Opinion
C/A No.: 1:17-1101-MGL-SVH
01-23-2018
Lisa Jane Velluto Kolb, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
This appeal from a denial of social security benefits is before the court for a Report and Recommendation ("Report") pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her claim for Disability Insurance Benefits ("DIB"). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether she applied the proper legal standards. For the reasons that follow, the undersigned recommends that the Commissioner's decision be reversed and remanded for further proceedings as set forth herein. I. Relevant Background
A. Procedural History
On June 12, 2014, Plaintiff protectively filed an application for DIB in which she alleged her disability began on May 21, 2012. Tr. at 70 and 170-73. Her application was denied initially and upon reconsideration. Tr. at 103-06 and 112-17. On March 22, 2016, Plaintiff had a hearing before Administrative Law Judge ("ALJ") John T. Molleur. Tr. at 35-69 (Hr'g Tr.). The ALJ issued an unfavorable decision on May 4, 2016, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 18-34. Subsequently, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. Tr. at 1-5. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on April 27, 2017. [ECF No. 1].
Plaintiff subsequently filed an application for Supplemental Security Income ("SSI") on August 9, 2014, but it is unclear whether this application was processed. Tr. at 174-78. The Notice of Disapproved Claim and Notice of Reconsideration address only the DIB claim, and the ALJ did not mention the SSI claim in his decision. See Tr. at 21, 103-06, and 112-17.
B. Plaintiff's Background and Medical History
1. Background
Plaintiff was 52 years old at the time of the hearing. Tr. at 42. She completed high school and some college, but did not obtain a degree. Id. Her past relevant work ("PRW") was as an administrative assistant. Tr. at 62. She alleges she has been unable to work since May 21, 2012. Tr. at 170.
The record contains additional evidence that Plaintiff submitted to the Appeals Council (Tr. at 787-815), but the undersigned has declined to summarize this evidence because it was not before the ALJ and Plaintiff has not challenged the Appeals Council's finding that the additional evidence did not provide a basis for changing the ALJ's decision.
Plaintiff initiated treatment with rheumatologist Clarence W. Legerton, M.D. ("Dr. Legerton"), on June 1, 2011. Tr. at 351. She reported that she had been diagnosed with fibromyalgia in 1991 and that her pain had worsened over the prior three- to four-month period, resulting in poor sleep, low energy, weight gain, and depressed mood. Id. Dr. Legerton observed Plaintiff to be morbidly obese. Tr. at 352. He noted the presence of 18 of 18 fibromyalgia tender points. Id. He referred Plaintiff for lab work, prescribed Trazodone and Neurontin, continued Cymbalta, and instructed Plaintiff to walk for exercise. Tr. at 353 and 355.
Plaintiff presented to Industrial Medical Center on August 8, 2011, after sustaining a three-foot fall from a chair onto the floor and injuring her lower back and tailbone. Tr. at 329. Marcus Schaefer, M.D. ("Dr. Schaefer"), assessed strains to Plaintiff's lumbosacral and thoracic spine. Id. He referred Plaintiff to physical therapy and prescribed ibuprofen and Skelaxin. Id.
Plaintiff presented to the emergency room ("ER") at Moncks Corner Medical Center the next day with complaints of a headache and severe neck pain. Tr. at 333. Susan M. Smith, M.D. ("Dr. Smith"), described Plaintiff as "in severe distress" and noted decreased range of motion ("ROM") of the neck; moderate soft tissue tenderness throughout the neck; limited ROM of the back; and moderate tenderness throughout the lumbar spine. Tr. at 333-34. X-rays of Plaintiff's lumbosacral spine showed mild degenerative disc disease at L4-5 and L5-S1, but x-rays of her cervical spine were normal. Tr. at 334. Dr. Smith assessed lumbar strain and contusion, acute cervical strain, hypertension, and contusion to the coccyx. Id. She prescribed Zofran, Percocet, and Phenergan and instructed Plaintiff to follow up with her doctor in three days if she failed to improve. Tr. at 335-36.
Plaintiff presented to Doctors Care on August 11, 2011, and reported pain in her sacrum and paraspinous muscles. Tr. at 366. The attending physician assessed a tailbone contusion and a lumbar strain and administered a Toradol injection. Id.
Plaintiff returned to Doctors Care on August 15, 2011, for neck pain. Tr. at 370. She reported lightheadedness that occurred when she turned to the right and indicated she was afraid to drive. Id. An x-ray of Plaintiff's cervical spine was negative. Id. She had 5/5 neck strength and full ROM. Id. The provider instructed Plaintiff to continue taking Naproxen and Skelaxin and to take Flexeril only at night. Id.
Plaintiff presented to Sandra Brehmer, FNP ("Ms. Brehmer"), on August 16, 2011, with complaints of back and neck pain. Tr. at 425. She described pain in her tailbone that radiated to her low back and was exacerbated by sitting. Id. She indicated she would experience a "flash" of pain in her neck if she turned it too quickly. Id. Ms. Brehmer observed Plaintiff to appear agitated and in pain. Tr. at 426. She noted restricted ROM in Plaintiff's lumbar and cervical spine. Id.
Plaintiff underwent magnetic resonance imaging ("MRI") of her cervical and lumbar spine the same day. Tr. at 402-05. The MRI of her cervical spine showed no severe stenosis, but "scattered mild interspinous ligament edema in the upper and lower cervical spine, possibly due to ligamentous strain or sprain" and mild mid-cervical spondylosis that was most-evident at C5-6, "where there might be slight contact exiting C6s by foraminal disc osteophyte complexes." Tr. at 402. The MRI of her lumbar spine indicated mild degenerative disc disease and mild-to-moderate facet arthropathy that was most pronounced at L3-4 through L5-S1, but no significant stenosis, definite neural contact, or acute fracture. Tr. at 404.
Plaintiff returned to Dr. Legerton on August 17, 2011, and reported that she had recently sustained a fall that had caused pain in her buttocks, back, and neck. Tr. at 349. She indicated she was having a "bad fibro day," but stated it was the first one in three weeks. Id. She reported she was no longer taking Cymbalta, but that her mood was better and her affect was "not as flat." Id. Dr. Legerton observed Plaintiff to be very tender in her spine and back and diffusely tender in the fibromyalgia tender points. Id. He noted that Plaintiff was "actually doing well" and continued her on her same medications. Id.
Plaintiff initiated physical therapy for her lumbar spine on August 18, 2011. Tr. at 518. She reported a high level of pain and was unwilling to perform multiple exercises. Tr. at 519. The physical therapist recommended that Plaintiff be seen twice a week for four weeks. Tr. at 520. Plaintiff received subsequent authorization for additional visits. Tr. at 526-27.
Plaintiff followed up at Doctors Care on August 25, 2011. Tr. at 374. She complained of low back pain that woke her during the night, but indicated her tailbone was no longer hurting. Id. The provider noted that Plaintiff was moving slowly and was unwilling to sit. Id. He prescribed ibuprofen, Skelaxin, and Trazodone and instructed Plaintiff to continue physical therapy and follow up with a neurosurgeon. Id.
Plaintiff presented to neurosurgeon Joseph M. Marzluff, M.D. ("Dr. Marzluff"), for evaluation of neck and back pain on August 31, 2011. Tr. at 341-42. She reported a history of fibromyalgia, but indicated the new-onset pain was different. Tr. at 341. She described her back pain as primarily axial and endorsed pain in the back of her neck that occasionally radiated into her head and right arm. Id. Dr. Marzluff observed Plaintiff to have restricted ROM of the neck and back in all directions. Id. He indicated that straight-leg raising ("SLR") at 90 degrees reproduced Plaintiff's back pain, but did not cause radicular pain. Id. He observed no motor, sensory, or reflex abnormality. Id. He stated Plaintiff's symptoms were consistent with cervical and lumbar strain with exacerbation of preexisting degenerative disc disease. Id. Dr. Marzluff indicated Plaintiff did not require surgical intervention. Tr. at 342. He referred her to a pain management physician. Id.
Plaintiff presented to Summar Phillips, M.D. ("Dr. Phillips"), for an initial pain management evaluation on September 8, 2011. Tr. at 392. She described her neck pain as radiating into the base of her skull and her back pain as radiating across her back and into her left hip, buttock, thigh, and knee. Id. She indicated her pain was exacerbated by turning her head, driving, reading, performing household chores, and typing. Id. Dr. Phillips noted the following abnormalities on examination: tenderness, paraspinous spasm, pain with ROM, and limited flexion, extension, bilateral rotation of the neck; antalgic gait; decreased sensation to the right lower extremity; pain with ROM and paraspinous tenderness in the lumbar spine and sacroiliac ("SI") joint; painful SLR test on the right; inability to heel and toe walk; bilateral trochanteric bursa tenderness; and pain with ROM of the right hip. Tr. at 394. She assessed cervicalgia, muscle spasm, back pain, radicular syndrome of the lower limbs, radicular syndrome of the upper limbs, spinal stenosis of the lumbar region, degenerative disc disease of the lumbosacral spine, degenerative disc disease of the cervical spine, and facet arthropathy. Id. She discontinued ibuprofen and Flexeril, prescribed Valium and Mobic, and instructed Plaintiff to continue physical therapy. Id. She indicated she would schedule Plaintiff for a cervical epidural steroid injection ("ESI"). Id.
On September 11, 2011, Plaintiff complained of paresthesias in her left leg, radicular pain in her right leg, bilateral trapezius pain, and headache. Tr. at 379. She indicated that a transcutaneous nerve stimulation ("TENS") unit had worsened her pain and that physical therapy was providing no relief. Id. The provider authorized additional physical therapy sessions and prescribed Lortab. Id.
Dr. Phillips administered a cervical ESI at C5-6 on September 20, 2011. Tr. at 395-96. On September 24, 2011, Plaintiff reported her cervical ROM had slightly improved. Tr. at 383. She indicated she felt better overall, but continued to have some bad days. Id. The provider indicated Plaintiff should continue to work with restrictions for three hours per day, but anticipated that she would be able to increase her work hours at her next visit. Tr. at 384.
On October 6, 2011, Plaintiff reported that her symptoms had improved during the prior week, but had subsequently worsened. Tr. at 387. She stated she was unable to tolerate any position for longer than 15 to 20 minutes and could not stand for longer than five minutes at a time. Id. The provider referred Plaintiff for additional physical therapy sessions. Id.
On October 17, 2011, Plaintiff reported that she had discontinued Valium and Mobic on her own because they had been ineffective and had caused side effects. Tr. at 397. She indicated she had restarted ibuprofen and Flexeril. Id. She stated the cervical ESI had allowed her to perform her normal activities in less pain, but continued to report difficulty reading and performing her job. Tr. at 397 and 398. Dr. Phillips observed Plaintiff to have pain with flexion, extension, and bilateral rotation of the neck, paraspinous spasms, and tenderness to the trapezius muscle, but she indicated Plaintiff's ROM was slightly improved. Tr. at 397. Dr. Phillips referred Plaintiff to physical therapy for her neck and indicated she would schedule a second cervical ESI. Tr. at 398. She administered a second ESI at Plaintiff's C5-6 level on October 25, 2011. Tr. at 399-400.
Plaintiff presented to orthopedic surgeon James K. Aymond, M.D. ("Dr. Aymond"), for an initial evaluation on November 11, 2011. Tr. at 450. She reported pain in her interscapular area and posterior neck and dysesthesias in her left upper extremity. Id. She endorsed some lower back pain, but indicated it had improved since her injury. Id. Dr. Aymond observed Plaintiff to walk with a normal heel-to-toe gait and to be able to heel and toe walk without difficulty. Tr. at 451. He noted slightly reduced deep tendon reflexes in the biceps, brachioradialis, and triceps tendons and a slightly diminished sensory examination in the C6 dermatome distribution bilaterally. Id. Plaintiff had normal sensation in her lower extremities and no radicular pain with SLR test. Id. Dr. Aymond diagnosed lumbar strain and contusion and cervical hyperflexion injury with cervical disc protrusion and uncovertebral joint hypertrophy at the C5-6 level with symptomatic neck pain and upper extremity dysesthesias. Id. He recommended Plaintiff participate in additional physical therapy for her neck and remain on limited duty at work. Tr. at 451 and 529.
On January 13, 2012, Dr. Aymond observed Plaintiff to have limited ROM in the cervical and lumbar spine, but normal motor and sensory examinations. Tr. at 452. He ordered additional physical therapy sessions for Plaintiff's low back. Id.
Plaintiff continued to report pain in her bilateral buttocks, low back, and posterior neck on February 17, 2012. Tr. at 455. Dr. Aymond observed limited ROM of the lumbar and cervical spine and pain in the low back and bilateral buttocks on SLR test, but indicated Plaintiff's neurological exam was normal. Id. He recommended Plaintiff obtain an updated MRI scan. Id.
Plaintiff underwent a second MRI of the lumbar spine on March 12, 2012. Tr. at 406. It indicated mild-to-moderate facet arthropathy that was greatest at L5-S1, as well as mild degenerative disc changes without disc herniation or stenosis. Id.
On April 11, 2012, Dr. Aymond noted that the recent MRI of Plaintiff's lumbar spine showed slight disc desiccation at L4-5 and L5-S1 with no evidence of disc bulge or herniation. Tr. at 457. He noted that Plaintiff had limited flexion and extension of the lumbar spine and was tender over the midline of the lower lumbar spine and the paraspinous muscles. Id. He indicated SLR testing produced low back pain. Id. He prescribed Lortab, Skelaxin, and Motrin and recommended that Plaintiff undergo two lumbar ESIs. Id. He indicated Plaintiff would be limited to lifting 20 pounds or less and should avoid bending, twisting, and sitting in elevated chairs. Tr. at 458 and 459.
Plaintiff presented to orthopedic surgeon Donald R. Johnson, II, M.D. ("Dr. Johnson"), for an independent medical evaluation ("IME") on April 30, 2012. Tr. at 412-13. She complained of low back pain and neck pain that radiated through her upper shoulders and into her right arm. Tr. at 412. Dr. Johnson indicated a cervical MRI showed multilevel degenerative changes and foraminal disc and bone spur complexes that contacted the exiting nerve roots. Id. He stated the lumbar MRI showed facet arthropathy and degenerative changes at L3-4, L4-5, and L5-S1, but no disc herniation or stenosis. Id. Plaintiff described her pain as a five on a 10-point scale and indicated it was exacerbated by sitting and looking down. Id. Dr. Johnson observed Plaintiff to be 5'3" tall and to weigh 260 pounds. Tr. at 413. He noted that Plaintiff was diffusely tender in the midline, had limited ROM of her neck and low back, and reported pain with extension of her arm at the shoulder. Id. His impressions were cervical spondylosis with stenosis most pronounced at C5-6 and degenerative disc disease at L3-4, L4-5, and L5-S1. Id. He recommended that Plaintiff obtain an updated MRI of her cervical spine to determine if surgery was indicated. Id. He stated possible treatment options for the lumbar spine including ESIs, rhizotomy, and spinal cord stimulator, but indicated the MRI results did not suggest surgery would be beneficial. Id. He did not feel that Plaintiff had reached maximum medical improvement and did not believe she should return to work at that time. Id.
Thomas D. Wooten, Jr., M.D. ("Dr. Wooten"), administered a lumbar ESI on May 7, 2012. Tr. at 497.
On May 15, 2012, a computed tomography ("CT") scan of Plaintiff's cervical spine showed no acute fracture, dislocation, or significant degenerative changes. Tr. at 431.
Plaintiff reported increased pain in her neck, right shoulder, and right forearm on May 25, 2012. Tr. at 460. Dr. Aymond observed Plaintiff to have normal sensation to light touch and pinprick in the C5-6 and C7 dermatomes and tenderness to palpation of the posterior aspect of the neck. Id. He noted Plaintiff's complaints of radicular pain into the right upper extremity. Id. He assessed cervical radiculopathy, low back pain, and morbid obesity. Id. He referred Plaintiff for a new MRI of the cervical spine and authorized her to remain out of work until after he had an opportunity to review her MRI results. Tr. at 463 and 463. Plaintiff subsequently received a second lumbar ESI. Tr. at 494.
Plaintiff underwent an MRI scan of her cervical spine on June 14, 2012, that showed no disc herniation or significant central stenosis. Tr. at 415. However, it indicated an annular bulge at C5-6 that combined with reversal of the normal curvature to cause ventral canal narrowing and minimal ventral cord flattening. Id. It also showed uncovertebral hypertrophy with mild bilateral foraminal narrowing. Id.
Plaintiff presented to Beth Price, M.D. ("Dr. Price"), for a complete physical examination on June 18, 2012. Tr. at 420. Dr. Price noted sinus tachycardia. Tr. at 422. She observed Plaintiff to be 63 inches tall and to weigh 260 pounds. Tr. at 421. Plaintiff requested Phentermine for weight loss, but Dr. Price declined to prescribe the medication in light of Plaintiff's abnormal electrocardiogram ("EKG"). Tr. at 420 and 422. She advised Plaintiff to eliminate diet sodas and to find a pool for exercise. Tr. at 422.
Plaintiff followed up with Dr. Aymond to review the results of the cervical MRI scan on June 19, 2012. Tr. at 464. Dr. Aymond stated the MRI showed a central disc bulge at the C5-6 level. Id. Plaintiff continued to report aching pain in her low back, neck, interscapular area, and bilateral shoulders. Id. Dr. Aymond observed Plaintiff to have limited cervical rotation and slightly diminished sensation in the right C6 dermatome distribution. Id. He recommended anterior cervical discectomy and fusion at the C5-6 level and referred Plaintiff to Edward Nolan, M.D. ("Dr. Nolan"), for management of her low back pain. Id. He indicated Plaintiff should remain out of work until after a six-week follow up visit. Tr. at 468.
Plaintiff presented to Dr. Nolan with complaints of pain in her neck, low back, left hip, and tailbone on July 17, 2012. Tr. at 672. She indicated her pain was aggravated by sitting, walking, and driving. Id. She stated her pain affected her sleep and physical and social activities. Id. Dr. Nolan observed Plaintiff to have intact and symmetrical cranial reflexes, slightly reduced deep tendon reflexes, decreased sensation to light touch in her right upper extremity and left lower extremity, normal coordination, grossly intact muscle strength, normal tone, antalgic gait, and negative SLR test. Tr. at 673. Plaintiff reported moderate pain from her bilateral cervical paraspinous muscles into the bilateral trapezius muscles; moderate cervical radicular pain with ROM in the right C5, C6, and C7 nerve distribution to the hand; moderate pain in her bilateral lumbar paraspinous muscles; and tenderness to palpation overlying the L3-4, L4-5, and L5-S1 facet joints. Id. Dr. Nolan assessed lumbar facet arthropathy and cervical radiculopathy. Id. He indicated he would take over management of Plaintiff's medications and would administer a lumbar facet injection after receiving authorization from the workers' compensation carrier. Id.
On August 7, 2012, Plaintiff reported that she was unable to sit for more than 30 minutes without experiencing severe pain in her lower back and coccyx. Tr. at 471. She continued to complain of pain in her posterior neck and interscapular area and upper extremity dysesthesias. Id. Dr. Aymond observed Plaintiff to have limited mobility of the cervical spine, normal motor strength, and slightly diminished sensation in the C6 dermatome distribution. Id. He indicated Plaintiff would proceed with cervical fusion and authorized her to remain out of work based on her inability to sit for greater than 30 minutes at a time. Id. However, on August 15, 2012, he authorized Plaintiff to return to work with the ability to change positions every two to four hours as needed. Tr. at 475.
Dr. Nolan administered facet lumbar injections to Plaintiff's bilateral L3-4, L4-5, and L5-S1 areas on August 22, 2012. Tr. at 670.
Plaintiff complained of pain in her neck and low back on September 6, 2012. Tr. at 666. She reported greater than 80 percent initial pain relief from lumbar facet injections, but indicated the pain had slowly returned to her right lower back. Id. Dr. Nolan noted moderate pain in Plaintiff's bilateral cervical paraspinous muscles to the shoulder, moderate pain in the right lumbar paraspinous muscles, and moderate pain in the coccyx. Tr. at 666-67. He indicated he would treat Plaintiff's lumbar facet arthropathy and coccydynia with injections during her next visit. Tr. at 667.
Dr. Nolan administered facet lumbar injections at the bilateral L3-4, L4-5, and L5-S1 levels on September 25, 2012. Tr. at 664.
On October 10, 2012, Plaintiff reported that she had received greater than 60 percent initial pain relief from the lumbar facet injections, but indicated the pain had returned. Tr. at 660. Dr. Nolan noted mild-to-moderate pain to palpation in the bilateral lumbar paraspinous muscles and moderate pain to palpation in the left piriformis muscle over the sciatic nerve. Tr. at 661. He indicated he would administer transforaminal ESIs during Plaintiff's next visit. Id.
Plaintiff presented to Curtis Worthington, M.D. ("Dr. Worthington"), for an IME on October 23, 2012. Tr. at 598. Dr. Worthington observed Plaintiff to have normal station and gait; to be able to walk on her heels and toes without difficulty; to be tender to palpation along the lower lumbar spinous process, sacrum, and cervical spine; to demonstrate full ROM; to have normal tone, bulk, and strength in all muscle groups; to have no sensory deficits; and to demonstrate symmetrical reflexes. Id. He reviewed Plaintiff's imaging studies and interpreted them to show mild multi-level degenerative changes to the lumbar spine and degeneration with disc collapse, increased angulation, and some bulging at the C5-6 level. Tr. at 599. He indicated Plaintiff had no compression of the spinal cord or clear compression of the nerve roots. Id. He opined that Plaintiff had a multifactorial pain syndrome that was affected by fibromyalgia and obesity. Id. He recommended a bone scan to rule out a lesion to the lumbar spine and a cervical discogram to determine if C5-6 discectomy and fusion would be beneficial. Id.
Dr. Nolan administered lumbar transforaminal ESIs to Plaintiff's bilateral L4 and L5 nerve roots on October 24, 2012. Tr. at 658.
Plaintiff complained of low back pain on December 19, 2012. Tr. at 654. She indicated that her last injection had provided greater than 80 percent initial pain relief, but that the pain had returned. Id. She reported that sitting and looking up and down exacerbated her pain. Id. Dr. Nolan refilled Plaintiff's medications and indicated he would administer additional injections during her next visit. Tr. at 655.
On January 11, 2013, CT discography of Plaintiff's cervical spine revealed anterior and posterior endplate overgrowth that extended throughout the annulus in a manner consistent with degenerative disc disease. Tr. at 485. It further showed mild canal narrowing secondary to disc osteophyte complex and likely minimal left and right foraminal encroachment. Id. Plaintiff underwent a whole body scan on January 16, 2013, that revealed no abnormality in the spine. Tr. at 481.
On January 22, 2013, Dr. Worthington explained to Plaintiff that her pain was multifactorial as a result of neck and low back pain and fibromyalgia, as opposed to being related entirely to the lesion at C5-6. Tr. at 584. However, he indicated that neck surgery would likely reduce Plaintiff's neck pain and arm discomfort. Id. He recommended C5-6 anterior discectomy with decompression of the spinal cord and nerve roots. Tr. at 585.
Dr. Nolan administered injections to Plaintiff's coccyx and lumbar spine on January 23, 2013. Tr. at 651-52.
Plaintiff returned to Dr. Worthington to review the operative plans on February 27, 2013. Tr. at 579. Dr. Worthington explained that he was "less confident in the success of the operation" because Plaintiff lacked radiculopathic and myelopathic signs and symptoms. Id. He indicated that Plaintiff would be admitted for anterior cervical discectomy at C5-6. Tr. at 580.
On March 7, 2013, Dr. Worthington and Michael C. Noone, M.D. ("Dr. Noone"), performed anterior cervical discectomy and fusion with instrumentation at the C5-6 level. Tr. at 499-502. Plaintiff presented for a postoperative visit on March 27, 2013, and reported that her headaches and the numbness and pain in her arms had resolved. Tr. at 577. She indicated she was better able to use her upper extremities for a longer period of time, but continued to be hoarse, cough, choke, and feel short of breath. Id. Dr. Worthington noted that Plaintiff continued to experience "a little bit of decreased range of motion, some mild focal cord problem, and difficulty sleeping," but was doing very well overall. Id. Plaintiff's wound was clean, dry, and well-healed and she demonstrated no neurological deficits. Id. Dr. Worthington prescribed Ativan for sleep and indicated Plaintiff should begin physical therapy in three weeks. Id.
On April 9, 2013, Plaintiff reported that she had received a 30-day supply of Oxycodone, Flexeril, and Lorazepam following her surgery, but had not finished all of the pills. Tr. at 647. She indicated the injections she received in January had helped her coccygeal pain, but had not worked as well for her low back pain. Id. Dr. Nolan noted no abnormalities on physical examination. Tr. at 647 and 649. He indicated he would administer injections to Plaintiff's low back and coccyx during her next visit. Id.
Plaintiff reported pain in her low back and tailbone on May 1, 2013. Tr. at 645. Dr. Nolan administered lumbar facet and coccyx injections. Tr. at 645-46.
Plaintiff presented for a physical therapy evaluation on May 6, 2013. Tr. at 531. She reported a significant decrease in cervical symptoms following her surgery, but indicated she continued to be awakened by neck stiffness a couple of times per night when she took less than a whole Ativan tablet. Id. She reported she took Lortab an average of once a week when she felt like she had overexerted herself. Id. She described her pain as ranging from a four to a six on a 10-point scale and indicated it was exacerbated by rotating her neck to the right, repetitively turning her head, and riding in a car. Id. She reported that her headaches had stopped and she was able to read again. Id. Physical therapist Julie Black indicated Plaintiff demonstrated good rehab potential. Tr. at 532. She scheduled Plaintiff for two-to-three sessions per week for four weeks. Id.
Plaintiff followed up with Dr. Worthington on May 29, 2013, and reported that her neck was "as good as it can be." Tr. at 575. She continued to complain of severe pain in her tailbone. Id. Dr. Worthington observed that Plaintiff's surgical wound was well-healed. Id. He referred Plaintiff for a new MRI of her lumbar spine. Id.
Plaintiff reported minimal relief from injection therapy on July 11, 2013. Tr. at 644. She complained of moderate coccygeal pain that intensified with sitting and moderate bilateral lumbar paraspinous muscle pain. Tr. at 643. Dr. Nolan continued Plaintiff's medications pending results of an MRI. Tr. at 644.
On July 15, 2013, an MRI scan of Plaintiff's lumbar spine showed an L5-S1 disc bulge with annular tear that caused moderate right and mild-to-moderate left foraminal narrowing. Tr. at 564-65.
On August 6, 2013, Dr. Worthington noted that Plaintiff was "largely recovered from her cervical spine operation," but complained "bitterly of low back pain in the coccygeal" area. Tr. at 573. He prescribed Diclofenac and referred Plaintiff to a pain management physician. Tr. at 574.
Plaintiff presented to orthopedic surgeon Michael Wildstein, M.D. ("Dr. Wildstein"), for an IME on October 23, 2013. Tr. at 613. She reported that surgery had relieved her neck and arm symptoms, but that she continued to experience persistent lower sacral region pain, a popping sensation in the coccyx, and an inability to sit without pain. Id. She endorsed pain in left lateral pelvic region that was worsened by ambulation. Id. Dr. Wildstein observed Plaintiff to ambulate with left-sided antalgia; to demonstrate full ROM of her spine and extremities; to have some difficulty with heel and toe walking; to be tender to palpation over the lower lumbar spine and paraspinous region; and to demonstrate normal reflexes. Tr. at 614. He stated Plaintiff had reached maximum medical improvement with respect to her neck injury. Id. He recommended imaging of Plaintiff's coccyx to determine if she had previously sustained a coccygeal fracture and noted that he did not see anything in imaging of Plaintiff's lumbar spine that would explain her pain. Id. He assessed a two percent impairment rating to Plaintiff's lower back and a six percent impairment rating to her cervical spine, which combined to give her a seven percent whole person impairment rating. Id. He stated Plaintiff would be allowed to return to work without restrictions, except for the ability to sit on a doughnut cushion. Id.
On December 16, 2013, Plaintiff presented to physical medical and rehabilitation and pain management physician Shailesh M. Patel, M.D. ("Dr. Patel"), with complaints of lumbar and cervical pain. Tr. at 617. She reported headaches and difficulty sleeping, but indicated that surgery had reduced her cervical pain by 80 percent. Id. Dr. Patel assessed a 20 percent whole-person impairment rating as related to Plaintiff's cervical spine. Id. He stated Plaintiff had not reached maximum medical improvement with respect to her low back and recommended an MRI scan of Plaintiff's sacrum and pelvis to specifically evaluate her coccydynia. Id. He observed Plaintiff to have painful ROM, an antalgic gait with a limp, decreased sensation to light touch in the thumbs, severe lumbar spasm, tenderness to palpation, and positive Patrick's/Faber test. Tr. at 619. He indicated Plaintiff had no crepitus or atrophy of the cervical spine, symmetrical posture, normal bilateral upper and lower extremity strength, normal paraspinous muscle tone, and a normal lower extremity neurovascular examination. Id. He recommended Plaintiff consider a spinal cord stimulator trial. Id. He indicated Plaintiff would be limited to light work with a sit-stand option and a 15-pound lifting restriction, but noted that a functional capacity evaluation ("FCE") would provider more specific work restrictions. Tr. at 618.
On December 17, 2013, Plaintiff reported overall pain relief following the lumbar facet injections in May 2013, but indicated she continued to experience pain in her low back and coccyx. Tr. at 640. She stated her coccygeal pain was "bothering her the most." Tr. at 641. Dr. Nolan observed grossly intact sensation, normal motor function, grossly intact muscle strength, and normal tone in Plaintiff's bilateral lower extremities. Tr. at 640. He noted that extension and rotation of Plaintiff's spine resulted in moderate pain in the bilateral lumbar paraspinous muscles in a bandlike distribution. Tr. at 640-41. He also indicated that Plaintiff was tender to palpation in the overlying facet joints and reported moderate-to-severe pain with sitting. Tr. at 641. He noted moderate pain in Plaintiff's left greater trochanteric bursa with ROM. Id. Dr. Nolan indicated that Plaintiff's treatment had been centered on her lower back and felt that he could reduce her pain by focusing instead on the coccyx region. Id. He recommended physical therapy for Plaintiff's back and hip pain. Id.
On January 27, 2014, Plaintiff rated her low back pain as an eight on a 10-point scale and indicated it was aggravated by sitting. Tr. at 637. Dr. Nolan administered coccygeal injections. Tr. at 638-39.
On April 21, 2014, Plaintiff complained of moderate pain in the bilateral lumbar paraspinous muscles in a bandlike distribution with extension and rotation of the spine. Tr. at 634-35. Allison Davis, NP-C ("Ms. Davis"), noted tenderness to palpation overlying the facet joints and moderate pain to palpation in the middle and lower coccyx. Tr. at 635. Dr. Nolan administered injections to Plaintiff's coccyx and bilateral L3-4, L4-5, and L5-S1 areas on May 5, 2014. Tr. at 631-32.
On July 28, 2014, Plaintiff reported that she had initially received greater than 90 percent pain relief for six weeks from the lumbar facet and coccygeal injections. Tr. at 683. Dr. Nolan administered bilateral lumbar facet injections at L3-4, L4-5, and L5-S1 on August 21, 2014. Tr. at 702.
On October 20, 2014, Plaintiff reported that the most-recent lumbar facet injections had initially provided greater than 80 percent pain relief that had lasted for one month. Tr. at 698. Dr. Nolan indicated he would refer Plaintiff for an FCE to determine her work status and would treat her with injections during her next visit. Tr. at 699. He administered injections to Plaintiff's coccyx and bilateral L3-4, L4-5, and L5-S1 lumbar facets on November 17, 2014. Tr. at 695-96.
Plaintiff presented to Rehabilitation Centers of Charleston for an FCE on November 20, 2014. Tr. at 721. Results of the examination indicated she was unable to work. Id.
Plaintiff presented to Allyson Thatcher, M.D. ("Dr. Thatcher"), for pain management on December 16, 2014. Tr. at 711. She complained of moderate pain in the bilateral lumbar paraspinous muscles, moderate pain in the middle coccyx, moderate lumbar radicular pain with ROM, and numbness in the left L5 nerve distribution to the ankle. Id. She reported some relief from lumbar facet injections, but minimal relief from coccygeal injections. Tr. at 712.
On January 14, 2015, Dr. Nolan noted that Plaintiff had participated in an FCE and that its results suggested she was unable to work. Tr. at 716. He requested a new MRI of Plaintiff's lumbar spine based on her complaints of increased pain and decreased ability to perform activities of daily living ("ADLs"). Id. On February 6, 2015, an MRI of Plaintiff's lumbar spine showed no significant changes. Tr. at 718.
Plaintiff presented to Ms. Davis on February 11, 2015. Tr. at 738. She reported greater than 25 percent pain relief from the most-recent injection. Id. She stated her pain was only reduced for a week and remained significant. Id. Ms. Davis discussed the MRI results with Plaintiff, and Dr. Nolan and refilled Plaintiff's pain medication. Tr. at 739. Dr. Nolan administered sacroiliac joint and greater trochanteric bursa injections on April 6, 2015. Tr. at 742-43.
On May 5, 2015, Dr. Thatcher maintained Plaintiff on the same medication regimen. Tr. at 745. Dr. Nolan administered lumbar facet injections on May 26, 2015. Tr. at 749.
Plaintiff complained of pain in her low back, neck, and tailbone on June 2, 2015. Tr. at 751. She indicated her pain was worsened by sitting and engaging in too much activity. Id. She reported multiple episodes in which her left leg gave out and caused her to fall. Tr. at 752. Dr. Thatcher referred Plaintiff back to Dr. Worthington. Id. Plaintiff subsequently denied additional episodes of her legs giving out during a visit on July 1, 2015. Tr. at 757. She indicated her pain medication had allowed her to be more active. Id.
On October 7, 2015, Plaintiff reported excellent relief of sacrococcygeal pain following the most-recent injection. Tr. at 762. However, she indicated that she had subsequently sustained a fall that resulted in injury to her buttocks and increased pain. Tr. at 761.
Plaintiff reported pain in her low back, hip, and tailbone on November 5, 2015. Tr. at 764. She indicated she had received two months of moderate relief from her last injection, but the pain had slowly returned. Id. Dr. Thatcher refilled Plaintiff's medications and recommended she receive coccygeal and lumbosacral injections during her next visit. Tr. at 765. Stephen Gilbert, Jr., M.D. ("Dr. Gilbert"), provided a low back brace on November 12, 2015. Tr. at 768.
Plaintiff complained of pain in her low back, hip, and neck on December 3, 2015. Tr. at 770. She rated her pain as an eight on a 10-point scale. Id. Dr. Thatcher noted that the workers' compensation carrier had not yet authorized additional injections. Tr. at 771. She prescribed Zanaflex and refilled Plaintiff's other medications. Id. After receiving authorization, Dr. Nolan administered bilateral L5 and S1 nerve root transforaminal ESIs on December 15, 2015. Tr. at 774-76. Plaintiff followed up with Dr. Thatcher for medication refills on January 6, 2015. Tr. at 777-79.
On February 4, 2016, Plaintiff reported pain in her low back, hip, and tailbone. Tr. at 780. Dr. Thatcher administered trigger point injections to Plaintiff's bilateral gluteus medius. Tr. at 781. On February 29, 2016, Plaintiff reported greater than 75 percent pain relief from the lumbar transforaminal ESIs she received in December. Tr. at 783. She indicated the injections had provided two months of pain relief, but that the pain had slowly returned. Id. Dr. Thatcher noted that the pain in Plaintiff's hip and sacroiliac region/buttocks region was significant and indicated that she would be scheduled for injections during her next visit. Tr. at 784-85.
C. The Administrative Proceedings
1. The Administrative Hearing
a. Plaintiff's Testimony
At the hearing on March 22, 2016, Plaintiff testified that she had sustained a work-related injury on August 8, 2011, but had continued to work three hours a day on modified duty until May 21, 2012. Tr. at 43. She indicated she injured her neck and tailbone when she fell from a stool. Tr. at 43-44. She stated her neck pain was initially the more severe of the two problems. Tr. at 44. She described the pain as radiating from her neck down her arm and causing numbness. Id. She indicated she experienced daily headaches for a year-and-a-half until she underwent surgery. Id.
Plaintiff testified that her neck pain had improved following surgery. Id. She indicated she continued to experience numbness in her right arm, but no longer had headaches. Tr. at 45. She endorsed neck stiffness and difficulty looking down. Tr. at 50.
Plaintiff described her low back pain as constant and exacerbated by activity. Id. She claimed her left leg sometimes gave way. Id. She indicated she had experienced six falls onto concrete over the course of the prior year, as well as an unspecified number of falls onto other surfaces. Tr. at 46-47.
Plaintiff endorsed a history of treatment for fibromyalgia. Tr. at 51. She stated she was receiving ongoing treatment from a rheumatologist and indicated the condition was fairly well-maintained, except during periods of flare up. Id.
Plaintiff testified that she had been seeing Dr. Nolan for pain management since July 17, 2012. Tr. at 48. She indicated that she continued to see Dr. Nolan on a monthly basis and that he provided injection treatment. Id. She denied that Dr. Nolan had authorized her to return to work. Tr. at 49.
Plaintiff informed the ALJ that she was taking Hydrocodone twice daily and Skelaxin three times daily. Tr. at 51. She indicated she used Flexeril, Zantac, and ibuprofen. Id. She stated she only took Flexeril if she did not have to get up in the morning because she had difficulty functioning after taking the medication. Id. She indicated her medicines generally caused her to feel drowsy and to have difficulty concentrating. Tr. at 52. She stated the impairment to her concentration had been so pronounced that it took her two weeks to read a book that she could have previously read in a day or two. Id. She claimed that she would not be able to return to her PRW because she would be too "sleepy" or "dopey" to stay on task. Id.
Plaintiff testified that she was generally able to sit for no longer than 30 minutes at a time, but indicated she could sit for longer if she could reduce the pressure on her back. Tr. at 52-53. She stated she was better able to stand than to sit. Tr. at 53. She estimated she could stand for 30 minutes to an hour, but indicated she functioned best if she could lean against something or raise one foot to prevent numbness in her leg. Id. She stated she could likely alternate between sitting and standing for three hours before she would need to lie down. Tr. at 53-54. She estimated that she spent half to three-quarters of a typical day in a reclined position. Tr. at 54. She endorsed problems with bending and reaching. Tr. at 54-55.
Plaintiff stated that she had received some relief from injection treatment, but indicated her pain was never less than a four or five on a 10-point scale. Tr. at 55. She indicated she received injections every three months and testified that her pain became more intense when she neared the time for the next injection. Tr. at 56.
b. Vocational Expert Testimony
Vocational Expert ("VE") Arthur F. Schmitt, Ph. D., reviewed the record and testified at the hearing. Tr. at 62-67. The VE categorized Plaintiff's PRW as an administrative assistant, Dictionary of Occupational Titles ("DOT") number 169.167-010, as requiring sedentary exertion and having a specific vocational preparation ("SVP") level of seven, and an insurance agent, DOT number 250.257-014, as requiring light exertion and having an SVP level of six. Tr. at 62-63. The ALJ described a hypothetical individual of Plaintiff's vocational profile who could lift and carry 20 pounds occasionally and 10 pounds frequently; could stand and walk each for up to four hours in an eight-hour workday; could sit for up to six hours in an eight-hour workday; should avoid climbing ladders, ropes, or scaffolds; could frequently push and pull with the right upper extremity; could occasionally reach overhead; could frequently reach in all directions other than overhead with the right upper extremity; could frequently handle, finger, and feel with the right hand; could occasionally perform all other postural activities; could be exposed to extreme cold on no more than an occasional basis; should not directly be exposed to vibrations; and should not work at unprotected heights. Tr. at 63-64. The VE testified that the hypothetical individual could perform Plaintiff's PRW. Tr. at 64.
The ALJ later concluded that Plaintiff's work as an insurance agent had been performed prior to the relevant period. See Tr. at 27 and 64.
The ALJ asked the VE to further consider that the individual would be limited to sitting for four hours in an eight-hour workday and would need to alternate between sitting and standing approximately every 30 minutes while remaining at the work station. Id. The VE testified that the individual would be able to perform Plaintiff's PRW. Id.
The ALJ asked the VE to consider that the individual would be capable of performing only basic two- and three-step tasks because of effects of pain medication and other complications arising from her diagnosed conditions. Id. He asked if she would still be able to perform her PRW. Id. The VE stated she would not. Tr. at 65. The ALJ asked if there would be other jobs that the individual could perform. Id. The VE identified light jobs with an SVP of two as a storage facility clerk, DOT number 295.367-026, with 4,400 position in South Carolina and 416,000 positions in the national economy and a ticket taker, DOT number 344.667-010, with 1,260 positions in South Carolina and 104,000 positions in the national economy. Id. He identified a sedentary job with an SVP of two as a surveillance system monitor, DOT number 379.367-010, with 550 positions in South Carolina and 74,400 positions in the national economy. Id.
The ALJ asked the VE to consider an individual who could stand and walk for no more than two hours in an eight-hour workday and could sit for no more than four hours in an eight-hour workday. Tr. at 65-66. He asked if the individual would be able to perform any jobs. Tr. at 66. The VE testified that the restrictions ruled out all competitive employment. Id.
Plaintiff's attorney asked the VE to consider that the individual would be absent from work as often as two days per month. Id. He asked if the additional restriction would affect the availability of jobs. Id. The VE stated the restriction would render the individual unemployable. Tr. at 67.
2. The ALJ's Findings
In his decision dated May 4, 2016, 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, 2017.
2. The claimant has not engaged in substantial gainful activity since May 21, 2012, the alleged onset date (20 CFR 404.1571 et seq.).Tr. at 23-27. II. Discussion
3. The claimant has the following severe impairments: obesity, degenerative disc disease of the cervical spine, status post fusion, and degenerative disc disease of the lumbar spine. (20 CFR 404.1520(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform the full range of light work as defined in 20 CFR 404.1567(b). Specifically, the claimant is able to lift and carry up to 20 pounds occasionally and 10 pounds frequently and stand, walk, and sit for 6 hours in an 8-hour day.
6. The claimant is capable of perform past relevant work as an administrative assistant. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565).
7. The claimant has not been under a disability, as defined in the Social Security Act, from May 21, 2012, through the date of this decision (20 CFR 404.1520(f)).
Plaintiff alleges the Commissioner erred for the following reasons:
1) the ALJ did not properly evaluate the medical opinions of record;
2) the ALJ did not consider coccydynia as a severe impairment;
3) the ALJ did not comply with the requirements of SSR 82-62 in finding that Plaintiff could perform her PRW; and
4) the ALJ did not make specific findings in assessing Plaintiff's subjective symptoms.
The Commissioner counters that substantial evidence supports the ALJ's findings and that the ALJ committed no legal error in his decision.
A. Legal Framework
1. The Commissioner's Determination-of-Disability Process
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a "disability." 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability as:
the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for at least 12 consecutive months.42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983) (discussing considerations and noting "need for efficiency" in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity; (2) whether she has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents her from doing substantial gainful employment. See 20 C.F.R. § 404.1520. 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, she 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 her impairments match several specific criteria or are "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).
In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's past relevant work to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. § 404.1520(h).
A claimant is not disabled within the meaning of the Act if she can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, § 404.1520(a), (b); Social Security Ruling ("SSR") 82-62 (1982). The claimant bears the burden of establishing her inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the 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 she is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of "any final decision of the Commissioner [] made after a hearing to which he was a party." 42 U.S.C. § 405(g). The scope of that federal court review is narrowly-tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to "try these cases de novo or resolve mere conflicts in the evidence." Vitek v. Finch, 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed "even should the court disagree with such decision." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
B. Analysis
1. Medical Opinions
Plaintiff argues the ALJ did not adequately consider the opinion evidence of record. [ECF No. 16 at 20-23]. The Commissioner maintains that the ALJ reasonably weighed the medical opinions. [ECF No. 17 at 6].
ALJs must consider all medical opinions of record. 20 C.F.R. § 404.1527(b). The regulations direct ALJs to accord controlling weight to treating physicians' medical opinions that are well-supported by medically-acceptable clinical and laboratory diagnostic techniques and that are not inconsistent with the other substantial evidence of record. 20 C.F.R. § 404.1527(c)(2). If a treating physician's opinion is not well-supported by medically-acceptable clinical and laboratory diagnostic techniques or if it is inconsistent with the other substantial evidence of record, the ALJ may decline to give it controlling weight. SSR 96-2p, 1996 WL 374188 at *2 (1996). However, if the ALJ issues a decision that is not fully favorable, his decision "must 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 reason for that weight." Id. at *5. The ALJ must "always give good reasons" for the weight he accords to a treating physician's opinion. 20 C.F.R. § 404.1527(c)(2).
Medical opinions may only be rendered by acceptable medical sources, which include licensed physicians, licensed or certified psychologists, licensed optometrists, licensed podiatrists, and qualified speech-language pathologists. SSR 06-03p; 20 C.F.R. § 404.1513(a) (effective Sept. 3, 2013 to Mar. 26, 2017).
If an ALJ declines to accord controlling weight to the treating physician's opinion, he must proceed to weigh the treating physician's opinion and all the other medical opinions of record based on the factors in 20 C.F.R. § 404.1527(c), which include (1) the examining relationship between the claimant and the medical provider; (2) the treatment relationship between the claimant and the medical provider, including the length of the treatment relationship and frequency of treatment and the nature and extent of the treatment relationship; (3) the supportability of the medical provider's opinion in his or her own treatment records; (4) the consistency of the medical opinion with other evidence in the record; and (5) the specialization of the medical provider offering the opinion. Id.
"Opinions on some issues . . . are not medical opinions . . . but are, instead, opinions on issues reserved to the Commissioner because they are administrative findings that are dispositive of a case; i.e., that would direct the determination or decision of disability." 20 C.F.R. § 404.1527(d). "Opinions that you are disabled" are among those reserved to the Commissioner. 20 C.F.R. § 404.1527(d)(1). The law does not give "any special significance to the source of an opinion on issues reserved to the Commissioner." 20 C.F.R. § 404.1527(d)(3). Nevertheless, "[t]he adjudicator is required to evaluate all evidence in the case record that may have a bearing on the determination of disability, including opinions from medical sources about issues reserved to the Commissioner." SSR 96-5p. "If the case record contains an opinion from a medical source on an issue reserved to the Commissioner, the adjudicator must evaluate all the evidence in the case record to determine the extent to which the opinion is supported by the record." Id.
Other sources, including nurse practitioners, physician assistants, licensed clinical social workers, naturopaths, chiropractors, audiologists, therapists, educational personnel, social welfare agency personnel, rehabilitation counselors, spouses, other relatives, friends, neighbors, clergy, and former coworkers and employers, may offer opinions, but their opinions are not medical opinions within the regulatory definition. See 20 C.F.R. § 404.1513(a), (d) (effective Sept. 3, 2013 to Mar. 26, 2017) and § 404.1527(a)(1). Although ALJs are not required to evaluate these sources' opinions as stringently as opinions from acceptable medical sources, they should be guided by the basic principles outlined in 20 C.F.R. § 404.1527 in considering them. SSR 06-03p.
In view of the foregoing authority, the undersigned has considered Plaintiff's specific allegations of error.
a. Dr. Nolan's Opinion
Dr. Nolan indicated as follows on January 14, 2015:
Pt went for an FCE and the report states that she does have a significant disability. I believe that she is not able to work at this time. She has significant difficulty with sitting for any length of time and cannot walk for any appreciable distance. She would not be fit for a work environment. I have discussed the results of the FCE with the pt and advised her of my recommendations related to her work status.Tr. at 716.
Plaintiff argues the ALJ erred in failing to discuss Dr. Nolan's opinion that she was unable to work. [ECF No. 16 at 20]. The Commissioner maintains that the ALJ's failure to address Dr. Nolan's opinion was harmless because Dr. Nolan provided an opinion on an issue reserved to the Commissioner and his opinion was cumulative of other opinion evidence that the ALJ explicitly rejected. [ECF No. 17 at 7-8].
A review of the record shows that the ALJ completely failed to address Dr. Nolan's opinion. The Fourth Circuit recently considered an ALJ's failure to evaluate a pain management specialist's opinion in Brown v. Commissioner of Social Security Administration, 873 F.3d 251, 271 (4th Cir. 2017). It explained that 20 C.F.R. § 404.1527(c) requires that an ALJ "'evaluate every medical opinion' presented to him, '[r]egardless of its source.'" Id.
The record demonstrates a lengthy treatment relationship between Plaintiff and Dr. Nolan. See Tr. at 627-717 and 719-86. Dr. Nolan's opinion that Plaintiff was disabled did not qualify as a medical opinion, but was, instead, an opinion on an issue reserved to the Commissioner. See 20 C.F.R. § 404.1527(d). However, Dr. Nolan's indications that Plaintiff had "significant difficulty with standing for any length of time" and could not "walk for any appreciable distance" addressed the severity Plaintiff's physical restrictions, making it a medical opinion. See 20 C.F.R. § 404.1527(a)(1) (providing that "[m]edical opinions are statements from acceptable medical sources that reflect judgment about the nature and severity of your impairment(s), including. . . your physical or mental restrictions").
The undersigned rejects the Commissioner's argument that the ALJ's error was harmless because he rejected the FCE results that Dr. Nolan had consulted in rendering his opinion. An ALJ's error is generally considered to be harmless where he "conducted the proper analysis in a comprehensive fashion," "cited substantial evidence to support his finding," and would have unquestionably "reached the same results notwithstanding his initial error." Mickles v. Shalala, 29 F.3d 918, 921 (4th Cir. 1994). The undersigned notes that Dr. Nolan did not merely relate the FCE results, but, instead, found the results to be consistent with his observations over the course of treatment. See Tr. at 716. Because Dr. Nolan was Plaintiff's treating physician, his medical opinion was presumptively entitled to controlling weight if it was well-supported by medically-acceptable clinical and laboratory diagnostic techniques and was not inconsistent with the other substantial evidence of record. See 20 C.F.R. § 404.1527(c)(2). While it might be reasonable to assume that the ALJ would not have found Dr. Nolan's opinion to be entitled to controlling weight based on the reasons he provided for rejecting the FCE results, it is not clear from the ALJ's decision that he evaluated and weighed the relevant factors in 20 C.F.R. § 404.1527(c), many of which were inapplicable to the opinion of the evaluator who conducted the FCE. Dr. Nolan's opinion would presumably be entitled to greater weight under the regulations based on his status as a physician, his treating relationship with Plaintiff, the supportability of his opinion in his records, and his pain management specialization. See 20 C.F.R. § 404.1527(c)(1), (2), (3), and (5). In light of the ALJ's failure to conduct the proper analysis and in the absence of substantial evidence to support a decision to reject Dr. Nolan's opinion, his error cannot be deemed harmless. Therefore, the undersigned recommends the court find the ALJ did not comply with the provisions of 20 C.F.R. § 404.1527 and SSR 96-2p in evaluating Dr. Nolan's opinion.
b. Dr. Patel's Opinion
On December 16, 2012, Dr. Patel indicated that Plaintiff would "ultimately be on light duty restrictions with sitting tolerance as tolerated, alternating sit/stand, and wt lifting of 15lbs or less." Tr. at 618.
Plaintiff maintains the ALJ failed to consider Dr. Patel's medical evaluation and opinion. [ECF No. 16 at 21]. The Commissioner claims the ALJ's failure to weigh Dr. Patel's opinion was harmless because he assessed a residual functional capacity ("RFC") that was generally consistent with Dr. Patel's opinion. [ECF No. 17 at 8-9]. She contends that the difference in lifting restrictions was inconsequential because Plaintiff had conceded that she was capable of lifting 20 pounds and the ALJ found she was capable of performing her sedentary PRW. Id. at 9.
The undersigned recommends the court find the ALJ did not comply with the provisions of 20 C.F.R. § 404.1527 in failing to consider Dr. Patel's opinion. Contrary to 20 C.F.R. § 404.1527(b)'s directive that ALJs consider all medical opinions of record, the ALJ did not acknowledge Dr. Patel's examination findings or his opinion. He also failed to evaluate the opinion based on the relevant criteria in 20 C.F.R. § 404.1527(c).
The undersigned is not persuaded by the Commissioner's argument that the ALJ's omission was harmless. Dr. Patel found that Plaintiff was restricted to lifting 15 pounds and would require the ability to alternate sitting and standing at her own discretion. Tr. at 618. The ALJ, on the other hand, assessed Plaintiff as having the RFC to perform the full range of light work, which included lifting up to 20 pounds, and declined to include an option to alternate sitting and standing at will. Tr. at 24. Although the record contains some evidence that suggests Plaintiff was capable of lifting 20 pounds, the fact remains that the ALJ did not include a provision for a sit-stand option in the RFC assessment. Because Dr. Patel assessed greater restrictions than the ALJ included in his RFC assessment, the undersigned recommends the court find his failure to address Dr. Patel's opinion was not harmless.
c. State Agency Consultant's Opinions
On September 15, 2014, state agency medical consultant Jean Smolka, M.D. ("Dr. Smolka"), reviewed the record and assessed the following physical RFC: occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds; stand and/or walk for a total of about six hours in an eight-hour workday; sit for a total of about six hours in an eight-hour workday; occasionally climbing ramps and stairs, stooping, kneeling, crouching, and crawling; frequently balancing; never climbing ladders, ropes, or scaffolds; occasionally reaching overhead with the bilateral upper extremities; and avoiding concentrated exposure to extreme heat and hazards. Tr. at 77-81. State agency medical consultant Lisa Mani, M.D. ("Dr. Mani"), assessed a similar physical RFC on January 2, 2015, but also found that Plaintiff should avoid concentrated exposure to extreme cold, wetness, and vibration. Tr. at 94-98
Plaintiff contends that the ALJ failed to explain his reasons for rejecting the state agency consultants' proposed restrictions. ECF No. 16 at 22, citing Tr. at 26. The Commissioner maintains that the ALJ afforded weight to the state agency consultants' opinions to the extent that they were consistent with the medical evidence. [ECF No. 17 at 9-10].
The ALJ found the state agency consultants' opinions to be "overly expansive in light of the objective medical evidence of record," but gave them some weight to the extent that they supported a finding that Plaintiff was "not disabled." Tr. at 26.
In finding Plaintiff capable of performing the full range of light work, the ALJ determined that she could climb ladders, ropes, scaffolds, ramps, and stairs; balance; stoop; kneel; crouch; crawl; reach overhead; and be exposed to extreme cold, extreme heat, hazards, wetness, and vibration on an unlimited basis. Compare Tr. at 24, with Tr. at 77-81 and 94-98. He ignored Dr. Mani's indication that Plaintiff's use of Flexeril, Lortab, and Skelaxin could impair her sensorium and affect her abilities to safely climb, balance, perform postural activities, and be exposed to workplace hazards. Tr. at 95 and 97. He did not address Dr. Mani's opinion that Plaintiff's history of anterior cervical discectomy and fusion would limit her to occasional overhead reaching with the bilateral upper extremities. Tr. at 96. He disregarded Dr. Mani's statement that Plaintiff's exposure to ambient conditions and vibration should be reduced based on her musculoskeletal and spinal symptoms. Tr. at 97.
Although the ALJ found the state agency consultants' opinions to be "overly expansive in light of the objective medical evidence," he did not explain his reasons for finding that the medical evidence did not support the additional restrictions. The undersigned has reviewed the ALJ's decision as a whole to determine if the ALJ addressed the proposed restrictions aside from the opinions. While he provided reasons for concluding that Plaintiff's allegations with respect to restricted abilities to balance, lift, carry, stand, walk, push, pull, bend, and stoop were not consistent with the evidence (Tr. at 25-27), he did not explain why the more conservative restrictions the state agency consultants identified were not supported by the record.
The undersigned's acknowledgment that the ALJ provided reasons for rejecting some of Plaintiff's allegations should not be interpreted as a finding that his reasons reflected a thorough assessment of the evidence.
Pursuant to 20 C.F.R. § 404.1527, ALJs are required address all medical opinions and evaluate them based on certain factors. This inherently necessitates that the ALJ provide a meaningful explanation for his decision to reject a medical opinion. Cf. Fox v. Colvin, 632 F. App'x 750, 756 (4th Cir. 2015), citing 20 C.F.R. § 404.1527(c)(2) and SSR 96-2p ("Here, the ALJ provided 'less weight' to Dr. Amstrong's opinion of Appellant's exertional and manipulative limitations because the ALJ believed these limitations were 'not well[-]supported by the medical record.' A.R. 22. Such a cursory and conclusory analysis does not provide any reason, let alone a 'good reason[ ]' why the ALJ concluded that Dr. Armstrong's opinion was inconsistent with other medical findings."). In the absence of a meaningful explanation for the ALJ's decision to reject the restrictions the state agency consultants' identified, the undersigned recommends the court find that substantial evidence does not support his evaluation of their opinions.
The instant case differs from Fox in that the court was considering an ALJ's failure to provide "good reasons" for rejecting a treating physician's opinion as opposed to a medical opinion of a non-treating, non-examining source. However, ALJs must provide reasons for rejecting all medical opinions. See generally 20 C.F.R. § 404.1527.
d. Results of FCE
Plaintiff participated in an FCE on November 20, 2014. Tr. at 721-36. A.H. "Trey" Ginn, III, MS, CECS, CSFA ("Mr. Ginn"), indicated the results were consistent with an inability to work as a result of poor endurance and inability to sit, stand, or walk for any extended period of time. Tr. at 721. Plaintiff was able to lift up to 25 pounds occasionally, 13 pounds frequently, and 5 pounds constantly, but could not perform all types of lifting exercises. Tr. at 721. She could perform occasional stair climbing and frequent crawling, but was unable to bend, squat, or kneel. Id. She demonstrated abilities to occasionally sit, stand, and walk and to frequently reach forward and overhead. Id. She could operate bilateral arm and leg controls at the light exertional level and could engage in bilateral fine hand coordination. Id.
Plaintiff claims the ALJ did not provide sufficient reasons to support his decision to accord little weight to the FCE. [ECF No. 16 at 23]. The Commissioner maintains that the ALJ provided good reasons for giving little weight to the FCE results. [ECF No. 17 at 10].
The ALJ considered, but gave little weight to Mr. Ginn's findings. Tr. at 26. He noted that Plaintiff's score of 20 out of 25 on the validity criteria was "on the low end of valid." Id. He found Mr. Ginn's findings that Plaintiff could not bend and could sit, stand, and walk only occasionally to be inconsistent with evidence that she could crawl and sit for a total of 13 hours per day and for an hour at a time. Id.
The record does not support the ALJ's assessment that Plaintiff's score on the validity criteria was "on the low end of valid." Mr. Ginn stated Plaintiff had "passed 20/25 validity criteria indicating good effort and valid test results." Tr. at 721. This equated to a validity score of 80 percent. Tr. at 736. Mr. Ginn indicated that results of testing were deemed valid if an individual passed at least 76 percent of the validity criteria and were borderline valid if she passed 70-75 percent of the validity criteria. Tr. at 735. He noted Plaintiff "was consistent in her presentation throughout the testing" and "did not demonstrate any symptom/disability exaggeration behavior." Tr. at 721. Mr. Ginn's opinion that Plaintiff was unable to bend was based on observations of markedly decreased ROM, end-range stretch, and a reported pain level of ten when she attempted time-controlled forward repetitive bending exercises. Tr. at 726. Although the ALJ considered inconsistent Mr. Ginn's findings that Plaintiff could not bend, but could frequently crawl, he neglected evidence of validity in that Plaintiff's movement patterns did not change by distraction during the repetitive motion tests. See Tr. at 726-27.
The undersigned finds unpersuasive the ALJ's statement that "[i]t is unclear how the claimant's ability to crawl could be tested if she could not first bend" (Tr. at 26) because the ability to repetitively bend forward at the waist differs from the ability to crawl.
Despite the ALJ's failure to adequately address evidence that suggested results of the FCE were valid, he provided a cogent explanation for finding Mr. Ginn's assessment that Plaintiff was capable of only occasional sitting to be inconsistent with her self-reported abilities to sit for 13 hours per day and to sit in a car for an hour at a time. The report provides that "[t]he amount of time spent Standing, Walking, and Sitting is obtained from the Activity Profile and the amount of time the patient actually performs these activities throughout the FCE." Tr. at 730. Although the undersigned concedes that Plaintiff's self-reported ability to sit for 13 hours during a 24-hour period likely represents some time sitting in a reclined, as opposed to an upright position, Mr. Ginn did not explain how this might account for the perceived inconsistency. In fact, he did not acknowledge the inconsistency between Plaintiff's self-reported abilities and his findings. He observed Plaintiff to sit for an hour-and-a-half, stand for an hour, and walk for an hour during the FCE and extrapolated from his observations that Plaintiff was able to engage in sitting, standing, and walking each on an occasional basis. Tr. at 731. However, he did not specify whether Plaintiff's pain necessitated changes of position or whether her time spent sitting, standing, and walking represented her maximum sustained abilities. In the absence of a more thorough explanation from Mr. Ginn, the ALJ was not wrong to cite the discrepancies between Mr. Ginn's opinion and Plaintiff's self-reported abilities.
Nevertheless, in light of the undersigned's findings with respect to the other opinion evidence of record, the ALJ should address the consistency of Mr. Ginn's opinion with the other evidence of record on remand.
2. Severity of Coccydynia
Plaintiff argues that the evidence supported a finding that coccydynia imposed significant functional limitations and that the ALJ erred in failing to consider it to be a severe impairment. [ECF No. 16 at 25-26]. The Commissioner argues Plaintiff was not prejudiced by the ALJ's failure to assess coccydynia as a severe impairment at step two because he proceeded to subsequent steps in the evaluation process and considered Plaintiff's severe and non-severe impairments in assessing her RFC. [ECF No. 17 at 11-13].
If the evidence establishes the existence of a medically-determinable impairment, the ALJ should assess its severity. See 20 C.F.R. § 404.1520(a)(4)(ii) ("At the second step, we consider the severity of your impairment(s). If you do not have a severe medically determinable physical or mental impairment that meets the duration requirement in § 404.1509, or a combination of impairments that is severe and meets the duration requirement, we will find that you are not disabled."). A severe impairment "significantly limits [a claimant's] physical or mental ability to do basic work activities." 20 C.F.R. § 404.1520(c); SSR 96-3p. A non-severe impairment "must be a slight abnormality (or a combination of slight abnormalities) that has no more than a minimal effect on the ability to do basic work activities." SSR 96-3p, citing SSR 85-28; see also 20 C.F.R. § 404.1521(a) (effective to March 26, 2017) ("An impairment or combination of impairments is not severe if it does not significantly limit your physical or mental ability to do basic work activities.").
Basic work activities include physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; capacities for seeing, hearing, and speaking; understanding, carrying out, and remembering simple instructions; use of judgment; responding appropriately to supervision, coworkers, and usual work situations; and dealing with changes in a routine work setting. 20 C.F.R. § 404.1521(b) and § 416.921(b) (effective to March 26, 2017).
The ALJ's recognition of a single severe impairment at step two ensures that she will progress to step three. See Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008) ("[A]ny error here became harmless when the ALJ reached the proper conclusion that [claimant] could not be denied benefits conclusively at step two and proceeded to the next step of the evaluation sequence."). Therefore, this court has found no reversible error where the ALJ neglected to find an impairment to be severe at step two provided that she considered that impairment in subsequent steps. See Washington v. Astrue, 698 F. Supp. 2d 562, 580 (D.S.C. 2010) (collecting cases); Singleton v. Astrue, No. 9:08-1982-CMC, 2009 WL 1942191, at *3 (D.S.C. July 2, 2009).
The ALJ found that Plaintiff's severe impairments included obesity, degenerative disc disease of the cervical spine (status post-fusion), and degenerative disc disease of the lumbar spine. Tr. at 23. Despite Plaintiff's frequent complaints of sacrococcygeal pain and indications that the pain prevented her from sitting for extended periods, the ALJ did not assess coccydynia to be a severe impairment. Tr. at 471, 573, 613, 634, 635, 640, 641, 643, 645, 647, 649, 651, 657, 663, 667, 684, 694, 699, 705, 708, 711, 738, 748, 751, 765, 771, and 784. Because the record supports a finding that coccydynia imposed more than minimal functional limitations, the ALJ erred in finding it was not severe. See 20 C.F.R. § 404.1520(c) and § 404.1521(a) (effective to March 26, 2017); SSR 96-3p.
The undersigned has considered whether the ALJ's failure to consider coccydynia to be severe at step two was remedied by his subsequent consideration of the impairment. The ALJ noted that Plaintiff had reported an ability to sit for 30 minutes at a time (Tr. at 24) and had complained of "lower sacral region pain" to Dr. Wildstein (Tr. at 26). He stated in explaining the RFC assessment that Plaintiff had "reported excellent relief of her sacrococcygeal disorder with injections." Tr. at 25.
The ALJ's consideration of coccydynia in assessing Plaintiff's RFC is insufficient in that it does not reflect a thorough review of the evidence. See 20 C.F.R. § 404.1545(a) (explaining that the RFC assessment must be based on all the evidence in the case record and should account for all of the claimant's medically-determinable impairments). Although the ALJ is correct that Plaintiff reported some relief from coccygeal injections, his conclusion that the injections completely resolved Plaintiff's pain is not supported by the record. Dr. Nolan administered the injections on multiple occasions. Tr. at 631-32, 638-39, 645-46, 651-52, 683, and 695-96. Plaintiff sometimes reported that the injections were ineffective and complained of increased pain after their effects wore off. Tr. at 634, 640, 641, 643, 647, 651, 663, 667, 683, 694, 708, 711, 739, 751, 765, 771, and 784. In Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015), the court held that "remand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review." Based on the foregoing, the undersigned recommends the court find that substantial evidence does not support the ALJ's RFC finding because he did not assess the functional effects of coccydynia.
3. Additional Allegations of Error
Plaintiff argues the ALJ did not follow the provisions of SSR 82-62 in evaluating the specific requirements of her PRW or considering her stated reasons for being unable to perform it. [ECF No. 16 at 29-30]. The Commissioner maintains that the ALJ reasonably relied on the VE's testimony to support a finding that Plaintiff was capable of performing her PRW. [ECF No. 17 at 15-16].
Plaintiff also claims the ALJ did not make specific findings in evaluating her subjective complaints of symptoms and ignored evidence of their consistency. [ECF No. 16 at 30-31]. The Commissioner contends that the ALJ considered the clinical evidence of record, improvement in Plaintiff's symptoms with treatment, and her ability to perform ADLs in discounting Plaintiff's subjective complaints. [ECF No. 17 at 14-15].
In light of the above recommendations, the undersigned declines to address Plaintiff's additional allegations of error. However, should the ALJ find on remand that Plaintiff is capable of performing her PRW, he should pay particular attention to the following language in SSR 82-62:
Determination of the claimant's ability to do PRW requires a careful appraisal of (1) the individual's statements as to which past work requirements can no longer be met and the reason(s) for his or her inability to meet those requirements; (2) medical evidence establishing how the impairment limits ability to meet the physical and mental demands of the work; and (3) in some cases, supplementary or corroborative information from other sources such as employers, the Dictionary of Occupational Titles, etc., on the requirements of the work as generally performed in the economy.In evaluating Plaintiff's subjective complaints of symptoms and limitations, the ALJ should specifically explain which of the claimant's symptoms he found consistent or inconsistent with the evidence and how the evaluation of the claimant's symptoms led to his conclusion regarding their intensity, persistence, and limiting effects. SSR 16-3p. 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 as a matter of fact and law. Based on the foregoing, the court cannot determine that the Commissioner's decision is supported by substantial evidence. Therefore, the undersigned recommends, 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 under sentence four of 42 U.S.C. § 405(g), that this matter be reversed and remanded for further administrative proceedings.
IT IS SO RECOMMENDED. January 23, 2018
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).