Opinion
C/A No.: 1:20-3206-CMC-SVH
06-24-2021
Lisa T., Plaintiff, v. Andrew M. Saul, 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 he applied the proper legal standards. For the reasons that follow, the undersigned recommends the Commissioner's decision be reversed and remanded for further proceedings as set forth herein. I. Relevant Background
A. Procedural History
On August 21, 2018, Plaintiff protectively filed an application for DIB in which she alleged her disability began on February 21, 2018. Tr. at 77, 167-68. Her application was denied initially and upon reconsideration. Tr. at 97-100, 104-10. On November 13, 2019, Plaintiff had a hearing before Administrative Law Judge ("ALJ") James Cumbie. Tr. at 29-63 (Hr'g Tr.). The ALJ issued an unfavorable decision on January 7, 2020, finding Plaintiff was not disabled within the meaning of the Act. Tr. at 9-28. 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 1-6. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on September 8, 2020. [ECF No. 1].
B. Plaintiff's Background and Medical History
1. Background
Plaintiff was 40 years old at the time of the hearing. Tr. at 37. She completed two years of college. Tr. at 194. Her past relevant work ("PRW") was as a certified medical assistant ("CMA") and a pelvic health specialist. Tr. at 180. She alleges she has been unable to work since February 21, 2018. Tr. at 167.
2. Medical History
Plaintiff presented to rheumatologist Richard Silver, M.D. ("Dr. Silver"), for evaluation of right ankle pain on February 16, 2016. Tr. at 336. She described a traumatic injury in 2008 that was followed by sural neurectomy and posterior ankle/subtalar debridement in 2009, posterolateral mass removal in 2014, and cyst removal and peroneus longus tendon repair in May 2015. Id. She indicated she had been treated by multiple pain management physicians without benefit or pain relief. Id. She described a tingling, electric sensation to her right foot and ankle, but denied weakness and numbness. Tr. at 338. Dr. Silver noted surgical scars, lateral right ankle slightly larger than the left, significant tenderness to palpation ("TTP") and flexing of the right ankle, and no swelling, warmth, or tenderness to the distal interphalangeal ("DIP") joints, posterior interphalangeal ("PIP") joints, metacarpophalangeal ("MCP") joints, wrists, elbows, shoulders, knees, or metatarsophalangeal ("MTP") joints. Tr. at 339. Lab studies were normal. Id. X-rays showed a normal right ankle with a small plantar calcaneal spur. Id. A bone scan showed no abnormal uptake within the right ankle. Id. Dr. Silver assessed chronic regional pain syndrome ("CRPS")/reflex sympathetic dystrophy ("RSD") of the right ankle. Id.
On March 8, 2016, Plaintiff presented to pain management specialist Ryan Harrison Nobles, M.D. ("Dr. Nobles"), for discussion of available treatment options for chronic right ankle pain. Tr. at 328. She reported having sustained a traumatic injury to her right ankle when a fire extinguisher fell on it five years prior. Id. She described a painful pinching sensation just lateral to her right lateral malleolus that was worsened by driving and weight bearing. Id. She indicated she had obtained no relief, despite having undergone three surgeries; being treated by four pain management physicians who had administered sympathetic blocks, epidural steroid injections ("ESIs"), popliteal nerve blocks, and local infiltration of the area; and having been prescribed Gabapentin, Lyrica, opioids, nonsteroidal anti-inflammatory drugs ("NSAIDs"), and muscle relaxants. Id. She said she had undergone placement of a spinal cord stimulator ("SCS"), but its placement had been complicated by overstimulation of the groin and poor capture of the right ankle. Id. She reported a history of supraventricular tachycardia ("SVT") and seizures. Tr. at 329. Dr. Nobles observed Plaintiff's right ankle to be markedly tender. Id. He observed a large, well-healed scar over Plaintiff's lateral right ankle and mild edema without erythema localized to the lateral malleolus. Id. He indicated Plaintiff had 5/5 strength throughout her bilateral lower extremities. Id. Dr. Nobles discussed a Boston Scientific SCS and a dorsal root ganglion ("DRG") SCS as options, and Plaintiff opted to proceed with the DRG SCS. Tr. at 330.
Dr. Nobles placed a trial DRG SCS on July 14, 2016. Tr. at 322-25.
On September 13, 2016, Dr. Nobles implanted a DRG SCS for chronic pain syndrome and neuropathic pain of Plaintiff's right ankle. Tr. at 315.
Plaintiff returned to Dr. Nobles for post-surgical follow up on November 28, 2016. Tr. at 314. Dr. Nobles cleaned Plaintiff's stimulating anchor and battery sites and removed the surgical staples. Tr. at 315. He assessed chronic pain syndrome, neuropathic right ankle pain, and successful SCS/DRG implant. Id.
On January 10, 2017, Plaintiff presented to Dr. Nobles for revision of the DRG implant due to dysfunction. Tr. at 308-12
Plaintiff followed up on January 17, 2017, and reported 75% relief from the DRG implant revision. Tr. at 308. Dr. Nobles removed the dressing and cleaned the anchor and battery sites. Id. He assessed chronic pain syndrome, type I CRPS of the right lower extremity ("RLE") with neuropathic pain, SCS dysfunction, and successful SCS revision and implant. Id.
On January 24, 2017, Plaintiff reported 75% pain relief from the SCS and denied complications. Tr. at 307. Dr. Nobles removed the dressing over the stimulator anchor and battery sites, cleaned the areas, removed the staples, cleaned the area again, and applied a sterile bandage. Id. He assessed successful SCS revision following dysfunction. Id.
On February 3, 2017, Plaintiff complained of persistent pain at the stimulator battery site and sought the device's removal. Tr. at 307. She indicated the battery prevented her from sitting comfortably. Id. Dr. Nobles confirmed the battery was in the appropriate position. Id. He assessed SCS dysfunction, scheduled removal of the SCS, and refilled Plaintiff's prescription for Norco. Id.
On February 22, 2017, Dr. Nobles removed the DRG SCS. Tr. at 372-76.
Plaintiff returned for follow up on March 8, 2017. Tr. at 372. Dr. Nobles removed the dressing, cleaned the stimulator anchor and battery sites, removed the staples, and bandaged the area. Id.
On April 28, 2017, Plaintiff complained of worsening lower back pain and significant muscle spasms. Tr. at 372. She indicated Flexeril, Norco, and NSAIDs provided some relief. Id. Dr. Nobles observed a well-healed surgical scar with no signs of infection on the left side of Plaintiff's lower back. Id. He noted TTP around the surgical site and indicated an ultrasound revealed a small pocket of homogeneous fluid just below the surgical site. Id. He aspirated the fluid and instructed Plaintiff to monitor the site for possible infection. Id. He refilled Norco and instructed Plaintiff to continue her pain management regimen. Id.
Plaintiff presented to neurologist Ernesto Potes, M.D. ("Dr. Potes"), on May 5, 2017. Tr. at 392. She reported a history of common migraine with occasional headaches that responded to over-the-counter analgesics and being seizure-free despite a history of generalized convulsive seizures. Id. Dr. Potes recorded normal findings on physical exam. Tr. at 393. He continued Plaintiff's prescriptions for Ativan, Atenolol, and Lamictal. Id.
On September 20, 2017, Plaintiff complained her headaches had increased and were occurring two to three times per week. Tr. at 390. She also endorsed increased stressors. Id. Dr. Potes prescribed Trazodone 50 mg at bedtime for two weeks and then 100 mg at bedtime for sleep and management of stress/anxiety. Tr. at 391. He continued Plaintiff's prescriptions for Atenolol, Ativan, and Lamictal and prescribed Maxalt 10 mg for migraines. Id.
Plaintiff presented to family physician Preston Eddie Bishop, M.D. ("Dr. Bishop"), to establish treatment on January 4, 2018. Tr. at 440-42. She reported a history of insomnia, probable anxiety, SVT, seizure disorder, and RSD. Tr. at 440. She complained of daily pain in her left lower back that radiated down the left buttock with onset a few months prior. Id. She suspected it might be related to the DRG SCS implant and indicated Gabapentin had been ineffective in treating it. Id. Dr. Bishop observed TTP in Plaintiff's left lumbar paraspinous region and weakly positive straight-leg raising ("SLR") test on the left, but normal gait, no motor or sensory deficits, no soft tissue swelling, and no mass of the left lumbar paraspinous region over the area of a scar. Tr. at 441. He assessed SVT, epilepsy, chronic left- sided low back pain with left sciatica, and anxiety. Id. He ordered magnetic resonance imaging ("MRI") of Plaintiff's lumbar spine and lab studies and recommended Plaintiff take two Gabapentin at night and use topical Diclofenac gel on the area of pain. Id.
On January 17, 2018, an MRI of Plaintiff's lumbar spine showed a broad-based central and left paracentral disc protrusion/herniation at L5-S1 abutting the descending left S1 nerve root, as well as reactive endplate changes and disc desiccation at that level. Tr. at 405. It also showed partial disc desiccation and a small annular tear without herniation or stenosis at the L4-5 level. Id.
Plaintiff presented to orthopedic surgeon Chi Lim, M.D. ("Dr. Lim"), on February 15, 2018, for evaluation of lumbar radiculopathy. Tr. at 455. She complained her left leg pain caused her difficulty with ambulation and described pain down to her toes. Id. She said she had unsuccessfully tried two SCSs and had been diagnosed with CRPS in her right leg. Id. She rated her pain as a seven to eight and indicated coughing and bending forward made it worse. Id. Dr. Lim noted 4/5 left extensor hallucis longus ("EHL") strength and otherwise 5/5 strength in the bilateral lower extremities. Tr. at 458. He reviewed the MRI and x-rays of Plaintiff's lumbar spine and assessed lumbar disc herniation and prolapsed lumbar intervertebral disc. Id. He recommended Plaintiff proceed with L5-S1 microdiscectomy. Id.
Plaintiff presented to neurosurgeon Christopher Chittum, M.D. ("Dr. Chittum"), for a second opinion on February 20, 2018. Tr. at 399. She described a multi-year history of mild, chronic back pain that had become severe and started radiating down her left leg and into her foot the prior November or December. Id. She rated her pain as a seven and endorsed give-way weakness, numbness and weakness in her foot, and having nearly fallen. Id. She requested to proceed with surgery, as she had previously tried acupuncture, chiropractic treatment, and NSAIDs without relief. Id. She indicated she had experienced episodes of bladder incontinence. Tr. at 398. Dr. Chittum observed Plaintiff to have antalgic gait and 5/5 lower extremity strength, except for 4/5 EHL strength. Tr. at 397. He stated a review of Plaintiff's MRI showed a large L5-S1 central to left-sided herniated disc that was compressing the thecal sac and exiting nerve root, along with significant degenerative disc disease ("DDD") with modic endplate changes in the bone. Id. He assessed left-sided lumbar radiculopathy at L5-S1 and noted a secondary diagnosis of RSD in the right foot. Tr. at 398. He explained that microdiscectomy might not relieve all Plaintiff's symptoms. Id. Plaintiff opted to proceed with surgery. Id.
On March 5, 2018, Dr. Chittum performed microdiscectomy at Plaintiff's L5-S1 level. Tr. at 403-04, 415-17.
Plaintiff followed up with Dr. Potes on March 16, 2018. Tr at 386. She endorsed chronic migraines and epilepsy and complained of pain in her left sciatic nerve distribution and cramping pain in her leg and thigh that worsened at night. Id. She indicated opioids and a muscle relaxer had not provided relief and denied using the opioids. Id. Dr. Potes observed Plaintiff to demonstrate mildly antalgic gait and decreased weight-bearing in the left lower extremity ("LLE"). Tr. at 387. He assessed Plaintiff's seizures as well-controlled and her migraines as fairly well-controlled. Id. He continued Lamictal and Ativan for seizures, Atenolol and Maxalt for migraines, and Zanaflex for muscle spasms. Id. He suggested Plaintiff increase her Neurontin dose from two 300 mg tablets at bedtime to one 300 mg tablet in the morning and two at night. Id.
Plaintiff reported only minimal improvement during surgical follow up on March 20, 2018. Tr. at 467. She said she had not taken a significant amount of her pain medication because she did not want to use it, if possible. Id. She noted she was using Tylenol or NSAIDs and Robaxin, but that Robaxin was largely ineffective in treating muscle spasms. Id. She indicated Dr. Potes had prescribed Zanaflex 4 mg, which seemed to be more effective. Id. She rated her pain as a four. Id. Dr. Chittum described Plaintiff as appearing somewhat uncomfortable and frequently changing her position during the visit. Tr. at 470. He noted Plaintiff's lumbar incision was well- healed, but she continued to demonstrate TTP about the left lower lumbar paraspinous muscles and extending down the left sciatic notch region. Id. He stated left-sided SLR continued to increase her discomfort, and she continued to experience left L5 and S1 pattern radicular symptoms, 4-/5 dorsiflexion in the LLE, and 4+/5 strength with plantar flexion. Id. He indicated Plaintiff had mild residual hypesthesia with L5 greater than S1 on the left and had deliberate and slightly antalgic gait to the left. Id. Dr. Chittum encouraged Plaintiff to use Hydrocodone, if needed, but she was reluctant to do so. Id. He prescribed a Medrol Dosepak to help with postoperative neural edema or swelling and instructed Plaintiff to stop Robaxin and continue Zanaflex. Id. He referred Plaintiff to physical therapy and indicated she should remain out of work pending a four-week follow up, given the physical requirements of her job. Id.
Plaintiff presented for a physical therapy evaluation on April 9, 2018. Tr. at 472. She had tenderness in her left iliolumbar region and demonstrated normal lower quadrant strength, except for 4-/5 L2 hip flexors. Id. She demonstrated antalgic gait and less flexibility in the left piriformis, compared to the right. Tr. at 473. Physical therapist Constance Giles recommended two sessions per week for six weeks. Tr. at 474.
Plaintiff returned to physical therapy on April 11, 16, and 18, 2018, and reported increased pain following each session. Tr. at 476-81.
On April 19, 2018, Plaintiff continued to endorse minimal improvement from surgery. Tr. at 482. She described pain in her low back, left posterior thigh, and occasionally in her left posterior calf. Id. She indicated she had been compliant with post-operative instructions and had participated in physical therapy without benefit. Id. She rated her pain as a four. Id. Dr. Chittum observed Plaintiff to appear somewhat uncomfortable, to change positions frequently during the visit to try to decrease her discomfort, to exhibit left L5 and S1 pattern radicular symptoms, to have 4-/5 strength with dorsiflexion and 4+/5 strength with plantar flexion in the LLE, to have residual hypesthesia with L5 greater than S1 on the left, and to demonstrate deliberate and slightly antalgic gait to the left. Tr. at 485. He noted x-rays revealed significant degeneration at L5-S1 with minimal disc space present, but no instability. Id. He ordered a lumbar corset and a muscle stimulator. Id. He indicated Plaintiff could return to work, as there were no structural concerns, but that it might increase her pain. Id.
Plaintiff followed up in Dr. Chittum's office on May 31, 2018. Tr. at 486. She indicated her pain had initially improved following surgery, but had returned and was severe and debilitating. Id. She rated her pain as a five, reported physical therapy had been effective, and noted she was unable to work. Id. She described pain primarily in her left posterior leg. Id. Nurse Practitioner Anna Brown ("NP Brown") observed Plaintiff to appear uncomfortable and to frequently change positions to decrease her discomfort during the exam. Tr. at 489. She noted Plaintiff was TTP about the left lower lumbar paraspinous muscle and into the left sciatic notch region. Id. She indicated Plaintiff's discomfort increased with left-sided SLR test. Id. NP Brown recorded Plaintiff continued to exhibit left L5 and S1 pattern radicular symptoms and had mild residual hypesthesia. Id. She noted plaintiff had deliberate, but slightly antalgic gait to the left. Id. She ordered a new lumbar MRI. Id.
On June 8, 2018, an MRI of Plaintiff's lumbar spine showed mild DDD at L4-5 and post-operative changes on the left at L5-S1. Tr. at 490-91.
On June 19, 2018, Plaintiff complained of increased LLE pain that was severe and debilitating. Tr. at 492. She indicated pain in her low back and left posterior leg prevented her from working. Id. She noted she had completed physical therapy without improvement. Id. She rated her pain as a five. Id. Dr. Chittum noted left posterior leg pain, 4-/5 left foot dorsiflexion, and 4+/5 left foot plantar flexion. Tr. at 495. He indicated lumbar x-rays showed significant degeneration at L5-S1 with minimal disc space present and a lumbar MRI revealed postoperative changes on the left at L5-S1 with residual foraminal stenosis due to recurrent disc and significant facet gapping. Id. He assessed lower back pain, lumbar radiculopathy, and lumbar stenosis. Id. Given the amount of facet gapping and residual neural foraminal stenosis on the left at L5-S1, Dr. Chittum recommended L5-S1 posterior lumbar interbody fusion ("PLIF"). Id. Plaintiff agreed to proceed with another surgery. Id.
Plaintiff endorsed worsening back pain on July 6, 2018. Tr. at 383. She denied seizures and indicated her headaches were variable in frequency and worsened by stress. Id. Dr. Potes refilled Plaintiff's medications and indicated he was reluctant to make medication changes until her back pain was resolved. Tr. at 384.
Plaintiff returned to Dr. Bishop for primary care follow up on July 9, 2018. Tr. at 443-45. She indicated she was stable on medications for chronic anxiety and gastroesophageal reflux disease ("GERD") without side effects. Tr. at 443. Dr. Bishop recorded normal findings on physical exam. Tr. at 444. He assessed anxiety, GERD, SVT, and seizure disorder and refilled prescriptions for Effexor XR 150 mg and Protonix 40 mg. Id.
Occupational therapist Ashley Brooks fitted Plaintiff with a California lumbar sacral orthosis ("LSO") brace on July 9, 2018. Tr. at 497.
Plaintiff was hospitalized at Spartanburg Regional Healthcare System ("SRHS") from July 16 to July 18, 2018. Tr. at 417, 421-22. Dr. Chittum performed L5-S1 PLIF. Tr. at 498-99.
Plaintiff presented to Dr. Chittum for post-surgical follow up on July 31, 2018. Tr. at 501. She denied complications and reported mild pain and improved leg symptoms. Id. She indicated she was using her LSO brace and a cooling unit and no longer required pain medication. Id. Dr. Chittum noted Plaintiff's incision was clean and well-healed. Tr. at 504. He instructed Plaintiff continue to use the LSO brace and indicated he would refer her to physical therapy upon follow up in four weeks. Id.
Plaintiff attended physical therapy at Austin Rehab on August 7, 9, 15, 17, 20, and 23, 2018. Tr. at 433-38. On August 17, 2018, physical therapist Owen Woolever noted Plaintiff had 3+/5 RLE strength on manual muscle testing due to RSD, 4-/5 LLE quad strength, and 4/5 hip flexion. Tr. at 438.
On August 28, 2018, Plaintiff reported gradual progress from surgery until 10 days prior, when she noticed increased pain in her left low back. Tr. at 505. She was unaware of a specific precipitating event, but noted she had a "bad cough" at the time. Id. She indicated physical therapy was providing no benefit and recurrent left-sided low back pain was making it difficult for her to perform activities of daily living ("ADLs") and rest. Id. She denied recurrent lower extremity pain. Id. She rated her pain as a four. Id. Dr. Chittum observed Plaintiff to be tearful and to insist on standing throughout the exam due to low back pain. Tr. at 508. He noted Plaintiff was TTP about the lower lumbar paraspinous muscles, extending down to the superior aspect of the left sacroiliac ("SI") joint, but not over the SI joint itself, and had restricted ROM of the low back due to pain. Id. He indicated Plaintiff had no lower extremity motor or sensory deficits and negative SLR tests bilaterally. Id. He assessed post-PLIF at L5-S1 with recent recurrent left-sided low back pain. Id. He stated that Plaintiff had stopped taking pain medication one week following surgery and only rarely used a muscle relaxant. Id. He indicated Plaintiff might have developed an inflammatory-type reaction in the left lower lumbar region. Id. He prescribed a Medrol Dosepak and instructed Plaintiff to restart Zanaflex at least twice a day and to take half of a Percocet 10 mg tablet intermittently. Id. He indicated Plaintiff should hold off on physical therapy. Id.
On September 11, 2018, Plaintiff complained of intermittent episodes of dizziness that had occurred occasionally over the prior three weeks. Tr. at 446. She described feeling suddenly lightheaded, weak, and dizzy and noted it typically occurred while she was lying down. Id. Dr. Bishop recorded normal findings on physical exam. Tr. at 447. He instructed Plaintiff to check her heartrate and blood pressure the next time she experienced an episode and to stay well-hydrated. Id.
On September 18, 2018, Plaintiff complained of worsened pain in her left low back and the left posterior leg that had not responded to reduced activity, a muscle relaxer, or a Medrol Dosepak. Tr. at 510. She also endorsed some right-sided low back pain. Id. She reported using a limited amount of Oxycodone and taking her muscle relaxant and steroids as recommended. Id. Dr. Chittum observed Plaintiff to be wearing a back brace, to appear uncomfortable, and to stand throughout the visit. Tr. at 513. Plaintiff stated sitting increased her discomfort. Id. Dr. Chittum noted Plaintiff was TTP about the bilateral lumbar paraspinous muscles, most pronounced on the left; had mildly positive SLR test; and demonstrated a more antalgic gait. Id. He did not appreciate any overt motor or sensory deficits. Id. He referred Plaintiff for an updated MRI, given concerns about her surgical site on the left. Id.
On September 24, 2018, an MRI of Plaintiff's lumbar spine showed post-operative changes at the L5-S1 level, an enhancing epidural scar, and no recurrent disc herniation or significant stenosis. Tr. at 524-25.
On October 8, 2018, Jeffrey P. Smith, M.D. ("Dr. Smith"), administered a transforaminal ESI at Plaintiff's L5-S1 level. Tr. at 526.
On October 24, 2018, state agency psychological consultant Larry Clanton, Ph.D. ("Dr. Clanton"), reviewed the record and considered Listing 12.06 for anxiety and obsessive-compulsive disorders. Tr. at 68-69. He assessed Plaintiff's mental impairments as non-severe, given his findings that she had only mild limitations in her ability to adapt or manage oneself and no limitations in her abilities to understand, remember, or apply information; interact with others; and cooperate, persist, or maintain pace. Id.
On November 6, 2018, Plaintiff complained of significant low back pain and continued to wear a brace. Tr. at 574. She rated her pain as a four. Id. Dr. Chittum observed Plaintiff to appear uncomfortable, to stand during the visit, and to demonstrate TTP about the bilateral lumbar paraspinous muscles, most pronounced on the left side, extending down to the sciatic notch region. Tr. at 577. He noted mildly positive SLR and increasing antalgic gait, but no overt motor or sensory deficits. Id. He indicated scar tissue was present on the MRI. Id. He scheduled Plaintiff for another left L5-S1 transforaminal ESI, as she had reported 40% relief in her leg symptoms following the prior ESI. Id. He informed Plaintiff she could begin weaning herself off use of the LSO brace. Id.
On November 20, 2018, state agency medical consultant Jean Smolka, M.D. ("Dr. Smolka"), reviewed the record and assessed Plaintiff's physical residual functional capacity ("RFC") as follows: occasionally lift and/or carry 10 pounds; frequently lift and/or carry less than 10 pounds; stand and/or walk for a total of about four hours in an eight-hour workday; sit for a total of about six hour in an eight-hour workday; occasionally operate controls with the RLE; occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs; never climb ladders, ropes, or scaffolds; avoid concentrated exposure to extreme heat; and avoid all exposure to hazards. Tr. at 70-74.
Plaintiff followed up with Dr. Potes for treatment of chronic migraines and epilepsy on December 4, 2018. Tr. at 541. She reported being seizure-free and experiencing approximately four headaches per month. Id. Dr. Potes recorded normal findings on exam. Tr. at 542. He noted Plaintiff was doing well, refilled her medications, and referred her to Bogdan Gheorghiu, M.D. ("Dr. Gheorghiu"), for continued neurological care, as he planned to retire on December 31. Id.
On December 28, 2018, Plaintiff reported no change in symptoms following the ESI. Tr. at 545. She rated her pain as a five and endorsed increased discomfort while sitting. Tr. at 545, 548. Nurse practitioner Jennifer F. Turner ("NP Turner") observed Plaintiff to appear uncomfortable and to stand during the visit. Tr. at 548. She noted Plaintiff was TTP about the lumbar paraspinous muscles bilaterally, most pronounced on the left side and extending down to the sciatic notch region. Id. She indicated an SLR test was mildly positive and Plaintiff's gait was more antalgic, but she had no overt motor or sensory deficits. Id. NP Turner assessed lumbar radiculopathy and low back pain and referred Plaintiff to a pain management specialist for possible injections and an SCS. Id.
Plaintiff presented to Dr. Smith for a pain management consultation on February 12, 2019. Tr. at 549. She complained of pain localized to her lower back that she rated as a seven, with left posterior radicular symptoms that extended to knee-level. Id. Dr. Smith indicated Plaintiff did not have a lot of weakness in her left leg and was not taking a lot of medication. Id. He observed Plaintiff to demonstrate normal gait. Tr. at 552. He noted TTP over Plaintiff's lower lumbar facets and paraspinals and the left posterior superior iliac spine and decreased sensation to light touch over her posterior left leg and S1 dermatome. Id. Dr. Smith noted Plaintiff's symptoms were most consistent with epidural fibrosis surrounding the left S1 nerve root and the lateral recess, although he admitted she had some symptoms that did not entirely correlate with the diagnosis. Id. He suggested a caudal catheter ESI, and Plaintiff agreed to proceed with it. Id. He ordered an MRI of Plaintiff's left hip to rule out any other etiology that may be contributing to her symptoms. Id. He prescribed Norco 10 mg, twice a day. Id. He also discussed with Plaintiff an SCS trial and explained that the technology had improved since her failed experiences, but acknowledged as reasonable her reluctance to try another SCS. Id.
On February 19, 2019, an MRI of Plaintiff's left hip showed no acute musculotendinosis abnormality and no intra-articular joint derangement. Tr. at 554.
Dr. Smith administered a caudal catheter ESI at Plaintiff's left L5-S1 level on February 22, 2019. Tr. at 555. On March 8, 2019, he administered a left intra-articular SI joint injection. Tr. at 589.
Plaintiff endorsed localized low back pain with left posterior symptoms on March 13, 2018. Tr. at 583. She reported no relief from bilateral SI joint injections and caudal catheter ESI. Id. She rated her pain as a seven. Id. Dr. Smith observed Plaintiff to have TTP over the lower lumbar facets and paraspinals, as well as over the left posterior superior iliac spine. Tr. at 586. He noted decreased sensation to light touch over the posterior left leg in the S1 dermatome. Id. He indicated Plaintiff took Norco only on her absolute worst days. Id. He increased Nortriptyline to 25 mg twice a day. Id.
Plaintiff presented to Dr. Gheorghiu to establish neurological treatment on April 11, 2019. Tr. at 590. She complained of being under increased stress, but denied seizures and indicated her medications continued to effectively control her headaches. Id. Dr. Gheorghiu noted antalgic gait, positive Romberg test, 5/5 strength in the proximal and distal muscles of the bilateral upper and lower extremities, normal muscle tone, no muscle atrophy, normal mental functioning, intact cranial nerves, normal sensation to light touch and pinprick in both upper and lower extremities, and normal coordination. Id. He refilled Plaintiff's medications for migraines and epilepsy. Tr. at 591.
On April 16, 2019, Plaintiff complained of significant left leg pain due to epidural fibrosis surrounding the left S1 nerve root. Tr. at 578. She indicated she continued to be quite debilitated by the pain, despite an increase in Nortriptyline. Id. She rated her pain as a seven. Id. Dr. Smith observed Plaintiff to have TTP over the lower lumbar facets and paraspinals, as well as over the left posterior superior iliac spine. Tr. at 581. He noted decreased sensation to light touch over Plaintiff's posterior left leg in the S1 dermatome. Id. He assessed low back pain with LLE radicular symptoms and indicated Plaintiff had tried and failed SI joint injections and caudal catheter ESIs. Id. He increased Nortriptyline to 25 mg, up to four times a day, and referred Plaintiff to physical therapy to include aquatic therapy. Id.
On April 29, 2019, Plaintiff presented to SRHS for a physical therapy evaluation. Tr. at 606-10. She endorsed worsening symptoms. Tr. at 606. Physical therapist Arden K. Boggs ("PT Boggs") noted Plaintiff had slow, antalgic gait to the left; 4+/5 strength with resisted hip flexion and 1/5 strength with right ankle dorsiflexion; reduced ROM on the left; TTP in the lumbar spine; impaired sensation to light touch and proprioception; and positive Spurling's test on the left. Tr. at 607. She indicated Plaintiff's rehabilitation potential was fair and recommended aquatic therapy twice a week for 12 weeks. Tr. at 609. PT Boggs subsequently discharged Plaintiff on May 31, 2019, as she failed to return to therapy. Tr. at 610.
On May 1, 2019, a second state agency medical consultant, Delsadie Callins, M.D. ("Dr. Callins"), reviewed the record and provided a similar RFC assessment to Dr. Smolka's, except she limited Plaintiff to occasional operation of foot controls with the LLE, as opposed to the RLE, imposed no restriction as to extreme heat, and indicated Plaintiff should avoid concentrated exposure to vibration. Compare Tr. at 70-74, with Tr. at 89-93.
On May 2, 2019, a second state agency psychological consultant, Marvin Blase, M.D. ("Dr. Blase"), reviewed the record, considered Listing 12.06, assessed the same degree of limitation as to each area of mental functioning as Dr. Clanton, and similarly concluded Plaintiff's mental impairment was non-severe. Compare Tr. at 68-69, with Tr. at 87-88.
Plaintiff returned to Dr. Bishop for primary care follow up on July 8, 2019. Tr. at 592. She indicated she was taking one Xanax at night and requested that Dr. Bishop take over prescribing Ativan and a beta blocker, as Dr. Potes had previously prescribed them. Id. Dr. Bishop indicated Plaintiff appeared to be doing well overall and recorded no abnormalities on physical exam. Tr. at 592-93. He prescribed Effexor XR, Atenolol 25 mg, Ativan 2 mg, and Protonix 40 mg. Tr. at 593.
On July 16, 2019, Plaintiff complained of chronic pain related to epidural fibrosis surrounding the left S1 nerve root, as well as new pain in her buttock that worsened upon walking for an extended period. Tr. at 640. She described the pain as aching and throbbing and rated it as a seven. Id. She denied having started the increased dose of Nortriptyline. Id. Dr. Smith noted TTP over the lower lumbar facets and paraspinals, as well as the left posterior superior iliac spine. Tr. at 643. He documented decreased sensation to light touch over the posterior left leg in the S1 dermatome. Id. He indicated the problem could be related to Plaintiff's left SI joint and recommended injections to the area. Id. Plaintiff agreed to proceed with the injections. Id.
Dr. Smith administered a transforaminal ESI at Plaintiff's left S1 area on July 19, 2019. Tr. at 637.
Plaintiff followed up with Dr. Chittum on August 20, 2019. Tr. at 631. She reported severe, unremitting back pain she rated as a nine that had begun a week-and-a-half prior and was not associated with any distinct injury or event. Id. She noted she had fallen one month prior due to her leg having given way. Id. Dr. Chittum observed Plaintiff to be very tearful during the exam. Tr. at 634. He recorded 5/5 strength in the lower extremities, intact sensation to light touch, and 1/2 reflexes at the knees and ankles. Id. He ordered a new MRI. Id.
On August 21, 2019, Roberto Jose Pereyo, M.D. ("Dr. Pereyo"), performed robotic total laparoscopic hysterectomy and bilateral salpingo-oophorectomy due to a failed ablation procedure. Tr. at 599-605. Plaintiff sustained an injury to her bladder during the procedure that required she be discharged with a catheter and follow up with a urologist for a cystogram. Tr. at 601, 605.
On August 26, 2019, an MRI of Plaintiff's lumbar spine showed prior L5-S1 fusion without evidence of recurrent disc disease and mild DDD at L4-5 with slight annular disc bulging. Tr. at 628-29.
Plaintiff presented to William L. Miller, M.D. ("Dr. Miller"), on August 28, 2019, for iatrogenic bladder trauma. Tr. at 611. She complained of incontinence, chronic back pain, and tingling. Tr. at 612. Dr. Miller performed a cystogram and removed the catheter. Id. He instructed Plaintiff to follow up for a bladder scan and reassessment of possible urge incontinence in six weeks. Tr. at 613.
On August 29, 2019, Plaintiff complained of severe, unrelenting lower back pain she rated as a six. Tr. at 623. She endorsed recent urinary incontinence. Tr. at 626. Dr. Chittum observed Plaintiff to be very tearful on exam. Id. He recorded 5/5 strength in the lower extremities, intact sensation to light touch, and 1/2 reflexes at the knees and ankles. Id. He had no new recommendations based on having reviewed an updated MRI. Id. He indicated mild degenerative changes above Plaintiff's fusion site did not require surgical intervention. Id. He advised Plaintiff to continue pain management, but she indicated it had been unsuccessful. Id. He recommended physical therapy, but Plaintiff indicated she could not afford it. Id.
Dr. Chittum completed a medical opinion questionnaire on September 5, 2019. Tr. at 650-51. He indicated he had treated Plaintiff every four to 12 weeks since February 20, 2018. Tr. at 650. He wrote: "Patient's back pain along with chronic radiculopathy interfere with ability to perform daily and work activities due to severity of pain. Id. He specified that Plaintiff's impairments would distract her in a job setting, increase with physical activity, require she be permitted frequent rest periods, preclude full-time work at even a sedentary exertional level, cause her to take unscheduled breaks, produce good and bad days, and result in her missing more than four days of work per month. Tr. at 650-51. He indicated the same restrictions had applied over the period he had treated Plaintiff. Tr. at 651.
On October 15, 2019, Plaintiff rated her pain as a six. Tr. at 653. Dr. Smith noted most of Plaintiff's symptoms were axial, starting on the left side and radiating to the right side. Id. He observed TTP over the L4 through S1 facets and paraspinals and positive Kemp's test. Tr. at 656. He reviewed Plaintiff's most recent MRI results and indicated she appeared to have an annular tear at L4-5. Id. He indicated he would schedule Plaintiff for bilateral L4-5 intra-articular facet joint injections. Tr. at 657. He discontinued Nortriptyline due to lack of benefit, prescribed Duloxetine 30 mg, and refilled Gabapentin, Zanaflex, and ibuprofen. Id.
C. The Administrative Proceedings
1. The Administrative Hearing
a. Plaintiff's Testimony
At the hearing, Plaintiff testified she was initially injured at work, when a fire extinguisher fell from a wall onto her right foot. Tr. at 37-38. She indicated she had undergone multiple surgeries following the injury. Tr. at 38. She stated she had reduced ROM in her right foot, difficulty walking for long periods, difficulty descending steps, and difficulty driving for long distances because it hurt to apply pressure to brake. Id. She said she typically drove only near her house. Id. She indicated she would climb sideways and use the handrail when navigating the three steps leading into her home. Tr. at 38-39.
Plaintiff testified she experienced terrible back pain. Tr. at 39. She stated she could not sit or stand for long periods and sleep in her bed for the entire night, as she had to get up and move around or transition to a recliner. Id. She said she was unable to bend over. Id. She indicated she did not visit the grocery store by herself, as she could not pick up cases of water or items from low shelves. Id. She stated she could fold clothes and retrieve them from a high hamper to place in the washer, but could not reach down to move them from the washer to the dryer or to take them out of the dryer. Id. She stated Dr. Chittum had performed her two back surgeries. Tr. at 39-40. She said he had informed her that she had a small annular tear and planned to continue treatment with injections until the tear worsened to the point that it would require surgery. Tr. at 40.
Plaintiff confirmed she was compliant with her prescribed medications. Id. She said she had a history of seizures, but her medications had eliminated them. Id. She stated she was aware of and avoided environmental factors that tended to cause her seizures. Id. She indicated she continued to experience migraines once or twice a week. Tr. at 41. She said they typically lasted for one to three hours, as she would take her medication and sleep them off. Id. She said she took medication for SVT and her doctor had instructed her to take an additional dose of medication and engage in specific exercises if she experienced an episode. Tr. at 42.
Plaintiff testified she could sit comfortably for about 30 minutes at a time. Id. She indicated she attended church on Sundays, but was unable to sit through the entire service. Tr. at 43. She said she sat in the back so she could stand up without disturbing others. Id. She indicated it particularly helped to stand if she was experiencing pain in her left sciatic nerve. Id. She stated she would stand for 10 to 30 minutes. Id. She said she walked 50 feet to her mailbox and had difficulty standing in line, such that she would have to leave the line and walk to the car while her husband waited in the checkout line at Wal-Mart. Tr. at 43-44. She noted standing caused increased pain in her lower lumbar area that sometimes radiated down to her left ankle. Tr. at 44. She testified she experienced pain and swelling in her right ankle upon shifting her weight to that side and had to wear open shoes or bedroom slippers once or twice a month because swelling in her right foot prevented her from wearing normal shoes. Tr. at 44-45. She stated the heaviest item she lifted was a gallon of milk, which she held with her right hand and supported with her left. Tr. at 45. She denied being able to lift a gallon of milk with her left hand alone and said she could not lift it with her right hand alone without experiencing increased pain. Id.
Plaintiff testified her PRW as a pelvic health specialist required her to lift and carry greater than 100 pounds, as she had to pick up and move patients. Id. She indicated she drove from Kentucky to Atlanta to perform bladder studies on patients. Tr. at 52. She said she would place the patients in a special chair and bend over to manipulate a machine. Id. She indicated she would have to help some patients to stand and would have to lift some from wheelchairs onto the special chair. Id. She noted she would use a computer to send test results to doctors. Tr. at 53. She denied having worked with Dr. Chittum while performing the job. Id. She said she also had to lift over 100 pounds when she worked as a CMA. Tr. at 46. She stated she provided nursing assistance to doctors at Urgent Medical Care and Urology Center of Spartanburg. Id. She noted that following her injury, she had moved to triage, where she handled emergency phone calls. Id. She denied having worked with Dr. Chittum in those jobs. Id. She also denied having had the ability to access and edit her medical records. Id.
Plaintiff denied being able to pick up items from the ground and carry them. Id. She stated she could not bend over to pick up an item or retrieve a dropped item. Id. She denied being able to kneel, squat, crouch, crawl, and climb ladders. Tr. at 47. She said she could dress herself, but wore slip-on shoes and sometimes required her husband's or daughter's assistance to put on pants and socks. Id. She indicated she did not shower when she was alone in the house because of her seizure history and occasional loss of balance and did not take baths because she could not get down in and back out of the tub. Tr. at 48. She said she needed help to shave. Id. She confirmed that her left leg had given out and caused her to stumble and fall. Id. She admitted she could make a sandwich, as her husband had placed the ingredients at a level that did not require her to bend. Id. She said her husband typically prepared the meals for her household. Id.
Plaintiff stated her functioning varied from day-to-day. Tr. at 49. She said she usually had four bad days per week that she would spend lying in bed, going back and forth to the recliner, and lying on a cooling unit that her doctor had prescribed following her surgeries. Id. She confirmed that she sometimes used narcotic medications, but did not do so if her children were with her or if she had to pick them up from school. Id. She stated she had two or three good days per week when she would watch her son do karate and participate in other activities with her family. Tr. at 50. She said she had taken a trip with her family to a pumpkin patch and apple orchard in Asheville, but had to stop to stretch during the car ride and leave the activity to sit down before her family finished. Id. She indicated she would lean her seat back to stretch in the car and would usually get out and stretch during any car trip lasting at least 30 minutes. Id. She denied picking apples on her own. Id. She said she was upset because she could not do things she had previously done with her children and tried to do what she could on days when she was feeling okay. Tr. at 50-51. She indicated she was unable to help her daughter practice for softball, but would watch her practice. Tr. at 50. She confirmed she had recently sold her pontoon boat and home at the lake because she was unable to use them. Id. She denied riding her husband's motorcycle and an all-terrain vehicle they kept for their children. Id.
Plaintiff testified she had not pursued aquatic exercises because she could not afford to pay $50 per visit. Tr. at 54. She denied having been informed of any less-expensive alternatives. Id. She confirmed she continued to have bladder problems and leakage when she did not make it to the restroom as quickly as required. Id.
In response to the ALJ's questioning as to specific records from Dr. Chittum, Plaintiff admitted her gait was normal on some days and that she limped, stumbled, and was off balance on other days. Tr. at 55. She said she had normal strength in her legs on some days, but was unable to lower the recliner with her feet on other days. Tr. at 55-56. She confirmed having undergone fusion at L5-S1 and having epidural fibrosis surrounding the left SI nerve root for which she was receiving caudal injections. Tr. at 57. She indicated she would likely miss more than four days of work per month because of the frequency of her bad days. Tr. at 58.
Plaintiff admitted she had filed a workers' compensation claim when she was injured by the fire extinguisher falling on her foot. Id. She denied having filed any workers' compensation claims over the prior two years. Id.
b. Vocational Expert Testimony
Vocational Expert ("VE") Kim Williford reviewed the record and testified at the hearing. Tr. at 59-62. The VE categorized Plaintiff's PRW as a medical assistant, Dictionary of Occupational Titles ("DOT") No. 079.362-010, as requiring light exertion per the DOT and medium exertion as performed and having a specific vocational preparation ("SVP") of 6. Tr. at 59-60. She stated the DOT did not have a specific code for a pelvic health specialist, but considered comparable its description for a pulmonary function technician, DOT No. 078.262-010, which had an SVP of 6 and required light exertion per the DOT and heavy exertion as Plaintiff performed it. Tr. at 60. She said both jobs produced skills that were transferable to medical jobs at the sedentary exertional level. Id. The ALJ described a hypothetical individual of Plaintiff's vocational profile who could perform the full range of light work, would require the ability to alternate sitting and standing positions every 30 minutes throughout the day, and could not climb ladders, ropes, and scaffolds. Tr. at 60-61. The VE testified the hypothetical individual would be unable to perform Plaintiff's PRW. Tr. at 61. The ALJ asked whether there were any other jobs in the national economy that the hypothetical person could perform. Id. The VE identified light jobs with an SVP of 2 as an office helper, DOT No. 239.587-010, a routing clerk, DOT No. 222.587-038, and a scanner, DOT No. 207.685-014, with 48,000, 40,000, and 18,000 positions, respectively. Id. However, she reduced all three jobs by 50% to account for changes in position, leaving 24,000 office helper, 20,000 routing clerk, and 9,000 scanner positions in the national economy. Id.
The ALJ next described a hypothetical individual of Plaintiff's vocational profile who could perform the full range of sedentary work, but could not climb ladders, ropes, or scaffolds, could not stand for two hours cumulatively during the workday, and would miss more than four days per month on an unscheduled basis. Tr. at 61-62. The VE testified the restrictions would preclude Plaintiff's PRW and all other competitive employment. Tr. at 62.
The VE confirmed her testimony was consistent with the DOT and its companion publications. Id. However, she explained she provided information as to the need to alternate positions, absences, and transferable skills that were not addressed in the DOT and were based on her experience in job placement and labor market research. Id.
2. The ALJ's Findings
In his decision, the ALJ made the following findings of fact and conclusions of law:
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2022.
2. The claimant has not engaged in substantial gainful activity since February 21, 2018, the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: spine disorders and obesity (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 light work as defined in 20 CFR 404.1567(b) except she must be permitted to alternate sitting and standing positions every thirty minutes. She can never climb ladders, ropes, and scaffolds.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on March 9, 1979 and was 38 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563).Tr. at 14-23. II. Discussion
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from February 21, 2018, through the date of this decision (20 CFR 404.1520(g)).
Plaintiff alleges the Commissioner erred for the following reasons:
1) the ALJ failed to adequately evaluate Plaintiff's subjective allegations as to symptoms;
2) the ALJ did not consider all Plaintiff's limitations in assessing her RFC;
3) the ALJ did not provide adequate reasons for finding that Plaintiff's physician's medical opinion was not persuasive; and
4) the ALJ failed to properly assess Plaintiff's mental RFC.
The Commissioner counters that substantial evidence supports the ALJ's findings and that the ALJ committed no legal error in her 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 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 his 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. Evaluation of Subjective Allegations
Plaintiff argues substantial evidence does not support the ALJ's credibility determination. [ECF No. 23 at 19]. She maintains the ALJ ignored evidence that supported her testimony, including her multiple complaints of pain, her medical providers' observations as to her pain complaints, her medical providers' objective findings, and imaging reports. Id. at 23-25; ECF No. 26 at 1-3. She claims the ALJ ignored evidence contrary to his conclusion and failed to explain which of her statements he chose to believe and which he chose to discredit. Id. at 30.
The Commissioner argues substantial evidence supports the ALJ's finding that Plaintiff's subjective complaints of disabling pain were not entirely consistent with the objective medical evidence and her ADLs. [ECF No. 25 at 7]. He maintains the ALJ "carefully considered Plaintiff's testimony, precisely articulated why he found her statements only partially supported, and identified the substantial evidence in the record that supported his analysis." Id. at 8. He notes the ALJ found Plaintiff's "course of care ha[d] been effective in address[ing] her complaints of pain." Id. He further contends the ALJ considered that, despite Plaintiff's "assertions of total disability, she remained highly functional." Id. at 9.
As an initial matter, the undersigned notes that ALJs are not to evaluate a claimant's credibility, as "subjective symptom evaluation is not an examination of an individual's character." SSR 16-3p, 2016 WL 1119029, at *1. Instead, they are to evaluate the intensity and persistence of an individual's symptoms to determine how they limit her ability to perform work-related activities. Id. at *2.
"[A]n ALJ follows a two-step analysis when considering a claimant's subjective statements about impairments and symptoms." Lewis v. Berryhill, 858 F.3d 858, 865-66 (4th Cir. 2017) (citing 20 C.F.R. § 404.1529(b)). If the ALJ concludes the claimant's impairment could reasonably produce the symptoms she alleges, he is to proceed to the second step, which requires him to "evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit [her] ability to perform basic work activities." Id. (citing 20 C.F.R. § 404.1529(c)).
The ALJ is required to "evaluate whether the [claimant's] statements are consistent with objective medical evidence and the other evidence." SSR 16-3p, 2016 WL 1119029, at *6. However, the evaluation cannot be "based solely on objective medical evidence unless that objective medical evidence supports a finding that the individual is disabled." Id. at *4. The ALJ must consider other evidence to include "statements from the individual, medical sources, and any other sources that might have information about the claimant's symptoms, including agency personnel, as well as the factors set forth in [the] regulations." Id. at *5; see also 20 C.F.R. § 404.1529(c) (listing factors to include ADLs; the location, duration, frequency, and intensity of pain or other symptoms; any measures other than treatment an individual uses or has used to relieve pain or other symptoms; and any other factors concerning an individual's functional limitations and restrictions due to pain or other symptoms).
In accordance with SSR 16-3p, the ALJ is required to explain which of the claimant's symptoms he found "consistent or inconsistent with the evidence in [the] record and how [his] evaluation of the individual's symptoms led to [his] conclusions." SSR 16-3p, 2016 WL 1118029, at *8. "An ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding." Lewis, 858 F.3d at 869 (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010). Moreover, "[a]n ALJ may not consider the type of activities a claimant can perform without also considering the extent to which she can perform them." Woods v. Berryhill, 888 F.3d 686, 694. (4th Cir. 2018).
The ALJ found that Plaintiff's "medically determinable impairments could reasonably be expected to cause the alleged symptoms," but that her "statements and allegations . . . concerning the intensity, persistence and limiting effects of these symptoms [were] not entirely consistent with the medical evidence and other evidence in the record." Tr. at 17. The ALJ indicated Plaintiff's statements were inconsistent with evidence that "her prescribed care ha[d] been effective in address[ing] her complaints of pain." Tr. at 18. He further wrote:
With the objective evidence showing no significant functional limitations, the claimant has not met her burden of proof showing that her impairments render her disabled. While the claimant has pursued ongoing treatment for her back pain, her course of care has been effective in address[ing] her complaints of pain. The claimant's abnormal objective findings were sporadic, she denied taking her prescribed pain medications, and she declined physical therapy. Moreover, despite her assertions of total disability, she remains highly functional. The claimant reported that she transports her children to and from school and extracurricular activities, shops, prepares meals, performs household chores, attends church, attends her children's activities, and travels.Tr. at 21.
The record does not support the ALJ's finding that Plaintiff's "prescribed care ha[d] been effective in address[ing] her complaints of pain." Tr. at 18. Prior to her alleged onset date, Plaintiff tried a variety of pain and other medications and underwent multiple surgeries, ESIs, nerve blocks, other procedures, and implantation and removal of two SCSs in her effort to control her right ankle pain and increase her functioning. See Tr. at 308-12, 315, 328, 336, 372-76. In January 2018, Plaintiff reported recent onset of radiating left lower back pain. Tr. at 440. An MRI revealed a broad-based disc herniation at L5-S1 that abutted the left S1 nerve root with reactive endplate changes and disc desiccation at that level and a partial disc desiccation and small annular tear without herniation or stenosis at L4-5. Tr. at 405. Upon reviewing the MRI and examining Plaintiff, both Drs. Lim and Chittum recommended L5-S1 microdiscectomy. Tr. at 398, 458. On March 5, 2018, Dr. Chittum performed the surgery. Tr. at 403-04, 415-17. Plaintiff initially reported minimal improvement, but subsequently endorsed increased symptoms. Tr. at 467, 476-87, 482, 485, 492. On June 8, 2018, an MRI revealed postoperative changes on the left at L5-S1 with residual foraminal stenosis due to recurrent disc and significant facet gapping, causing Dr. Chittum to recommend L5-S1 PLIF. Tr. at 495. Dr. Chittum performed that surgery on July 16, 2018. Tr. at 498-99. Plaintiff initially endorsed relief from surgery. Tr. at 501. However, on August 28, 2018, she reported increased left low back pain that had begun ten days prior and was making it difficult for her to rest and perform ADLs. Tr. at 505. She continued to report severe and often debilitating pain that failed to respond to decreased activity, muscle relaxants, steroid medications, ESIs, Nortriptyline, and SI joint injections. See Tr. at 510, 545, 548, 549, 574, 578, 606, 623, 631, 640, 653. In contravention of SSR 16-3p, the ALJ's decision does not reflect his consideration of Plaintiff's statements throughout the record as to the intensity, persistence, and limiting effects of her symptoms. SSR 16-3p, 2016 WL 1119029 at *6
Despite instruction in SSR 16-3p to consider statements from the claimant's medical sources, the ALJ did not address Plaintiff's providers' observations that were consistent with her complaints. See id. On multiple occasions, Dr. Chittum, NP Turner, and NP Brown recorded that Plaintiff was tearful, insisted on standing throughout the exam due to low back pain, appeared uncomfortable, and frequently changed positions. See Tr. at 470, 485, 489, 508, 513, 548, 577, 626, 634.
In characterizing abnormal findings as "sporadic," the ALJ cherrypicked the evidence. He noted "tenderness in [Plaintiff's] lumbar spine and weakly positive straight leg raise testing," but normal gait and no motor or sensory deficits on January 4, 2018. Tr. at 18. He stated a February 20, 2018 exam was essentially normal. Id. He indicated a March 2018 exam "revealed mildly antalgic gait and decreased weight bearing on her left leg," but "[h]er examination was otherwise normal." Id. He stated "examination findings remained largely unchanged in April 2018, with only decreased flexion in the right leg. Id. He noted Plaintiff had normal motor strength, tone, sensation, and gait during a July 6, 2018 exam and an unremarkable musculoskeletal exam on July 9, 2018. Id. He acknowledged that Plaintiff's exam findings had increased in September 2018, but did not elaborate. Tr. at 19. He cited Dr. Potes's findings of normal strength, sensation, and gait on December 4, 2018. Id. He noted that in August 2019, Plaintiff "had normal gait, full strength in her lower extremities, intact sensation, and only slightly diminished reflexes." Id. However, the ALJ ignored additional objective evidence of TTP, positive SLR on the left, decreased EHL strength, antalgic gait, decreased LLE strength with dorsiflexion and plantar flexion, mild residual hypesthesia, decreased quad strength, decreased left hip flexion, decreased RLE strength, decreased sensation to light touch in the posterior left leg in the S1 dermatome, decreased ROM of the lower back, and positive Romberg, Spurling's, and Kemp's tests. See Tr. at 387, 397, 438, 441, 470, 473, 485, 489, 495, 508, 513, 548, 552, 581, 586, 590, 607, 643, 657.
The ALJ's characterization of Plaintiff as highly functional ignores the qualifications she provided as to her ability to perform her ADLs. Although Plaintiff reported driving her children to school and activities, she indicated she did so only on days when she was able and testified she only drove near her house because it hurt to apply pressure to brake over an extended period. Tr. at 38, 221. While she said she could go shopping with her husband, she indicated she could not lift large items or stand in the checkout line for any significant period and often had to leave while her husband remained in line. Tr. at 39, 43-44. Although Plaintiff admitted she could prepare foods like sandwiches and microwaveable meals, she testified her husband prepared meals for the family and placed ingredients for the simple meals she prepared at a level where she could access them without bending or stretching. Tr. at 48, 222. She said she folded clothes and transferred them from a high hamper to the washer, but denied being able to move clothes from the washer to the dryer or to perform chores like mopping, dusting, and yardwork. Tr. at 39, 223. She testified she attended church, but could not sit through the service and took a seat in the back so she could stand. Tr. at 43. She said she could attend her children's activities on her better days. Tr. at 50-51. She noted she had taken a recent car trip, but leaned her seat back to stretch in the car, stopped to stretch after riding for 30 minutes, and left the activity to sit down before her family finished. Tr. at 50. The ALJ's decision does not reflect that he considered Plaintiff's qualifying statements as to how she performed her ADLs, as required by the Fourth Circuit, prior to concluding that she was "highly functional." He did not explain how the ADLs Plaintiff reported were inconsistent with her statements as to the intensity, persistence, and limiting effects of her symptoms or how they supported the RFC he assessed.
The ALJ also failed to engage in the proper analysis prior to discounting Plaintiff's allegations based on her failure to take prescribed pain medications and pursue additional physical therapy. Although an ALJ may consider an individual's failure to follow prescribed treatment that might improve symptoms, he cannot rely on such information to find the alleged intensity and persistence of the individual's symptoms inconsistent with the record "without considering possible reasons he or she may not comply with treatment." SSR 16-3p, 2016 WL 1119029, at *8. The ALJ reached his conclusion without addressing Plaintiff's testimony and statement to Dr. Chittum that she declined aquatic therapy because she could not afford it. See Tr. at 54, 626; see also Lovejoy v. Heckler, 790 F.2d 1114, 1117 (4th Cir. 1985) ("[A] claimant may not be penalized for failing to seek treatment she cannot afford; 'it flies in the face of the patent purposes of the Social Security Act to deny benefits to someone because he is too poor to obtain medical treatment that may help him.'") (quoting Gordon v. Schweiker, 725 F.2d 231, 237 (4th Cir. 1984)). The ALJ did not question Plaintiff as to the reasons for her reluctance to take opioid pain medications. However, given serious harms associated with these medications, it would not be unreasonable for an individual to decline to take them on a regular basis. See Opioid Medications, U.S. Food & Drug Administration, https://www.fda.gov/drugs/information-drug-class/opioid-medications (last visited June 22, 2021) ("However, too many Americans have been impacted by the serious harms associated with these medications, and despite ongoing efforts, the scope of the opioid crisis continues to grow . . . . Opioids are claiming lives at a staggering rate, and overdoses from prescription opioids are reducing life expectancy in the United States).
A court may take judicial notice of factual information located in postings on government websites. See Phillips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (stating a court may "take judicial notice of matters of public record").
Given these errors, the undersigned recommends the court find that substantial evidence does not support the ALJ's evaluation of Plaintiff's subjective allegations.
2. RFC Assessment
Plaintiff argues the ALJ over-assessed her abilities in determining her RFC. [ECF No. 23 at 31]. She maintains the ALJ's error in evaluating her subjective allegations caused him to erroneously conclude she could perform work at the light exertional level. Id. at 32. She argues the ALJ did not consider her ability to perform individual functions required for light work. [ECF No. 26 at 6]. She claims the ALJ should have limited her to sedentary work based on her testimony as to her lifting, sitting, standing, and walking abilities. [ECF No. 23 at 33]. She further contends the ALJ failed to consider the combined effect of her impairments in assessing her RFC. Id. at 32. She notes the ALJ failed to cite to 20 C.F.R. § 404.1545, the relevant regulatory section, in explaining the RFC assessment. Id. at 34. She maintains his decision does not reflect the required function-by-function analysis. Id.
The Commissioner argues the ALJ explained how the whole record supported the RFC assessment and provided a narrative discussion that permits meaningful judicial review. [ECF No 25 at 15-17]. He maintains the ALJ supported his RFC assessment by relying on Plaintiff's longitudinal treatment history, her discontinuation of pain medication, her having declined physical therapy, diagnostic imaging reports, physical exam findings, and non-medical evidence that showed she "remained 'highly functional,'" cared for her personal needs, cared for the needs of her family members, drove her children to and from school, attended her children's activities, attended church regularly, shopped in stores, and traveled. Id. at 16.
A claimant's RFC represents "the most [she] can still do despite [her] limitations. 20 C.F.R. § 404.1545(a). In assessing the claimant's RFC, the ALJ must "consider all of the claimant's 'physical and mental impairments, severe and otherwise, and determine, on a function-by-function basis, how they affect [the claimant's] ability to work.'" Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019) (quoting Monroe v. Colvin, 826 F.3d 176, 188 (4th Cir. 2016)). The Fourth Circuit has declined to adopt a per se rule requiring remand where an ALJ fails to perform an explicit function-by-function analysis, as "remand would prove futile in cases where the ALJ does not discuss functions that are 'irrelevant or uncontested.'" Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2016). However, "'[r]emand 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.'" Id. (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)).
In Thomas, 915 F.3d at 311, the court noted "[a] proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion. The logical explanation component requires the ALJ consider all the relevant evidence and account for all the claimant's medically-determinable impairments. See 20 C.F.R. § 404.1545(a). "A necessary predicate to engaging in substantial evidence review is a record of the basis for the ALJ's ruling," including "a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence." Radford v. Colvin, 734 F.3d 288 (4th Cir. 2013). Thus, the ALJ must include a narrative discussion that cites "specific medical facts (e.g., laboratory findings), and non-medical evidence (e.g., daily activities, observations)" and explains how all the relevant evidence supports each conclusion. SSR 96-8p, 1996 WL 374184, at *7.
The ALJ found Plaintiff had the RFC "to perform light work as defined in 20 CFR 404.1567(b) except she must be permitted to alternate sitting and standing positions every thirty minutes" and "can never climb ladders, ropes, and scaffolds." Tr. at 16. After setting forth the RFC assessment, he stated he had considered Plaintiff's symptoms "based on the requirements of 20 CFR 404.1529 and SSR 16-3p" and had "consider[ed] the medical opinion(s) and prior administrative medical findings(s) in accordance with the requirements of 20 CFR 404.1520c." Tr. at 16-17. He recounted Plaintiff's hearing testimony. Tr. at 17. He stated he had found after "[h]aving reviewed the medical record . . . that the claimant [was] capable of a reduced range of light exertional activity that include[d] an option to alternate between sitting and standing based on the hearing testimony and preclude[d] climb[ing] ladders, ropes, and scaffolds." Tr. at 18. The ALJ then proceeded to summarize some of the medical evidence, noting both positive and negative observations on exams, imaging test results, and surgical and other interventions. Tr. at 18-19. He indicated he considered Plaintiff's obesity in assessing her severe impairments and RFC in accordance with SSR 19-2p. Tr. at 19. He discussed opinions from the state agency consultants and Dr. Chittum and provided reasons for finding them unpersuasive. Tr. at 20-21. He wrote:
In weighing the claimant's allegations and the medical evidence, the undersigned has generated a residual functional capacity that accounts for limitations caused by her impairments. The undersigned finds that the claimant is capable of a reduced range of light exertional activity that includes an option to alternate between sitting and standing based on the hearing testimony and precludes climb[ing] ladders, ropes, and scaffolds . . . . In sum, the above residual functional capacity assessment is supported by the medical record evidence which indicates the claimant's impairments impose limitations; however, those limitations do not result in a total disability finding.Tr. at 21.
The ALJ's RFC analysis is fatally flawed due to his errors in evaluating Plaintiff's subjective allegations as to her symptoms. Because his RFC assessment does not reflect well-reasoned analysis as to how Plaintiff's alleged symptoms affected her ability to perform relevant functions, it is not supported by substantial evidence.
In addition, the ALJ engaged in the same faulty evaluation the Fourth Circuit recently chided in Dowling v. Commissioner of Social Security Administration, 986 F.3d 377, 387 (4th Cir. 2021). It explained:
Here, the ALJ relied on an incorrect regulatory framework when he assessed Appellant's RFC. He did not cite to 20 C.F.R. § 416.945, the section of the code of Federal Regulations that is titled "Your residual functional capacity," and explains how ALJs should assess a claimant's RFC. Nor did he cite SSR 96-8p, the 1996 Social Security Ruling that provides guidance on how to properly evaluate an RFC. Finally, the ALJ did not indicate that his RFC assessment was rooted in a function-by-function analysis of how Appellant's impairments impacted her ability to work. Instead, the ALJ's RFC determination was based entirely on SSR 96-7p and 16-3p, which set out the process ALJs use to "evaluate the intensity and persistence of [a claimant's] symptoms" and determine "the extent to which the symptoms can reasonably be accepted as consistent with the objective and other evidence in the record." SSR 16-3p, 2017 WL 5180304, at *2 (Oct. 25, 2017). Of course, a claimant's symptoms, and the extent to which the alleged severity of those symptoms is supported by the record, is relevant to the RFC evaluation. See 20 C.F.R. § 416.945(a)(3) (stating that when evaluating an RFC, an ALJ should consider "limitations that result from the claimant's symptoms, such as pain"). But an RFC assessment is a separate and distinct inquiry from a symptom evaluation, and the ALJ erred by treating them as one and the same.Here, the ALJ's explanation contains no references to SSR 96-8p or 20 C.F.R. § 404.1545, the regulation equivalent to 20 C.F.R. § 416.945 in DIB cases, and focuses instead on SSR 16-3p and 20 C.F.R. § 404.1529, which address evaluation of the claimant's symptoms. See generally Tr. at 16-21.
The ALJ's decision lacks an explanation as to how the evidence supported the conclusion that Plaintiff could perform light work. Plaintiff's abilities to sit, stand, walk, lift, and carry were relevant to the assessment, as Plaintiff alleged she could sit for 30 minutes at a time (Tr. at 42), stand for 10 to 30 minutes at a time (Tr. at 43), walk 50 feet (Tr. at 43), and lift no greater weight than that of a gallon of milk (Tr. at 45). Although the ALJ limited Plaintiff to sitting for 30 minutes and standing for 30 minutes at a time, he did not explain this limitation. He also failed to address his reasons for concluding that Plaintiff could meet the lifting requirements of light work, despite the state agency consultants' opinions and Plaintiff's testimony as to lifting, which were consistent with the sedentary exertional level. The ALJ provided no elucidation as to how he considered the individual functions of light work in reaching a conclusion as to Plaintiff's maximum RFC. He also failed to address limitations imposed by a medically-determinable impairment of RSD of the right ankle, despite significant evidence in the record for the period prior to the onset date that suggested it affected Plaintiff's ability to function. See Tr. at 14-21 (reflecting no consideration of RSD of the right ankle as a severe or non-severe impairment or discussion of the impairment in explaining the RFC assessment). The ALJ's failure to address Plaintiff's ability to perform relevant functions renders his RFC assessment even more flawed.
"Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds." 20 C.F.R. § 404.1567(b). "Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls." Id. "To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities." Id.
Given the aforementioned errors, the undersigned recommends the court find that substantial evidence does not support the ALJ's assessment of Plaintiff's RFC.
3. Additional Allegations of error
Plaintiff argues the ALJ failed to comply with 20 C.F.R. § 404.1520c in evaluating Dr. Chittum's opinion and did not adequately explain his reasons for concluding that it was inconsistent with the other evidence of record. ECF No. 23 at 26-30; ECF No. 26 at 1-3. She further maintains the ALJ failed to properly assess her RFC as it relates to her mental functional abilities and did not consider the cumulative effects of her conditions on her ability to complete an eight-hour workday and five-day work week. ECF No. 23 at 35-39; ECF No. 26 at 8.
The undersigned declines to address Plaintiff's additional arguments with specificity, given the recommendation for remand. However, the undersigned cautions the ALJ that he should consider all the relevant evidence in evaluating the supportability and consistency of Dr. Chittum's opinion on remand. See 20 C.F.R. 404.1520c. 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. June 24, 2021
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).