found to be disabled continues to be disabled, an ALJ is to use an eight-step evaluation process. See 20 C.F.R. §§ 404.1594(f), 416.994(b). The ALJ is to consider 1) whether the claimant is currently engaging in substantial gainful activity; 2) whether the claimant has an impairment or combination of impairments that meets or medically equals a listing; 3) whether the claimant has experienced “medical improvement,” and, if so; 4) whether the medical improvement is related to the claimant's ability to work. If there is no medical improvement, or if the medical improvement is found to be unrelated to the claimant's ability to work (and if no statutory exceptions apply); then 5) the claimant's disability generally continues. However, if there has been medical improvement related to the claimant's ability to work, the ALJ must then determine; 6) whether all of the claimant's current impairments, in combination, are “severe”; 7) if the claimant is able to perform past relevant work; and, if not; 8) whether he or she can perform other work that exists in the national economy. Id. §§ 404.1594(f)(1)-(8), 419.994(b)(5)(i)-(viii).
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's findings. However, this review is limited to considering whether the Commissioner's findings “are supported by substantial evidence and were reached through application of the correct legal standard.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). “Substantial 4 evidence” means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Id. In reviewing the evidence, the court may not “undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Id. Consequently, even if the court disagrees with the Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
ANALYSIS
The plaintiff, who was 42 years old when the Social Security Administration found that she was no longer disabled, seeks to have her disability reinstated based upon physical and mental impairments that limit her ability to work. The plaintiff has no past relevant work (Tr. 40). The plaintiff argues that the ALJ erred in finding medical improvement by (1) improperly finding the plaintiff's mental impairments non-severe (doc. 21 at 24-26); (2) failing to explain how the residual functional capacity (“RFC”) assessment accounted for neuropathic pain caused by Charcot-Marie-Tooth disease as well as pain in the plaintiff's hip and back (id. at 16-23); (3) failing to properly assess opinion evidence from consultative examiner James Shuman, M.D. (id. at 27-31); and (4) failing to properly examine the plaintiff's subjective complaints based upon Social Security Ruling (“SSR”) 163p (id. at 31-34). The Commissioner, on the other hand, asserts that the ALJ's decision of medical improvement is supported by substantial evidence and should be affirmed (doc. 24 at 11-20).
Step Two
The plaintiff asserts that the ALJ erred in finding the plaintiff's mental impairments to be non-severe impairments (doc. 21 at 24-26). A severe impairment is one that “significantly limits [a claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. §§ 404.1520(c), 416.920(c). “Basic work activities” are “the abilities and aptitudes necessary to do most jobs,” examples of which include “physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling.” Id. §§ 404.1522, 416.922. In short, the “inquiry is a de minimis screening device to dispose of groundless claims.” McCrea v. Comm'rof Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004). An ALJ must consider all of a claimant's medically determinable impairments, even those that are not severe, in the RFC assessment. 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2). If an ALJ commits error at step two, it can be rendered harmless if “the ALJ considers all impairments, whether severe or not, at later steps.” Robinson v. Colvin, C/A No. 4:13-cv-823-DCN, 2014 WL 4954709, at *14 (D.S.C. Sept. 29, 2014) (citing Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008)); see also Washington v. Astrue, 698 F.Supp.2d 562, 580 (D.S.C. 2010) (holding that there is “no reversible error where the ALJ does not find an impairment severe at step two provided that he or she considers that impairment in subsequent steps”). For the reasons that follow, the undersigned finds that substantial evidence supports the ALJ's determination that the plaintiff's mental impairments were non-severe impairments.
In evaluating whether the plaintiff's mental impairments were severe, the ALJ examined the four areas of mental functioning, finding that the plaintiff had no limitations in understanding, remembering, or applying information; no limitations in interacting with others; no limitations in concentrating, persisting, or maintaining pace; and no limitations in adapting or managing herself (Tr. 31). The ALJ concluded that the plaintiff's mental impairments were non-severe because they did not cause more than a “mild” limitation in any of the four functional areas (Tr. 31-33). Despite the foregoing, the plaintiff argues that the ALJ was required to find these impairments severe because the plaintiff took medication for anxiety and depression, and based on a Medical Statement of Ability to Do Work-Related Activities (Mental) completed by Brittany Bailey, N.P. (doc. 21 at 24-26). The undersigned finds the plaintiff's arguments unavailing.
As an initial matter, the plaintiff offers no reference to precedential case law requiring that impairments be found severe if an individual takes medication for the condition. Indeed, the regulations are clear that severe impairments are those that significantly limit a plaintiff's ability to engage in work activities, not those for which an individual takes medication. See 20 C.F.R. §§ 404.1520(c), 416.920(c). As such, the analysis is not whether a plaintiff takes medications for an impairment; the correct analysis - as engaged in by the ALJ in his decision - is whether the impairment affects an individual's ability to engage in work activities. Here, the ALJ analyzed the plaintiff's treatment records (including those cited by the plaintiff) and found that the mental impairments did not cause more than mild limitations in any of the functional areas (Tr. 31-33).
In support of her argument, the plaintiff references treatment records from Ms. Bailey as well as four treatment records with other providers, but she but does not argue what limitations were supported by these records (which would then in turn require a finding that her mental impairments were severe). For example, as noted by the plaintiff, Eric Nelson, M.D., noted on June 17, 2019, that the plaintiff had a history of anxiety, but examination findings during that visit indicated that the plaintiff was alert and fully oriented (Tr. 440). Similarly, although the plaintiff is correct that Kathleen Bowling, MP-C, noted diagnoses of anxiety and depression on a medical source statement for the plaintiff, she also indicated that the plaintiff had normal examination findings and a good ability to complete tasks of activities of daily living (“ADLs”); relate to others; complete simple, routine tasks; and complete complex tasks (Tr. 466). Consultative examiner, Dr. Shuman, noted mixed anxiety and depression but indicated that the conditions were stable, and the plaintiff was noted as alert and fully oriented (Tr. 471-73). As recognized by the ALJ, these treatment records, noting stable mental impairments, did not support a finding that the plaintiff's mental impairments significantly limited her ability to do basic work activities as required for severe impairments.
The only other records relied on by the plaintiff in support of her argument are treatment notes and a medical source statement completed by Ms. Bailey. On April 6, 2022, Ms. Bailey completed an opinion form regarding the plaintiff's mental functioning. Ms. Bailey noted that the plaintiff's ability to understand, remember, and carry out instructions was not affected by her impairments. The plaintiff had no limitations in her ability to understand and remember simple instructions; carry out simple instructions; and make judgments on simple work-related decisions. The plaintiff had mild limitations in her ability to carry out complex instructions and moderate limitations in her ability to carry out complex instructions and make judgments on complex work-related decisions. The plaintiff had marked limitations in her ability to interact appropriately with the public. The plaintiff had moderate limitations in her ability to interact appropriately with supervisors and co-workers and to respond to usual work situations or routine changes. The plaintiff's social interaction limitations were based on the plaintiff's trouble with social anxiety in large crowds. Ms. Bailey noted that the plaintiff “would likely tolerate [a] desk job [with] small employee team to reduce social anxiety.” The plaintiff had no limitations in her ability to concentrate, persist, maintain pace, or adapt or manage herself. The limitations began in April 2019, and the plaintiff could manage her own funds (Tr. 739-41).
The ALJ evaluated this opinion evidence from Ms. Bailey by comparing it to her treatment records and found that they were not supportive of the opined limitations (T r. 32-33). For example, the plaintiff's only appointment with Ms. Bailey in 2019 was April 29, 2019, and during that visit, the plaintiff complained of a urinary tract infection (“UTI”) and was prescribed antibiotics (Tr. 426-27). The plaintiff returned to Ms. Bailey more than a year later complaining of another UTI as well as worsening anxiety, but the anxiety was secondary to her mother's health failing, and the plaintiff had normal mood, affect, and behavior (Tr. 507-09). In July 2020, the plaintiff reported good relief of her anxiety and depression symptoms despite increased situational stressors of her mother being diagnosed with breast cancer (Tr. 505-07). Nine months later, in February 2021, the plaintiff complained of a recurrent UTI, but made no complaints regarding depression or anxiety (Tr. 496-99). When the plaintiff returned to Ms. Bailey in July 2021, she reported using Celexa as needed after her mother's passing, but she had no complaints regarding anxiety/depression (Tr. 679-81). The plaintiff's visit on August 17, 2021, likewise included no complaints regarding anxiety or depression, as the plaintiff reported hip pain for one week (Tr. 676-78). On October 20, 2021, the plaintiff reported situational stressors causing dizziness (including her mother passing, sister being in the hospital, and her father needing help at home), but she did not complain of anxiety or depression (Tr. 775-78). Although the plaintiff complained of increased depression and anxiety in January 2022, it was secondary to her mom passing away, and the plaintiff reported doing better by February after her medications were adjusted (Tr. 765-67, 773-75). The plaintiff's next visit was to have the medical source statement completed (Tr. 758-60). The plaintiff returned one month later and noted that her anxiety was better (Tr. 755-58). As noted by the ALJ, these treatment notes by Ms. Bailey were at complete odds with the limitations opined in the medical source statement, and the records did not support a finding that the plaintiff's anxiety or depression significantly affected her ability to do basic work activities (Tr. 31-33).
As the plaintiff has failed to assert error with respect to the ALJ's evaluation of opinion evidence from Ms. Bailey, it is waived. Shinaberry v. Saul, 952 F.3d 113, 124 n.5 (4th Cir. 2020) (noting that a plaintiff waived review of a claim by failing to raise it in her initial brief).
Similarly, as noted by the ALJ, other record evidence (not addressed by the plaintiff) was also inconsistent with Ms. Bailey's opined limitations and the plaintiff's allegations that her mental impairments were severe. For example, in a function report completed on January 17, 2020, the plaintiff did not identify any mental impairments as limiting her ability to work, and on the section asking what difficulties were caused by her impairments, she only checked those involving physical limitations (squatting, standing, walking, kneeling, stair climbing, using hands) (Tr. 256, 261). The plaintiff also reported that when her feet were not hurting, she loved to go to the mall (Tr. 260), which is in direct conflict with notations by Ms. Bailey that the plaintiff could not be around groups of people. In light of the foregoing, the undersigned finds that the ALJ's determination that the plaintiff's mental impairments were non-severe is supported by substantial evidence and should be affirmed.
In addition to the foregoing, there is “no reversible error where the ALJ does not find an impairment severe at step two provided that he or she considers that impairment in subsequent steps.” Washington, 698 F.Supp.2d at 580. Here, the ALJ specifically indicated that all of the plaintiff's medically determinable impairments - whether severe or non-severe - were considered in crafting the plaintiff's RFC assessment (Tr. 33, 35). The ALJ's decision reflects consideration of the entirety of the record evidence in the RFC assessment; thus, even if the ALJ erred in finding the mental impairments non-severe, the error would be harmless.
Residual Functional Capacity
The regulations provide that a claimant's RFC is the most that she can still do despite her limitations. 20 C.F.R. §§ 404.1545(a), 416.945(a). It is the ALJ's responsibility to make the RFC assessment, id. §§ 404.1546(c), 416.946(c), and the ALJ does so by considering all of the relevant medical and other evidence in the record, id. §§ 404.1545(a)(3), 416.945(a)(3).
Social Security Ruling 96-8p provides in pertinent part:
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, including
the functions in paragraph (b), (c), and (d) of 20 C.F.R. §§ 404.1545 and 416.945. Only after that may [the] RFC be expressed in terms of the exertional levels of work, sedentary, light, medium, heavy, and very heavy.SSR 96-8p, 1996 WL 374184, at *1. The ruling further provides:
The RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations). In assessing RFC, the adjudicator must discuss the individual's ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and describe the maximum amount of each work-related activity the individual can perform based on the evidence available in the case record. The adjudicator must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved.Id. at *7 (footnote omitted). Further, “[t]he RFC assessment must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence.” Id. Moreover, “[t]he RFC assessment must always consider and address medical source opinions. If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted.” Id.
In evaluating the plaintiff's case, the ALJ set forth the following RFC assessment with respect to the period in question, since medical improvement occurred on October 16, 2020, both based on the plaintiff's impairments present at the time of the CPD and her “current” impairments:
[T]he claimant has had the residual functional capacity to perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a) except the claimant can occasionally balance, stoop, kneel, crouch, and crawl. The claimant can frequently reach, handle, finger, and feel. The claimant can never climb ladders and scaffolds. The claimant should avoid exposure to extreme heat and cold, vibration, and hazards. The claimant can occasionally operate foot controls bilaterally.(Tr. 34, 35). As noted above, the plaintiff alleges that the ALJ failed to account for the plaintiff's back, hip, and neuropathic pain in the RFC assessment (doc. 21 at 16-23). Specifically, the plaintiff argues that the ALJ failed to explain how the RFC assessment accounted for the plaintiff's need to shift positions at will and difficulty using her right upper extremity (id.). The undersigned disagrees.
As an initial matter, as conceded by the plaintiff, the majority of the record evidence that she relies on in support of this argument dates back several years before the applicable period (doc. 21 at 18-19). The plaintiff also only references three total treatment records where she complained of low back pain or hip pain - although she references a multitude of records noting these diagnoses (but not subjective complaints or examination findings regarding these diagnoses) (see id.). Moreover, the ALJ's decision reflects consideration of the records cited by the plaintiff meaning that - in essence - the plaintiff requests that this court reweigh the evidence considered by the ALJ and come to a different conclusion, which is beyond the purview of substantial evidence review.
Additionally, as explained by the ALJ, the less than sedentary RFC assessment accommodated for the plaintiff's back, hip, and neuropathic pain (Tr. 35-39). For example, the ALJ explained that he examined the plaintiff's treatment records during the relevant period and limited the plaintiff to a range of sedentary work with standing/walking limitations, postural limitations, and limitations in the use of bilateral foot controls. As recognized by the ALJ, although 2021 x-rays of the plaintiff's right hip and knee were normal, the plaintiff had some slight muscle atrophy upon examination by Dr. Shuman in 2020, and x-rays of her right foot on September 29, 2020, noted severe chronic arthropathic changes of the tarsometatarsal joints and the mid foot. Nevertheless, the plaintiff argues that the ALJ should have added a limitation to address the plaintiff's need to shift positions at will and her difficulties with her upper extremities; however, the plaintiff has not identified relevant record evidence in support of that argument. For example, although the plaintiff references a 2019 emergency room visit where she complained of tailbone pain and right upper leg pain (Tr. 527-30), when the plaintiff reported to Ms. Bailey
a week later, she had normal examination findings, and her only complaints were regarding a recurrent UTI (see Tr. 426-27). Similarly, although the plaintiff presented to Dr. Shuman in August 2020 with a limping gait favoring the right side, by her next visit two weeks later (to complete additional testing), Dr. Shuman noted that the plaintiff had a normal gait with no use of an assistive device (although she had poor balance and muscle fatigue after standing for seven minutes) (Tr. 471-73, 475-76). Further, although Dr. Shuman opined that the plaintiff would have difficulty with prolonged standing or prolonged walking, he did not indicate that the plaintiff would need to shift positions at will (Tr. 471-73, 475-76). The next treatment note referenced by the plaintiff is a treatment visit with Ms. Bailey in February 2021, where the plaintiff complained of low back pain as well as a UTI, but had normal examination findings (Tr. 496-99). During that same time, however, the plaintiff also complained of knee pain secondary to a fall while on vacation in Orlando (Tr. 492-96). Similarly, although the plaintiff reported hip pain in August 2021 to Ms. Bailey, she had no inability to bear weight, no loss of motion, no loss of sensation, no muscle weakness, no numbness, and no tingling (Tr. 676-77). By October 2021, the plaintiff reported reducing her Flexeril use, although she had situational stressors (mother passing away, sister in the hospital, father needing help at home) causing increased dizziness (Tr. 775-78). These treatment records, as noted by the ALJ, did not support additional RFC limitations than provided.
Indeed, although the plaintiff testified that she had difficulty with balance and with her legs (Tr. 60, 64), she also testified that she was usually able to drive, she sat daily to watch televison most of the day, and she was able to make simple meals (Tr. 60, 61). Similarly, although the plaintiff indicated on her function report that she had trouble walking and standing, she also indicated that she was able to take care of her personal care routine, she was able to fix meals, did some of the household chores (sat to wash dishes and washed the laundry), was able to shop in stores once a month for a few hours, and loved going to the mall when her feet were not hurting (Tr. 256-63). As recognized by the ALJ, these treatment records did not support additional limitations (including a sit/stand option) than those provided for in the less than sedentary RFC assessment.
As noted, the plaintiff also argues that the ALJ failed to explain how the less than sedentary RFC accommodated decreased sensation in the plaintiff's right upper extremity (doc. 21 at 21-22). However, the plaintiff solely relies on a consultative examination by Dr. Shuman noting diminished sensation in the plaintiff's right upper extremity in arguing that she required additional limitations (id. (citing Tr. 475-76)). Although the plaintiff is correct that Dr. Shuman noted decreased sensation in the plaintiff's right upper extremity and that the plaintiff had trouble twisting a cap off of a water bottle, he also noted that the plaintiff had 5/5 grip strength, could button buttons, could pick up a coin, and had normal fine and gross manipulation (Tr. 472, 475-76). Further, although Ms. Buryk opined that the plaintiff would be limited in her ability to use her upper extremities, as recognized by the ALJ in affording portions of Ms. Buryk's opinion limited weight because it was unsupported by her examination findings, Ms. Buryk also noted that the plaintiff could sort, handle, or use paper files; care for her own personal hygiene; could prepare a simple meal; and was able to feed herself (Tr. 37, 744, 747). Additionally, as noted by the ALJ, the plaintiff's ADLs were inconsistent with additional RFC limitations because, although the plaintiff testified that she had neuropathy in her hands and arms, she was able to fix simple meals and the neuropathy only “sometimes” affected her ability to drive (Tr. 60, 61). The plaintiff's function report noted that she made the bed daily, could take care of her personal care routine, enjoyed reading, was able to wash dishes (while sitting down), took care of the laundry, and shopped in stores for groceries (Tr. 257-60, 296). As recognized by the ALJ, this record evidence was inconsistent with the plaintiff's allegations of disabling neuropathic pain in her upper extremities and was accounted for in the RFC assessment by limiting the plaintiff to a range of sedentary work, including limitations in her ability to reach, handle, finger, and feel (Tr. 36-37, 39).
The Court of Appeals for the Fourth Circuit has held that while an RFC assessment must include a narrative describing how the evidence supports the ALJ's conclusions, there is no particular format or language that must be utilized, so long as the decision permits meaningful judicial review. See Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016). Here, the ALJ's decision, with its detailed discussion of the record evidence and the resultant RFC limitations, permits such review. As such, the undersigned finds that the ALJ's RFC assessment is supported by substantial evidence, free of legal error, and should be affirmed.
Medical Source Statements
The plaintiff also argues that the ALJ failed to appropriately evaluate opinion evidence from consultative examiner Dr. Shuman (doc. 21 at 29-31). As a threshold matter, the undersigned finds that it is necessary to address the applicable regulations for consideration of opinion evidence in the instant matter. For applications filed on or after March 27, 2017, a new regulatory framework for considering and articulating the value of medical opinions has been established. See 20 C.F.R. §§ 404.1520c, 416.920c; see also 82 Fed.Reg. 5844-01, 2017 WL 168819 (revisions to medical evidence rules dated Jan. 18, 2017, and effective Mar. 27, 2017). Here, the plaintiff's original applications were filed before March 27, 2017; however, pursuant to HALLEX I-5-3-30, if there has been a finding made that an individual's disability ceased and the request for review of the determination cessation was on or after March 27, 2017, the prior rules are applied if the prior rules were used when finding medical cessation, and the current rules are applied if the current rules were used when finding medical cessation. HALLEX I-5-3-30, Revisions to Rules Regarding the Evaluation of Medical Evidence, https://www.ssa.gov/ OPHome/hallex/I-05/I-5-3-30.html (last visited June 21, 2024). The “date of the initial request for review of the disability cessation determination” is considered the filing date for a new period of disability. Id.; see SSR 13-3p, Appeal of an Initial Medical Disability Cessation Determination or Decision, 2013 WL 785484, at *4 (Feb. 21,2013) (“[ALJs] use the date of the initial request for review of the disability cessation determination as the filing date for a new period of disability.”). Here, as noted, the plaintiff's original applications and CPD all occurred prior to March 27, 2017; however, the cessation determination occurred after March 27, 2017, and it is unclear which regulations were applied during the initial cessation determination (Tr. 75-78, 84-107). Due to this uncertainty, it appears that the ALJ applied both the old and current regulations in evaluating opinion evidence, by addressing both the “weight” and the “persuasiveness” of opinion evidence (see. Tr. 35, 37-39). Neither the plaintiff nor the Commissioner argues that the ALJ applied the wrong standard in evaluating opinion evidence (see docs. 21; 24). Shinaberry, 952 F.3d at 124 n.5 (noting that a plaintiff waived review of a claim by failing to raise it in her initial brief). Thus, the undersigned will address the opinion evidence based on both the old and current regulations.
For applications filed prior to March 27, 2017, the regulations require that all medical opinions in a case be considered. 20 C.F.R. §§ 404.1527(b), 416.927(b). The regulations further direct ALJs to accord controlling weight to a treating physician's opinion that is well-supported by medically-acceptable clinical and laboratory diagnostic techniques and that is not inconsistent with the other substantial evidence of record. Id. §§ 404.1527(c)(2), 416.927(c)(2). If a treating physician's opinion is not given controlling weight, the ALJ must proceed to weigh the treating physician's opinion, along with all the other medical opinions of record, based upon the following non-exclusive list of factors: (1) the examining relationship; (2) the length of the treatment relationship and the frequency of the examinations; (3) the nature and extent of the treatment relationship; (4) the evidence with which the physician supports his opinion; (5) the consistency of the opinion; and (6) whether the physician is a specialist in the area in which he is rendering an opinion. Id. §§ 404.1527(c)(1)-(5), 416.927(c)(1)-(5); see also Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005). However, “[w]hile 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 v. Comm'r of Soc. Sec. Admin., 986 F.3d 377, 385 (4th Cir. 2021) (emphasis in original).
For applications filed on or after March 27, 2017, a new regulatory framework for considering and articulating the value of medical opinions has been established. See 20 C.F.R. §§ 404.1520c, 416.920c; see also 82 Fed.Reg. 5844-01, 2017 WL 168819 (revisions to medical evidence rules dated Jan. 18, 2017, and effective for claims filed after Mar. 27, 2017). As part of the new regulatory framework, the definition of medical opinions has been updated. See 20 C.F.R. §§ 404.1513(a)(2), 416.913(a)(2). Most notably, the new regulations no longer require that special significance be given to opinions by a claimant's treating physician. See id. §§ 404.1527, 416.927 (noting that the treating physician rule only applies to claims filed before March 27, 2017). Indeed, the ALJ is not required to defer to or give any specific weight to medical opinions. Id. at §§ 404.1520c(a), 416.920c(a). Instead, the ALJ should consider and articulate in the decision how persuasive each medical opinion is based upon the factors of: (1) supportability; (2) consistency; (3) relationship with the claimant; (4) specialization; and (5) other factors that tend to support or contradict a medical opinion. Id. §§ 404.1520c(b), (c), 416.920c(b), (c). Supportability and consistency are the most important of the factors for consideration, and the ALJ is required to explain how he considered the supportability and consistency factors in evaluating opinion evidence. Id. §§ 404.1520c(a), (b)(2), 416.920c(a), (b)(2). An ALJ may, but is not required to, explain how the remaining factors were considered. Id. §§ 404.1520c(b)(2), 416.920c(b)(2). In evaluating the supportability of an opinion, “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) . . . the more persuasive the medical opinions . . . will be.” Id. §§ 404.1520c(c)(1), 416.920c(c)(1). In evaluating the consistency of an opinion, “[t]he more consistent a medical opinion(s) . . . is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) . . . will be.” Id. §§ 404.1520c(c)(2), 416.920c(c)(2).
Here, the opinion at issue is one from consultative examiner Dr. Shuman. In 2020, Dr. Shuman completed two consultative examinations of the plaintiff, with one on August 29, 2020, and the other on September 12, 2020. During the examination on August 29, 2020, the plaintiff reported that she could dress and feed herself, but could only stand for five minutes if she had her shoes on. The plaintiff had no difficulty lifting, cooking, cleaning, or shopping, but holding objects for a long period of time or prolonged activity caused pain in her feet. The plaintiff reported needing to rest in bed for most of the day if she did a full grocery trip. Examination findings noted that the plaintiff was comfortable, well-developed, well-nourished, but slightly limped into the room favoring her right side. The plaintiff's speech and hearing were normal, and she had full range of motion in her spine and extremities. The plaintiff had 5/5 muscle strength in all of her extremities and 5/5 grip strength bilaterally. The plaintiff's gait was noted as slightly limping, favoring the right side with poor balance, which prevented the plaintiff from walking on her heels, toes, heeltoe walking, or squatting. The plaintiff was alert and fully oriented with no focal deficits in the upper extremities, but she had 1 + sensation in her lower extremities (especially the right lower extremity). Dr. Shuman opined that the plaintiff would have frequent limitations with prolonged standing, prolonged walking, bending, and lifting/carrying objects. The plaintiff would also have frequent limitations with exposure to cold weather, and he opined that she should avoid climbing any kinds of heights secondary to significantly poor balance. Dr. Shuman opined that the plaintiff “should continue to receive disability as she has since 2004” (Tr. 472-73).
When the plaintiff presented for “a more detailed neuro examination” on September 12, 2020, with Dr. Shuman, she was alert and fully oriented and had poor balance heel-toe walking, but had a normal gait and did not use an assistive device. The plaintiff had no abnormalities on speech intelligibility and ability to follow instructions and could communicate her history clearly and accurately. The plaintiff had 0+ sensation to touch and vibration in the bilateral lower extremities from the knee down and 0 sensation from the right hand to the right elbow. The extremities otherwise had 2+ sensation. Finger-to-nose and heel-shin testing were normal. Tandem gait testing revealed poor balance. Rapid alternating movements were uncoordinated and revealed poor coordination. The plaintiff had no gait ataxia, but had poor balance with heel-toe, heel, and toe walking. The plaintiff had no reflexes present in her extremities, but had 4/5 muscle strength in all extremities secondary to “some slight atrophy” in all of her muscles. The plaintiff's bilateral lower extremity muscles showed fatigue after the plaintiff stood for seven minutes. The plaintiff had normal fine and gross manipulation. The plaintiff had trouble twisting a cap off of a bottle of water, but could button buttons and pick up a coin. The plaintiff's mental status exam was 30/30, and she had no abnormalities in orientation, memory, insight, or understanding. The plaintiff had cooperative and pleasant mood and behavior. Dr. Shuman noted that limitations had been previously reviewed, but opined that the plaintiff would have frequent limitations with prolonged standing, prolonged walking, bending, lifting, pushing, pulling, and climbing secondary to muscle weakness in all extremities as well as the decreased sensation and poor balance. Dr. Shuman noted “no inconsistencies” on his examination (Tr. 475-76).
The ALJ considered the opinion from Dr. Shuman and noted that he afforded it partial weight and found it partially persuasive “to the extent of the sedentary RFC consistent with the longitudinal chart and the [plaintiff's] admitted [ADLs] as it is generally consistent with the signs and findings from this examination and the other treating neurological examination findings (Exhibit 26F/6)” (Tr. 37; see also Tr. 35 (providing the same weight/persuasiveness to Dr. Shuman's opinion in comparison to impairments present at the time of the CPD)).
Here, the plaintiff argues that the ALJ erred in providing the opinion with partial weight and finding it partially persuasive because the ALJ did not address Dr. Shuman's notation that the plaintiff should continue to receive disability benefits, and because portions of Dr. Shuman's opinion undermine the ALJ's RFC assessment (doc. 21 at 29-31). As an initial matter, to the extent the plaintiff conflates her opinion analysis argument with arguments regarding the RFC assessment, as outlined supra, the ALJ's RFC assessment is supported by substantial evidence and should be affirmed. See supra pp. 10-15.
With respect to the ALJ's consideration of opinion evidence from Dr. Shuman, as noted above, the plaintiff has not argued that the ALJ erred in considering Dr. Shuman's opinion under both the old and current rules for opinion evaluation (see doc. 21). Even if the plaintiff were to argue that the ALJ erred in analyzing the opinion under both the old and current regulations, any error would be harmless because the ALJ's finding that Dr. Shuman's opined limitations were only partially persuasive and only entitled to partial weight is supported by substantial evidence and should be affirmed.
Here, because Dr. Shuman was not a treating physician, there are few differences between the old and current regulations for evaluating opinion evidence -especially since the ALJ recognized that Dr. Shuman was a consultative examiner who saw the plaintiff on two occasions (which addresses the factors of the examining relationship, the length of the treatment relationship, and any specialties Dr. Shuman had) (see Tr. 35, 37). The ALJ also addressed the supportability and consistency of Dr. Shuman's opined limitations (Tr. 35, 37). Indeed, the plaintiff has not argued that the ALJ failed to explain the consistency or supportability (or any of the other applicable opinion evaluation factors) in considering Dr. Shuman's opinion; instead, the plaintiff argues that the ALJ erred by not adopting Dr. Shuman's opinion that the plaintiff was disabled (see doc. 21 at 29-30). However, the ALJ was not required to address Dr. Shuman's opinion that the plaintiff should continue obtaining disability under either the old or the current regulations. See 20 C.F.R. §§ 404.1527(d), 419.927(d) (noting under the old regulations that opinions that an individual is disabled are not medical opinions that need to be weighed “because they are administrative findings that are dispositive of a case”); see also id. §§ 404.1520b(c), 416.920b(c) (noting that no analysis is required of evidence that is “inherently neither valuable nor persuasive” including whether you are disabled under the new regulations).
As noted, the plaintiff's only other argument regarding the ALJ's evaluation of opinion evidence from Dr. Shuman is conflated with her RFC assessment arguments and has been addressed supra. Indeed, the plaintiff has not identified record evidence ignored by the ALJ in determining that Dr. Shuman's opinion was only due partial weight and was only partially persuasive. For example, Dr. Shuman's examination findings that the plaintiff had no difficulty lifting, cooking, cleaning or shopping are not supportive of his opined limitations that the plaintiff would have frequent limitations in prolonged standing, prolonged walking, bending, lifting, and carrying objects. Other record evidence was similarly inconsistent with Dr. Shuman's opined limitations, as recognized by the ALJ (Tr. 35, 37). Indeed, the plaintiff's reported ADLs of going to the mall (when her feet were not hurting), driving, making simple meals, caring for her own personal care routine, among others, were not consistent with Dr. Shuman's severe opined limitations. In light of this record evidence, as noted by the ALJ, Dr. Shuman's opined limitations were only due partial weight and were only partially persuasive.
This court should not disturb the ALJ's weighing of the medical opinion evidence of record absent some indication the ALJ dredged up “specious inconsistencies.” Dunn v. Colvin, 607 Fed.Appx. 264, 267 (4th Cir. 2015) (citing Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992)). As such, the undersigned finds that the ALJ's evaluation of the opinion evidence is based upon substantial evidence, without legal error, and should be affirmed.
Subjective Complaints
The plaintiff also asserts that the ALJ erred by finding that the plaintiff's subjective complaints were not consistent with the record evidence (doc. 21 at 31-34). The Court of Appeals for the Fourth Circuit has stated as follows with regard to the analysis of a claimant's subjective complaints:
[T]he determination of whether a person is disabled by pain or other symptoms is a two-step process. First, there must be objective medical evidence showing the existence of a medical impairment(s) which results from anatomical, physiological, or psychological abnormalities and which could reasonably be expected to produce the pain or other symptoms alleged. . . . ....
It is only after a claimant has met her threshold obligation of showing by objective medical evidence a medical impairment reasonably likely to cause the pain claimed, that the intensity and persistence of the claimant's pain, and the extent to which it affects her ability to work, must be evaluated.Craig v. Chater, 76 F.3d 585, 594-95 (4th Cir. 1996) (citations and internal quotation marks omitted) (emphasis in original). In Hines v. Barnhart, a Fourth Circuit panel held, “Having met his threshold obligation of showing by objective medical evidence a condition reasonably likely to cause the pain claimed, [the plaintiff] was entitled to rely exclusively on subjective evidence to prove the second part of the test, i.e., that his pain [was] so continuous and/or so severe that it prevented] him from working a full eight-hour day.” Hines, 453 F.3d 559, 565 (4th Cir. 2006). However, the court in Hines also acknowledged that “‘[o]bjective medical evidence of pain, its intensity or degree (i.e., manifestations of the functional effects of pain such as deteriorating nerve or muscle tissue, muscle spasm, or sensory or motor disruption), if available should be obtained and considered.'” Id. at 564.
The court further acknowledged:
While objective evidence is not mandatory at the second step of the test, “[t]his is not to say, however, that objective medical evidence and other objective evidence are not crucial to evaluating the intensity and persistence of a claimant's pain and the extent to which it impairs her ability to work. They most certainly are. Although a claimant's allegations about her pain may not be discredited solely because they are not substantiated by objective evidence of the pain itself or its severity, they need not be accepted to the extent they are inconsistent with the available evidence, including objective evidence of the underlying impairment, and the extent to which that impairment can reasonably be expected to cause the pain the claimant alleges she suffers.”Id. at 565 n.3 (quoting Craig, 76 F.3d at 595); see Johnson v. Barnhart, 434 F.3d 650, 658 (4th Cir. 2005); 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2) (“We must always attempt to obtain objective medical evidence and, when it is obtained, we will consider it in reaching a conclusion as to whether you are disabled. However, we will not reject your statements about the intensity and persistence of your pain or other symptoms or about the effect your symptoms have on your ability to work solely because the available objective medical evidence does not substantiate your statements.”).
A claimant's symptoms, including pain, are considered to diminish her capacity to work to the extent that alleged functional limitations are reasonably consistent with objective medical evidence and other evidence. 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4). Furthermore, “a formalistic factor-by-factor recitation of the evidence” is unnecessary as long as the ALJ “sets forth the specific evidence he relies on” in evaluating the claimant's subjective symptoms. White v. Massanari, 271 F.3d 1256, 1261 (10th Cir. 2001). In making these determinations, the ALJ's decision “must contain specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms.” SSR 16-3p, 2017 WL 5180304, at *10 (applicable date Mar. 28, 2016). The factors to be considered by an ALJ in evaluating the intensity, persistence, and limiting effects of an individual's symptoms include the following:
(1) the individual's daily activities;
(2) the location, duration, frequency, and intensity of the individual's pain or other symptoms;
(3) factors that precipitate and aggravate the symptoms;
(4) the type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms;
(5) treatment, other than medication, the individual receives or has received for relief of pain or other symptoms;
(6) any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and
(7) any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms.20 C.F.R. §§ 404.1529(c), 416.929(c).
Here, the plaintiff argues that the ALJ erred in the subjective complaints analysis because the ALJ did not indicate which evidence was inconsistent with the plaintiff's subjective complaints (doc. 21 at 31-34). The plaintiff also argues that the ALJ erred by not finding Dr. Shuman's opinion that the plaintiff was disabled consistent with her reports that she was disabled (Id. at 31-32), which was addressed supra. The court finds no error in the ALJ's consideration of the plaintiff's subjective complaints. In the ALJ's decision, the plaintiff's subjective complaints were set out in detail (Tr. 34-36). In evaluating the plaintiff's subjective complaints, the ALJ found that while the plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms, her statements concerning the intensity, persistence, and limiting effects of the symptoms were “not entirely consistent with the objective medical and other evidence for the reasons explained in [the] decision” (Tr. 36). In analyzing the appropriateness of the RFC assessment in light of the record evidence, the ALJ analyzed internal inconsistencies in the plaintiff's subjective complaints as well as inconsistencies between the plaintiff's subjective complaints and the record evidence (Tr. 31-39).
Here, with no reference to record evidence (other than opinion evidence from Dr. Shuman), the plaintiff argues that the ALJ did not specify which records were inconsistent with her subjective complaints (doc. 21 at 31-34). However, the plaintiff has not provided reference to consistent records ignored by the ALJ in his analysis and has failed to argue which consistency factors were ignored or not explained in the ALJ's decision. For example, the ALJ noted that although the plaintiff indicated when she met with Dr. Shuman that she could not stand more than five minutes, she also reported being able to cook, clean, shop, dress herself, and feed herself (Tr. 36). Similarly, although the plaintiff testified that she had trouble with her arms, hands, and “everything” secondary to neuropathy, she also testified that she was only sometimes limited in her ability to drive and noted ADLs of caring for her own personal care routine, cooking simple dishes, feeding herself, watching television, and reading (Tr. 60, 61). The plaintiff's function report likewise indicated that she had no trouble with her personal care routine (although she used a chair in the bath), fixed some meals, washed dishes sitting down, did the laundry, shopped in stores for groceries, would read for most of the day, could drive, made the bed daily, and loved going to the mall when her feet did not hurt (Tr. 256-63). In light of these inconsistent subjective reports, as noted by the ALJ, additional limitations were not required in the RFC assessment.
Indeed, as recognized by the ALJ, although the plaintiff reported difficulty standing or walking secondary to constant pain in her feet, examination findings were relatively benign, including normal musculoskeletal range of motion (“ROM”) findings with no edema, tenderness, or deformity (Tr. 426-29, 431,497-98, 501-02, 506, 508, 520-21, 529 (noting low back pain, but full ROM in all extremities with full muscle strength), 677, 680, 756-57, 759, 766-67, 774, 776-77). Indeed, although Ms. Buryk and Ms. Bailey noted bilateral high arched feet with decreased lower extremity sensation, the plaintiff still had mostly normal motor strength (4/5 or 5/5) with a wide based gait (Tr. 763-64, 771-72). Similarly, when the plaintiff presented to Ketan Jhunjhunwala, M.D., although she reported bilateral lower extremity weakness, examination findings were relatively benign, noting normal cervical ROM, bilateral lower limb high arched foot, 1+ reflexes, wide-based gait, normal tandem walk, normal motor exam, motor strength of 4/5 or 5/5, decreased sensation from the bilateral ankles, and normal coordination (Tr. 669-76). Moreover, the plaintiff only had an abnormal or limping gait noted on three occasions (Tr. 459, 464, 472), and although a wide-based gait was noted on three occasions (Tr. 675, 764, 772), other treatment records noted no gait problem or a normal gait (Tr. 475, 497, 506, 507, 520, 674, 679). As noted by the ALJ, these records were not consistent with the plaintiff's subjective reports that pain in her feet prevented standing and walking and did not require additional RFC limitations (Tr. 35-39). As noted, the plaintiff has not asserted that the ALJ failed to address any of the other consistency factors as set forth by SSR 16-3p. Nevertheless, the undersigned notes that the ALJ provided an analysis of the plaintiff's subjective complaints based upon the factors provided in SSR 16-3p. As such, based upon the foregoing, the ALJ's subjective complaints analysis is supported by substantial evidence, without legal error, and should be affirmed.
CONCLUSION AND RECOMMENDATION
The Commissioner's decision is based upon substantial evidence and is free of legal error. Now, therefore, based upon the foregoing, IT IS RECOMMENDED that the Commissioner's decision be affirmed.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
250 East North Street
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).