Opinion
C/A 1:21-1313-MGL-SVH
12-29-2021
Kathleen Lyons, [1] Plaintiff, v. Kilolo Kijakazi, [2] Acting Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Shiva V. Hodges United States Magistrate Judge
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”) and Supplemental Security Income (“SSI”). 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 the Commissioner's decision be reversed and remanded for further proceedings as set forth herein.
I. Relevant Background
A. Procedural History
On March 19, 2019, Plaintiff protectively filed applications for DIB and SSI in which she alleged her disability began on January 1, 2017. Tr. at 75, 76, 200-24, 225-28. Her applications were denied initially and upon reconsideration. Tr. at 125-28, 129-32, 135-40, 141-46. On September 11, 2020, Plaintiff had a hearing by telephone before Administrative Law Judge (“ALJ”) Ronald Sweeda. Tr. at 29-42 (Hr'g Tr.). The ALJ issued an unfavorable decision on September 28, 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 May 4, 2021. [ECF No. 1].
B. Plaintiff's Background and Medical History
1. Background
Plaintiff was 54 years old at the time of the hearing. Tr. at 32. She attended school through the ninth grade. Tr. at 33. She has no past relevant work (“PRW”), as her prior work was not considered substantial gainful activity (“SGA”). She alleges she has been unable to work since January 1, 2017. Tr. at 225.
2. Medical History
Plaintiff presented to the emergency room (“ER”) at Roper Hospital on January 4, 2017. Tr. at 417. She complained of pain in her back, left knee, and left hand due to a car accident three days prior. Id. X-rays of Plaintiff's lumbar spine showed mild degenerative changes, including mild disc space narrowing at ¶ 2-3, with findings somewhat like a 2013 exam. Tr. at 416. Edward Rodelssperger, M.D., diagnosed acute low back pain, contusion, and motor vehicle collision and discharged Plaintiff with prescriptions for Parafon Forte DSC 500 mg and Diclofenac Sodium 75 mg. Tr. at 419.
Plaintiff presented to physician assistant Jennifer L. Willett (“PA Willett”) with complaints of neck and back pain on January 27, 2017. Tr. at 513. She reported having injured her neck and back in a car accident on January 1 and noted her symptoms had not improved. Id. She said her pain ranged from a six to a 10 on a 10-point scale and increased with prolonged sitting or walking. Id. NP Willett observed tenderness to palpation (“TTP”), normal strength, and full range of motion (“ROM”) of the lumbar and cervical spines. Id. She found no edema and intact sensation and deep tendon reflexes (“DTRs”) in Plaintiff's upper and lower extremities. Id. She assessed acute bilateral back pain without sciatica, neck pain, and motor vehicle collision injuring restrained driver. Tr. at 514. She prescribed Medrol Dosepak and indicated Plaintiff could continue to use Flexeril as needed. Id. She recommended heat and massage and referred Plaintiff to physical therapy. Id.
Plaintiff presented to James Island Physical Therapy for an initial evaluation on February 1, 2017. Tr. at 551. She complained of cervical and lumbar pain. Id. Physical therapist Brandon C. Duffie (“PT Duffie”) observed Plaintiff to demonstrate cervical range of motion (“ROM”) grossly decreased by 10 degrees with some pain, lumbar ROM grossly decreased by 20+ degrees, passive ROM of the bilateral hips grossly decreased by five to 10 degrees, 4/5 bilateral upper and lower extremity strength secondary to pain, and decreased bilateral lower extremity flexibility. Tr. at 552. He considered Plaintiff to have good rehabilitation potential and recommended two physical therapy sessions per week for three to four weeks. Id. Physical therapy assistant Rachel Marozzi recommended an additional four weeks of physical therapy on February 24, 2017. Tr. at 568.
Plaintiff participated in physical therapy from February 3, through April 17, 2017. Tr. at 529-50. She often complained of pain that limited her activities of daily living (“ADLs”) and ability to perform physical therapy exercises, but showed some improvement in lumbar ROM. See id.; Tr. at 559.
On February 27, 2017, Plaintiff complained of neck pain with radiation to her left arm and low back pain with radiation around the front and to her hips. Tr. at 509. She denied making progress through physical therapy and reported incomplete relief with medications. Id. PA Willett noted she had prescribed a Medrol taper and Flexeril as needed and had subsequently prescribed Etodolac after Plaintiff reported ongoing pain. Id. She observed TTP in Plaintiff's lumbar and cervical spines with normal strength, full ROM, and intact sensation and DTRs. Id. She prescribed Cyclobenzaprine 20 mg three times a day as needed and ordered magnetic resonance imaging (“MRI”) of the lumbar and cervical spines. Tr. at 510-11.
On March 6, 2017, an MRI showed a bulge with mild ventral cord flattening and severe right and moderately-severe left foraminal stenosis at ¶ 5-6, as well as an annular bulge with mild ventral cord flattening and moderate left foraminal stenosis at ¶ 6-7. Tr. at 412-14. It further indicated minimal lumbar degenerative changes without disc herniation or stenosis. Id.
Plaintiff endorsed pain and indicated she was making little progress with physical therapy on March 24, 2017. Tr. at 505. She indicated she had not yet followed up with the neurosurgeon due to cost. Id. PA Willett recorded TTP of the cervical and lumbar spines with normal strength and ROM to both. Id. PA Willett indicated she had done all she could from a primary care standpoint for Plaintiff's cervical spinal stenosis and that neurosurgical consultation was required. Tr. at 506. She refilled Cyclobenzaprine and Etodolac and encouraged smoking cessation. Tr. at 506-07.
On April 19, 2017, PT Duffie indicated Plaintiff was performing all therapy exercises, would be seeing an orthopedist for further evaluation, and should continue physical therapy according to the plan. Tr. at 528.
On April 27, 2017, Thomas Steele, M.D. (“Dr. Steele”), noted Plaintiff was smoking roughly five cigarettes per day and occasionally binge drinking, but that it did not seem to be causing any problems. Tr. at 666. He noted Plaintiff's mental functioning was stable and improved with her current regimen. Id. He continued Plaintiff on Effexor XR 150 mg daily and two-and-a-half Buspirone 15 mg twice a day. Id. Plaintiff's diagnoses included depressive disorder, not otherwise specified, and unspecified anxiety state. Id.
Plaintiff complained of severe right hip pain on June 1, 2017. Tr. at 628. Pain management specialist Shailesh M. Patel (“Dr. Patel”) noted bilateral paracervical tenderness, limited ROM of the cervical spine, positive seated straight-leg raise (“SLR”) on the right, antalgic gait, painful ROM of the lumbar spine, and decreased sensation of the right knee, medial and lateral leg, and dorsum of the foot. Id. He recommended diagnostic and therapeutic lumbar epidural steroid injections (“ESIs”) and electromyography (“EMG”) and nerve conduction studies (“NCS”) of the lower extremities. Id.
On June 15, 2017, an MRI of Plaintiff's right hip demonstrated mild degenerative fraying of the right acetabular labrum and trace patchy bone marrow edema along the sacral and iliac aspect of both sacroiliac (“SI”) joints, suggesting active degeneration versus mild sacroiliitis. Tr. at 647.
On June 27, 2017, Dr. Patel administered right L4-5 and L5-S1 transforaminal ESIs. Tr. at 636-37.
Plaintiff complained of pain in her cervical and lumbar spines on July 11, 2017. Tr. at 624. She endorsed good relief of sciatica-related pain, but continued moderate SI joint pain. Tr. at 625. Dr. Patel observed tenderness of the bilateral paracervicals, cervical ROM limited by pain, positive SLR on the right, antalgic gait, painful ROM of the lumbar spine, and decreased sensation of the right knee, medial and lateral leg, and dorsum of the foot. Id. He ordered SI joint injections. Id.
Dr. Patel administered bilateral SI joint injections on July 21, 2017. Tr. at 634-35.
On August 3, 2017, Plaintiff described pain as a 10 radiating from her lumbar spine to her right thigh. Tr. at 621. She indicated an SI joint injection had provided no relief. Id. Dr. Patel noted bilateral paracervical tenderness, cervical ROM limited by pain, positive seated SLR on the right, pain with ROM of the lumbar spine, and decreased sensation to the right knee, medial and lateral leg, and dorsum of the foot. Tr. at 621-22. EMG and NCS were normal. Tr. at 641-42. He prescribed Norco 7.5-325 mg twice a day and ordered additional physical therapy. Tr. at 622.
Plaintiff described pain as a seven radiating from her lumbar spine to her right thigh on September 5, 2017. Tr. at 618. She reported physical therapy had provided no significant improvement. Tr. at 619. Dr. Patel observed bilateral paracervical tenderness, limited ROM of the cervical spine due to pain, positive seated SLR test on the right, painful ROM of the lumbar spine, and decreased sensation of the right knee, medial and lateral leg, and dorsum of the foot. Tr. at 618-19. He recommended holding off on further physical therapy and scheduled Plaintiff for lumbar facet injections. Tr. at 619. He continued Plaintiff's prescription for Norco 7.5-325 mg. Id.
Dr. Patel administered bilateral lumbar facet joint injections at Plaintiff's L4-5 and L5-S1 levels on October 6, 2017. Tr. at 630.
Plaintiff rated pain from her lumbar spine to her right thigh as a nine on October 31, 2017. Tr. at 614, 615. Dr. Patel observed bilateral paracervical tenderness, limited ROM of the cervical spine due to pain, antalgic gait, positive seated SLR on the right, painful ROM of the lumbar spine, and decreased sensation in the right knee, medial and lateral leg, and dorsum of the foot. Tr. at 615-16. He noted Plaintiff had received no lasting relief from spinal injections. Tr. at 616. He refilled Plaintiff's medications and ordered a new MRI of the lumbar spine. Id.
On November 2, 2017, Plaintiff complained of back and leg pain and reported sleeping for roughly six hours per night. Tr. at 662. Dr. Steele described Plaintiff as “careworn” and indicated her mood was “[n]ot clearly depressed, but somewhat annoyed at persistent pain with appropriate reactivity.” Id. He recommended an increased dose of Effexor, but Plaintiff preferred to maintain her current regimen. Id.
On November 15, 2017, an MRI of Plaintiff's lumbar spine showed mild mid-lumbar spondylosis with no significant stenoses. Tr. at 638.
Plaintiff described pain as a seven radiating from her lumbar spine to her right thigh during a pain management visit on November 20, 2017. Tr. at 610. She reported injections had provided about 50% pain relief. Tr. at 612. Physician assistant Kathleen D. Bukowsky (“PA Bukowsky”) observed bilateral paracervical tenderness, limited ROM of the cervical spine due to pain, antalgic gait, pain with motion of the lumbar spine, and decreased sensation of the right knee and medial leg and the dorsum of the right foot. Id. She recommended additional therapy, ordered a spinal brace, and prescribed Gabapentin 300 mg. Id.
Plaintiff described pain as a seven in her lumbar spine radiating to her right thigh on January 2, 2018. Tr. at 607, 608. PA Bukowsky observed bilateral paracervical tenderness, limited ROM of the cervical spine, positive SLR on the right, antalgic gait, pain with motion of the lumbar spine. and decreased sensation of the right knee and medial and lateral leg and the dorsum of the right foot Tr. at 609. She indicated Plaintiff had reported 50% relief from SI and facet joint injections and no relief from physical therapy and an SI belt. Id. She further noted Plaintiff represented she was taking her medication three times a day, but had not filled her prescriptions since November 13. Id. She refilled Norco 7.5-325 mg and replaced Gabapentin with Lyrica 75 mg, as Plaintiff complained that Gabapentin was not beneficial and made her feel “loopy.” Id.
Plaintiff rated her pain as a nine on February 5, 2018. Tr. at 604. She described pain in her lumbar spine that radiated to her right thigh and caused weakness. Tr. at 605. Dr. Patel noted tenderness of the bilateral paracervical muscles, cervical ROM limited by pain, positive seated SLR, antalgic gait, pain with motion of the lumbar spine, and decreased sensation of the knee and medial leg in the L4 dermatome and on the lateral leg and dorsum of the foot in the L5 dermatome. Tr. at 606. He indicated he had no further treatment options to offer Plaintiff, as the MRI showed no significant herniation or edema and she reported little lasting relief from spinal injections. Id. Dr. Patel assessed lumbosacral radiculitis, lumbar radiculopathy, and long-term drug therapy and prescribed Norco 7.5-325 mg, Mobic 15 mg, and Cyclobenzaprine 10 mg. Id. He indicated Plaintiff desired to follow up with a neurologist for a second opinion. Id.
Plaintiff complained of back and neck pain, but endorsed relatively good mood on March 22, 2018. Tr. at 660. Dr. Steele described Plaintiff as “careworn, ” but otherwise noted normal findings on exam. Id. He considered Plaintiff's depression to be in remission and refilled Effexor. Id.
Plaintiff presented to neurosurgeon James M. Highsmith, M.D. (“Dr. Highsmith”), for an initial consultation on May 1, 2018. Tr. at 730-31. She described a sharp, stabbing sensation in her low back that radiated into her right anterior thigh and bilateral groins and rated it as a seven to eight. Tr. at 730. She noted it was worsened by prolonged standing and sitting and ADLs. Id. Dr. Highsmith recorded 5/5 musculoskeletal strength, 2/4 DTRs, sensation intact to pinprick and light touch, TTP of the lumbar paraspinous muscles with palpable muscle spasm, trigger points in the right and left quadratus lumborum, tenderness at the midline from L3 to S1 with limited ROM and pain at the endpoints, and positive SLR on the right at 60 degrees. Tr. at 731. He assessed axial low back pain and bilateral lower extremity radiculopathy, as well as lumbar disc disruption at ¶ 2 through L5. Id. He prescribed Diclofenac 75 mg twice a day and physical therapy with a home exercise regimen. Id.
On June 5, 2018, Plaintiff described severe pain that radiated from her low back to her right anterior thigh and groin, causing her legs to tire, difficulty stopping while walking, and increased discomfort with prolonged sitting and standing. Tr. at 732. Dr. Highsmith noted 5/5 musculoskeletal strength, intact sensation to light touch and pinprick, moderate TTP of the lumbar paraspinous muscles with palpable muscle spasms present, trigger points in the right and left quadratus laborum, mild tenderness at the midline from L3 to S1 with limited ROM and pain at the endpoints, and positive SLR on the right at 45 degrees. Id. He suspected Plaintiff's pain was coming from the L2-3 level and felt Plaintiff would benefit from an ESI and posterior decompression at this level. Tr. at 733.
On July 5, 2018, Dr. Steele described Plaintiff's mood as “stable” and “not bad considering continuation of chronic pain.” Tr. at 654. He indicated Plaintiff had some demoralization and was not “really engaging in potentially-pleasurable activities” because “almost any activity [was] painful.” Id. He observed Plaintiff to demonstrate a “somewhat labored” gait and to have appropriate mood without depressive thought content. Id. He noted Plaintiff was psychiatrically stable and continued Effexor. Id.
On August 14, 2018, Plaintiff reported little to no relief of symptoms from the L2-3 ESI. Tr. at 734. She complained of difficulty standing upright and of hunching forward and significant discomfort that increased upon prolonged sitting and standing and engaging in ADLs. Id. Dr. Highsmith noted 4/5 strength in Plaintiff's bilateral hip flexors, diminished sensation in the bilateral anterior thighs, and positive SLR on the right at 30 degrees and on the left at 60 degrees. Tr. at 735. Because of Plaintiff's “persistent symptoms and progressive neurologic decline, ” he recommended she undergo posterior decompression at ¶ 2-3. Id.
Plaintiff returned to Dr. Highsmith for a surgical follow up visit on September 4, 2018. Tr. at 736. She reported some improvement in her hip pain, but complained of continued axial pain that radiated into the top of her thigh, persistent pain, and some swelling. Id. Dr. Highsmith observed 4/5 strength in the bilateral hip flexors, diminished sensation in the bilateral anterior thighs, and moderate swelling around the surgical incision with no erythema or drainage. Tr. at 736, 737. Plaintiff was severely tender at the midline from L2 to S1 with limited ROM and pain at the endpoints. Id. Dr. Highsmith recommended continued use of topical treatments with hot and cold therapy and a trial of Valium. Id. He also prescribed Ultram and instructed Plaintiff to continue to limit her activity. Id.
Plaintiff reported improved and less steady pain in her right hip on October 8, 2018. Tr. at 738. She described a cramping sensation radiating into her right hip and anterior thigh that was precipitated by prolonged standing. Id. She also complained that muscles spasms were keeping her up at night. Id. Dr. Highsmith noted 4+/5 bilateral musculoskeletal strength, improved sensation in the right anterior thigh, a well-healing incision to Plaintiff's lumbar spine with moderate TTP of the lumbar paraspinous muscles, palpable muscle spasms, trigger points in the right and left quadratus laborum, and moderate tenderness at the midline from L2 to L5 with limited ROM and pain at the endpoints. Tr. at 738-39. He refilled Valium, continued Ultram, added Diclofenac 75 mg, and recommended physical therapy for low back strengthening. Id.
On December 13, 2018, Plaintiff reported she had run out of Effexor four days prior and had been taking the medication on alternate days, which led to some sensory withdrawal symptoms. Tr. at 652. She indicated her mood was “as good as can be expected, ” given her chronic back and hip pain. Id. Dr. Steele observed Plaintiff to be “[l]ooking somewhat more careworn” with labored gait and some mood reactivity without frank depression. Id. He instructed Plaintiff to resume Effexor XR 150 mg. Id.
On December 18, 2018, Plaintiff reported improvement of radiating anterior thigh pain, but described a slowly crippling sensation of low back pain into the groin that appeared to be related to the position in which she held her hip. Tr. at 740. She indicated a constant, dull, and aching sensation that reached pain levels of eight and nine. Id. Dr. Highsmith noted 4+/5 bilateral musculoskeletal strength, intact sensation to light touch and pinprick, moderate TTP of the lumbar paraspinous muscles with palpable muscle spasms, trigger points in the right and left quadratus lumborum, mild tenderness at the midline from L3 to S1 with limited ROM and pain at the endpoints, positive FABER test on the right, and negative SLR. Tr. at 740- 41. He prescribed Diclofenac and Flexeril and ordered an MRI of Plaintiff's right hip. Tr. at 741.
During a six-month follow up visit with Richard Ulmer, M.D., on January 30, 2019, Plaintiff endorsed back pain that prevented her from standing for longer than one hour. Tr. at 650-51.
Plaintiff complained of significant pain between the hip, lumbar spine, and SI joint on February 5, 2019. Tr. at 742. Dr. Highsmith noted the MRI showed some fraying of the cartilage in Plaintiff's right acetabulum. Id. He observed positive SI joint tenderness on the right and findings consistent with prior exams. Tr. at 742-43. He recommended pain management and possible radiofrequency ablation in the hip, SI joint, and lumbar spine. Tr. at 743.
On June 17, 2019, x-rays of Plaintiff's right hip showed mild joint narrowing on the right side and moderate joint narrowing on the left side, with shallow osteophytes. Tr. at 786.
Cashton B. Spivey, Ph.D. (“Dr. Spivey”), conducted a consultative psychological evaluation of Plaintiff on June 26, 2019. Tr. at 788-90. Plaintiff endorsed spinal and right hip pain. Tr. at 788. Dr. Spivey observed Plaintiff to walk slowly and with a limp. Id. Plaintiff reported feelings of dysphoria related to physical pain and limitations. Id. She endorsed sleep disturbance, fluctuating appetite, low energy, and daily crying spells, but denied attention/concentration problems, suicidal and homicidal ideation, paranoid ideation, and auditory or visual hallucinations. Tr. at 788-89. She reported fluctuating feelings of anxiety and ruminations. Tr. at 789. She stated she was capable of loading and unloading the dishwasher, dusting, and sweeping on a good day. Id. She indicated she and her roommate shopped for groceries. Id. She described engaging in home physical therapy exercises, taking medication, eating meals, watching television, and interacting with her roommate during a typical day. Id. Dr. Spivey noted Plaintiff scored 23 of 30 points on the Mini-Mental State Examination, consistent with mild cognitive difficulties. Id. He indicated Plaintiff's inability to recall any of three objects at five minutes suggested impairment to her short-term auditory memory functioning. Id. He noted Plaintiff's mood was mildly sad, but she remained pleasant. Id. He stated Plaintiff's attention was fair and her concentration ranged from fair to poor. Id. He observed Plaintiff to alternate between sitting and lying down and indicated she appeared to display a low energy level. Tr. at 790. He diagnosed unspecified depressive disorder and unspecified anxiety disorder. Id. He considered Plaintiff capable of managing her own funds and understanding simple instructions and performing simple tasks in the workplace. Id., Based on behavioral observations during the assessment, Dr. Spivey opined that Plaintiff would display problems with stamina, but not persistence, in the workplace. Id.
Plaintiff presented to Kerri Kolehma, M.D. (“Dr. Kolehma”), for a consultative medical evaluation on July 11, 2019. Tr. at 792-95. She complained of pain in her right hip and leg. Tr. at 792. She noted pain in her right hip and buttocks increased upon standing and radiated into her groin and down her leg to the knee. Id. She indicated the pain increased upon walking and performing motions required for sleeping and turning. Id. She reported surgery had helped her upper back pain, but had not helped the pain in her right buttock, groin, and hip. Id. She endorsed recent use of a cane. Id. She reported abilities to sit for about 10 minutes, stand for about 10 minutes, and walk for five to 10 minutes. Tr. at 792.
Dr. Kolehma observed Plaintiff to ambulate with a cane, leaning through with a moderate amount of pressure. Tr. at 793. She noted Plaintiff sat comfortably and had no problems getting in and out of the chair. Id. She noted TTP of Plaintiff's right hip over the gluteus maximus, gluteus medius, and trochanteric bursa. Tr. at 794. She indicated Plaintiff had pain with internal and external rotation and hip flexion. Id. She noted loss of lumbar lordosis and ROM of the lumbar and cervical spines within functional limits. Id. She described Plaintiff's gait as antalgic with decreased stance phase through the right lower extremity and indicated waking on her heels and toes increased the pain in her right hip. Id. She recorded 5/5 strength, except for 4/5 strength in the right hip. Id. She noted Plaintiff gave way secondary to pain. Id. She recorded 2+, equal, and symmetric reflexes and negative SLR in the seated and supine positions. Id. She reported no conflicting evidence or inconsistencies during the exam. Id.
Dr. Kolehma noted Plaintiff could ambulate without a cane, but should ambulate with a cane in her left hand for comfort and increased speed of walking. Id. She stated Plaintiff should avoid stairs and ladders. Id. She indicated Plaintiff should limit standing and walking to 15 minutes at one time. Id.
On August 14, 2019, state agency psychological consultant Holly Hadley, Psy.D. (“Dr. Hadley”), reviewed the record and completed a psychiatric review technique (“PRT”), considering listings 12.04 for depressive, bipolar, and related disorders and 12.06 for anxiety and obsessive-compulsive disorders. Tr. at 49-51. She assessed mild limitations in Plaintiff's ability to adapt or manage oneself and moderate limitations in her abilities to understand, remember, or apply information, interact with others, and concentrate, persist, or maintain pace. Tr. at 50. She considered Plaintiff “able to perform simple, repetitive work tasks in settings that do not require ongoing interaction with the public.” Tr. at 51. She completed a mental residual functional capacity (“RFC”) assessment, finding Plaintiff moderately limited in her abilities to understand and remember detailed instructions, carry out detailed instructions, maintain attention and concentration for extended periods, complete a normal workday and workweek without interruptions from psychologically-based symptoms and perform at a consistent pace without an unreasonable number and length of rest periods, and interact appropriately with the general public. Tr. at 55-57. Dr. Hadley concluded the record contained insufficient evidence to assess Plaintiff's mental functioning at the time of her date last insured for DIB. Tr. at 67.
State agency medical consultant Stacie Weil, M.D. (“Dr. Weil”), reviewed the record on September 19, 2019, and assessed Plaintiff's physical RFC as follows: 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 balance, stoop, kneel, crouch, crawl, and climb ramps and stairs; never climb ladders, ropes, or scaffolds; and avoid concentrated exposure to extreme cold, extreme heat, and hazards. Tr. at 52-55. Dr. Weil assessed a similar RFC for the period prior to Plaintiff's DLI, except that she indicated lesser postural restrictions. Compare Tr. at 52-55, with Tr. at 68-71.
On December 17, 2019, a second state agency psychological consultant, R. Warren, M.D. (“Dr. Warren”), reviewed the record and completed a PRT, considering listings 12.04 and 12.06, and assessing the same degree of limitation and mental RFC as Dr. Hadley for the current period. Compare Tr. at 49-51 and 55-57, with Tr. at 83-85 and 93-65. Like Dr. Hadley, Dr. Warren concluded the record contained insufficient evidence to assess Plaintiff's mental functioning prior to her DLI. Compare Tr. at 67, with Tr. at 107-08.
A second state agency medical consultant, Stephen Burge, M.D. (“Dr. Burge”), assessed the same physical RFC for the current period as Dr. Weil on December 23, 2019. Compare Tr. at 52-55, with Tr. at 88-91. He also assessed the same RFC as Dr. Weil for the period prior to Plaintiff's DLI. Compare Tr. at 68-71, with Tr. at 91-93.
C. The Administrative Proceedings
1. The Administrative Hearing
a. Plaintiff's Testimony
At the hearing, Plaintiff testified she was 5'3” tall and weighed 120 pounds. Tr. at 33. She indicated she had a driver's license and could drive short distances. Id. She said she could read and write, but often had to reread things because she had dyslexia. Id. She denied having worked since January 1, 2017. Id.
Plaintiff stated she last worked part-time as a gate guard for Charleston County Park. Tr. at 33-34. She testified she had previously worked six hours a day, five days a week at Ruby Tuesday. Tr. at 34.
Plaintiff testified she was unable to work due to pain related to bending, walking, turning, and lifting. Id. She stated she had “lost of a lot of muscle.” Id. She indicated she had difficulty focusing and concentrating. Id. She described pain in her right hip and lower back. Id. She said she was no longer taking medication, as she had tried multiple medications that were ineffective and caused liver damage. Id. She stated she would “deal with the pain” and “cry throughout the day.” Id. She denied being under medical treatment. Id.
Plaintiff testified she could sit for six or seven minutes, prior to needing to shift positions. Tr. at 35. She said she could stand for 10 to 15 minutes at a time. Id. She estimated she could walk for “20 feet maybe” on level ground. Id. She said she had received treatment for psychological problems following her father's death in 2013. Id. She indicated her doctor had taken her off medication for her mental health during the prior year. Tr. at 35-36.
Plaintiff said she lived alone in a house and managed her own personal care, except that she could not bend to shave her legs. Tr. at 36. She testified she could dust, sweep, use the dishwasher, and take clothes to the washer in multiple trips, but could not do it all in one day. Id. She said she could shop for light items and had to stop often while doing so. Id. She indicated she spent her days watching television and people watching while sitting outside. Tr. at 37.
Plaintiff testified she had left her job in 2012 to care for her father prior to his death. Id. She said her father had sustained several falls and reached a point where he could no longer be left alone. Id. She stated she did everything for her father prior to his death, including bathing him and transporting him to medical visits. Id.
Plaintiff stated she still experienced some pain in her neck, but her hip pain was worse. Id. She said she had right shoulder pain, but could treat it with ice and a change of position. Tr. at 38. She said she was right-handed. Id. She indicated she had felt pain over a two-year period due to fractured ribs, but they had healed. Id.
Plaintiff testified she ate only once a day, sat in the dark often, and did not call or speak with anyone unless the other person reached out first. Id. She said her lack of insurance and inability to afford medical treatment prevented her from seeing a doctor. Id. She indicated she had used an inheritance from her father to cover her living expenses until she returned to work in 2016. Id. She said a boyfriend supported her financially in 2017, but left her in 2018. Tr. at 39. She stated she subsequently had a roommate, who helped with expenses until she discovered he was stealing from her and evicted him. Id. She noted she had used federal stimulus money to meet her expenses, and her daughter had helped her most recently. Id. She indicated she was still a patient at the free clinic, but had not been there since the start of the pandemic. Id. She said the free clinic would not see her while her personal injury lawsuit related to the January 2017 MVC was pending. Id. She indicated the case had settled two weeks prior, and she was scheduled to return to the free clinic on September 24. Id.
b. Vocational Expert Testimony
Vocational Expert (“VE”) Mark A. Stebnicki, Ph.D., reviewed the record and testified at the hearing. Tr. at 40-41. The ALJ noted Plaintiff had not performed any job at the SGA level over the prior 15-year period. Tr. at 40. He described a hypothetical individual of Plaintiff's vocational profile who could perform light work requiring no climbing of ladders or scaffolds; occasional climbing of ramps and stairs, balancing, kneeling, crouching, and crawling; frequent stooping; no exposure to work hazards; concentration sufficient in two-hour increments to perform simple, repetitive tasks; occasional and casual contact with the general public; and occasional changes in work setting and procedure. The VE testified that the hypothetical individual could perform light work with a specific vocational preparation (“SVP”) of 2 as a stock checker, Dictionary of Occupational Titles (“DOT”) No. 222.687-010, a dry cleaner, DOT No. 589.685-038, and a housekeeper, DOT No. 323.687-014, with 73, 000, 41, 000, and 454, 000 positions in the national economy, respectively. Tr. at 40-41. The VE confirmed his testimony was consistent with the DOT. Tr. at 41.
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 March 31, 2018.
2. The claimant has not engaged in substantial gainful activity since January 1, 2017, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: degenerative disc disease, degenerative joint disease, depression and anxiety (20 CFR 404.1520(c) and 416.920(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, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work (described as requiring lifting and carrying 20 pounds occasionally and 10 pounds frequently as well as an ability to stand, sit, and walk each for 6 hours in an 8-hour workday) with no climbing ladders/scaffolds; occasional climbing ramps/stairs, balancing, kneeling, crouching, crawling; frequent stooping; and no exposure to work hazards. Additionally, the claimant can concentrate sufficiently in two-hour increments to perform simple, repetitive tasks; occasional and casual contact with the general public; and occasional changes in work setting/procedure.
6. The claimant has no past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on April 18, 1966 and was 50 years old, which is defined as an individual closely approaching advanced
age, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
8. The claimant has a limited education (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disability because the claimant does not have past relevant work (20 CFR 404.1568 and 416.968).
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, 404.1569(a), 416.969, and 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from January 1, 2017, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).Tr. at 14-23.
II. Discussion
Plaintiff alleges the ALJ's RFC assessment is not supported by substantial evidence.
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, 416.920. 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), 416.920(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, 416.925. 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), 416.920(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, 416.926; 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), 416.920(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), 416.920(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 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
Plaintiff argues substantial evidence does not support the ALJ's RFC assessment. [ECF No. 18 at 8]. She maintains the ALJ did not adequately support his conclusion that she could meet the individual function requirements of light work, given her impairments, the objective findings, her progressive treatment methods, and her alleged limitations. Id. at 10-11. She claims the ALJ ignored important evidence from her last visit with Dr. Highsmith. Id. at 11-12. She maintains the ALJ focused on perceived inconsistencies in her reports that were not actually inconsistent and engaged in a character evaluation, despite language in SSR 16-3p that explicitly noted such evaluation was inappropriate in assessing a claimant's statements as to her symptoms. Id. at 12.
The Commissioner argues substantial evidence supports the ALJ's RFC assessment. [ECF No. 20 at 9]. She maintains the ALJ accounted for all of Plaintiff's credibly-established limitations, discussing the evidence, offering a logical explanation for his findings, and reaching a conclusion as to her RFC. Id. She contends the ALJ provided a thorough narrative discussion of Plaintiff's subjective allegations, testimony, and the medical evidence. Id. at 10. She claims the ALJ relied on the correct regulatory framework in assessing Plaintiff's RFC, citing to 20 C.F.R. § 404.1545 and § 416.945 and SSR 96-8p. Id. at 11. She contends the ALJ considered all the evidence, but was not required to refer to every piece of evidence in his decision. Id. at 12. She maintains Plaintiff did not demonstrate that her physical and mental limitations were greater than those the ALJ included in the RFC assessment. Id. She argues substantial evidence supports the ALJ's evaluation of Plaintiff's subjective symptoms, as he referred to the objective findings, her statements, and her ADLs and accounted for the limitations that were supported by the record. Id. at 13-15.
The claimant's RFC represents the most she can still do, despite limitations imposed by her impairments and symptoms. 20 C.F.R. §§ 404.1545(a), 416.945(a). It must be based on all the relevant evidence in the case record. SSR 96-8p, 1996 WL 374184, at *2.
The ALJ must identify the limitations and restrictions imposed by the claimant's medically-determinable impairments and engage in a function-by-function assessment of her work-related abilities. SSR 96-8p, 1996 WL 374184, at *1. An ALJ's failure to engage in the function-by-function analysis may cause him to “overlook limitations and restrictions that would narrow the ranges and types of work an individual may be able to do.” Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015). The ALJ must consider the claimant's ability to meet the physical, mental, sensory, and other requirements of work on a regular and continuing basis, meaning “8 hours a day, for five days a week, or an equivalent work schedule.” SSR 96-8p, 1996 WL 374184, at *1; see also 20 C.F.R. §§ 404.1545(a) (4), (b), 416.945(a)(4), (b).
A claimant's allegations as to pain and other symptoms must be considered in accordance with 20 C.F.R. § 404.1529 and § 416.929 and Social Security Ruling (“SSR”) 16-3p in assessing her RFC. The ALJ must explain which of the claimant's alleged 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, 2017 WL 5180304, at *8. “Under the regulations implementing the Social Security Act, an 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), (c)); see also 20 C.F.R. § 416.929(b), (c). “First, the ALJ looks for objective medical evidence showing a condition that could reasonably produce the alleged symptoms.” Id. at 866 (citing 20 C.F.R. § 404.1529(b)); see also 20 C.F.R. § 416.929(b). If the adjudicator concludes the impairment could reasonably produce the symptoms the claimant 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 the claimant's ability to perform basic work activities.” Id. (citing 20 C.F.R. § 404.1529(c); see also 20 C.F.R. § 416.929(c). The second determination requires the adjudicator to consider “whether there are any inconsistencies in the evidence and the extent to which there are any conflicts between [the claimant's] statements and the rest of the evidence, including [the claimant's] history, the signs and laboratory findings, and statements by [the claimant's] medical sources or other persons about how [her] symptoms affect [her].” 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4). If the evidence supports a finding that the claimant's medically determinable impairments could reasonably be expected to cause her alleged symptoms, the claimant is “entitled to rely exclusively on subjective evidence to prove” his symptoms are “so continuous and/or so severe that [they] prevent him from working a full eight hour day.” Hines v. Barnhart, 453 F.3d 559, 565 (4th Cir. 2006). This does not prevent the ALJ from declining to fully credit the claimant's allegations by referring to specific evidence of inconsistencies in the record.
The ALJ must include a narrative discussion explaining the restrictions included in the RFC assessment. SSR 96-8p, 1996 WL 374184, at *7. The narrative discussion should reference specific medical facts, such as medical signs and laboratory evidence, and non-medical evidence, including daily activities and observations. Id. The adjudicator “must explain how any material inconsistencies or ambiguities in the case record were considered and resolved.” Id.; see also Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013) (“The record should include a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence.”) (citing Hines v. Bowen, 872 F.2d 56, 59 (4th Cir. 1989)).
The ALJ included in the RFC assessment a provision for light work, among other conditions. See Tr. at 17. He noted it was “described as requiring lifting and carrying 20 pounds occasionally and 10 pounds frequently as well as an ability to stand, sit, and walk each for 6 hours in an 8-hour workday.” Id. He found the state agency consultants' opinions that Plaintiff could perform light work “generally persuasive.” Tr. at 21. The ALJ wrote that he had “specifically considered the claimant's combination of severe physical impairments (degenerative disc disease and degenerative joint disease) in concluding the claimant restricted to light work with the previously detailed postural and environmental limitations.” Tr. at 22.
Pertinent to Plaintiff's argument, “[l]ight 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), 416.967(b). Assessment of a claimant's exertional capacity requires evaluation of the seven strength demands: sitting, standing, walking, lifting, carrying, pushing, and pulling. SSR 96-8p, 1996 WL 374184, at *5. The ALJ must consider each function separately, even if the RFC assessment ultimately combines functions. Id. The ALJ may only express the claimant's exertional capacity by category after having undertaken the function-by-function analysis. SSR 96-8p, 1996 WL 374184, at *5.
Although the ALJ “described” the requirements of light work in the RFC assessment, he did not explain how he reached his conclusions as to Plaintiff's ability to perform each of the strength demands of light work. Nowhere in the decision did he explain why he specifically found Plaintiff could sit for up to six hours, stand for up to six hours, walk for up to six hours, lift up to 10 pounds frequently and up to 20 pounds occasionally, carry up to 10 pounds frequently and up to 20 pounds occasionally, push up to 10 pounds frequently and up to 20 pounds occasionally, and pull up to 10 pounds frequently and up to 20 pounds occasionally.
The ALJ wrote the following as to Plaintiff's subjective allegations: “As for the claimant's statements about the intensity, persistence, and limiting effects of her symptoms, while there is evidence of an impairment that could reasonably be expected to cause some back pain, the rather extreme limitations alleged by the claimant are not found to be supported by objective evidence.” Tr. at 19.
Because the ALJ concluded Plaintiff's impairments could reasonably produce the symptoms she alleged, Plaintiff was permitted to rely exclusively on subjective evidence to prove her allegations as to the intensity, persistence, and limiting effects of her symptoms. See Hines, 453 F.3d at 565. However, the ALJ referenced evidence he considered inconsistent with Plaintiff's statements, including records from a January 27, 2017 exam, her report of improved ROM and benefits from physical therapy in 2017, normal EMG and NCS in August 2017, an MRI in November 2017, a November 2017 orthopedic exam, a June 2019 MRI of the right hip, and Dr. Kolehma's observations during the July 2019 consultative exam. Tr.at 19-20. He wrote:
I take notice of the fact that the claimant's report that she is able to shop for light things is inconsistent with her allegation that she can only walk 20 feet, because the walk from most parking lots is greater than 20 feet. I also note that the claimant's lack of
work history does not suggest a strong motivation to be actively engaged in the workforce.Tr. at 20. He considered Dr. Kolehma's opinion that Plaintiff should limit standing and walking to 15 minutes at a time, “but did not find it persuasive as the limitations appeared to be based primarily on subjective complaints including antalgic gait, which, of course, can be somewhat subjectively controlled.” Tr. at 21.
The ALJ cited evidence obtained during physical exams and diagnostic testing as inconsistent with Plaintiff's subjective allegations, Tr. At 19-20, but he did not explain how the evidence was inconsistent or how it suggested Plaintiff had the ability to meet the strength demands of light work. He referenced negative findings, including Plaintiff's denial of numbness, tingling, or weakness; normal strength; full ROM; no edema of the extremities; intact sensation and DTRs in the extremities; a report of improved ROM with physical therapy; normal EMG and NCS; normal alignment of the cervical spine without muscle atrophy; 5/5 strength in the neck, shoulders, arms, and fingers; negative SLR on the left; 5/5 strength in the hips, knee, ankles, and feet; ability to get in and out of the chair and on and off the exam table during the consultative exam; 2+ and equal pulses in all extremities with no clubbing, cyanosis, or edema; functional ROM in the lumbar and cervical spines, bilateral shoulders, elbows, wrists, hips, knees, and ankle; no tenderness, swelling, deformity, or instability in most joints; normal ROM of the fingers; normal hand and finger joints; and normal grasp and pincer grip. Tr. at 19-20. However, he also cited positive findings, including Plaintiff's complaints of back and hip pain; MRI findings of mild mid-lumbar spondylosis with no significant stenosis; bilateral paraspinal TTP; bilateral paracervical TTP; active ROM of the cervical spine limited by pain; positive SLR on the right; antalgic gait; pain with motion of the lumbar spine; MRI showing mild right and moderate left hip joint narrowing with shallow osteophytes; loss of lumbar lordosis; TTP over the gluteus maximus, gluteus medius, and trochanteric bursa; pain in internal and external rotation and flexion of the right hip; and 4/5 strength in the right hip. Id. In the absence of the ALJ's explanation, it is impossible for the court to determine how the combination of positive and negative findings supported the RFC for light work.
In addition, the ALJ failed to address other evidence that supported Plaintiff's allegations, including findings of decreased sensation of the knee, medial and lateral leg, and dorsum of the foot on the right; interpretation of the results of the MRI of the right hip as showing active degeneration; observations of palpable muscle spasms; notations of diminished sensation in the anterior thighs; and positive FABER test. See Tr. at 606, 609, 610, 615- 16, 618-19, 621-22, 625, 628, 647, 731, 735, 736, 738-39, 741-42, 743-44. Prior to finding Plaintiff's “statements concerning the intensity, persistence, and limiting effects of [her] symptoms [were] not entirely consistent with the medical evidence and other evidence in the record, ” Tr. at 19, the ALJ referenced the March 2017 MRI, noting it “revealed a bulge at ¶ 5-6 with mild ventral cord flattening with severe right and moderately severe left foraminal stenosis; annular bulge at ¶ 6-7 with mild ventral cord flattening and moderate left foraminal stenosis; and minimal lumbar degenerative changes without disc herniation or stenosis.” Tr. at 18. He did not address whether this MRI report was consistent with Plaintiff's allegations. The ALJ's failure to address evidence contrary to his conclusion as to the consistency of Plaintiff's statements and the other evidence of record reflects an impermissible cherrypicking of the evidence. See Lewis, 858 F.3d at 869 (“An ALJ has the obligation to consider all relevant evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding.”) (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010).
The Fourth Circuit has found an ALJ's failure to engage in a function-by-function assessment does not always require remand, particularly where an individual's ability to perform certain functions is not contested. See Mascio, 780 F.3d at 636 (stating “[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.”); Dowling v. Commissioner of Social Security Administration, 986 F.3d 377, 389 (4th Cir. 2021) (noting the court's reluctance to announce in Mascio a rule requiring remand in all cases in which ALJ's failed to engage in function-by-function analysis was intended to prevent ALJs from having to “discuss functions that [were] irrelevant or uncontested.”). However, the record contained evidence as to Plaintiff's ability to engage in prolonged standing and walking that the ALJ did not satisfactorily resolve. While the ALJ specifically rejected Dr. Kolehma's opinion that Plaintiff should limit standing and walking to 15 minutes at one time, Tr. at 794, as “appear[ing] to be based primarily on subjective complaints.” Tr. at 21, he did not reconcile his conclusion with Dr. Kolehma's impression of no conflicting evidence or inconsistencies during the exam. He also failed to note Dr. Kolehma's opinion that Plaintiff should limit standing and walking to 15 minutes at one time differed from the 10-minute limitation Plaintiff reported to her, suggesting the opinion was not based entirely on the subjective complaints. He further neglected to address other evidence, including Plaintiff's descriptions of increased pain with prolonged standing and walking to her treating medical providers, prior to assessing the RFC for light work. See Tr. at 650, 730, 732, 734, 738, 792. He suggested Plaintiff “subjectively controlled her” antalgic gait, Tr. at 20, presumably to indicate a greater degree of functional limitation to Dr. Kolehma, but he did not resolve this conclusion with PA Bukowsky's, Dr. Patel's, and Dr. Steele's observations of impaired gait during multiple treatment visits. See Tr. at 606, 609, 612, 616, 625, 628, 652, 654, 788.
The ALJ failed to consider Plaintiff's efforts to obtain treatment and the progressive nature of the treatment she received. A claimant's “[p]ersistent attempts to obtain relief of symptoms, such as increasing dosages and changing medications, trying a variety of treatments, [or] referrals to specialists, . . . may be an indication that an individual's symptoms are a source of distress and may show that they are intense and persistent.” Arakas, 983 F.3d at 102 (citing SSR 16-3p, 2016 WL 1119029, at *8)). The evidence reflects that Plaintiff consistently sought treatment for back and neck pain beginning in January 2017, subsequently sought consistent treatment for hip pain, treated with a pain management specialist and a neurosurgeon, and underwent progressive treatment modalities that included physical therapy, a variety of medications, steroid injections, and surgery. The ALJ erred in failing to consider this evidence, which is specified in the regulations as relevant to evaluation of a claimant's subjective allegations. See 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3).
The ALJ's determination that Plaintiff's testimony that she could only walk 20 feet was inconsistent with her testimony as to her ability to shop for light things fails to reflect his contemplation of the qualifying statements she provided as to both. The Fourth Circuit has declared “[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). This means that if an ALJ considers the activities a claimant can perform, he must also ponder any qualifying statements regarding the limited extent to which she can perform them. Arakas, 983 F.3d at 99. Here, the ALJ did not address Plaintiff's indication that she had to stop often while shopping for light items or that she only estimated her ability to walk, responding to the question as to how far she could walk on level ground before she would have to stop with “I'd say 20 feet maybe.” Tr. at 35. Plaintiff's testimony was not inconsistent on its face, as she could reasonably be expected to engage in light shopping while stopping to rest after walking approximately 20 feet.
Although the Social Security Administration (“SSA”) previously considered the credibility of a claimant's statements pursuant to the now-rescinded SSR 96-7p, SSR 16-3p eliminates use of the term “credibility” and clarifies that subjective symptom evaluation is not an examination of an individual's character. Pursuant to SSR 16-3p:
Adjudicators must limit their evaluation to the individual's statements about his or her symptoms and the evidence in the record that is relevant to the individual's impairments. In
evaluating an individual's symptoms, our adjudicators will not assess an individual's overall character or truthfulness in the manner typically used during an adversarial court litigation.2017 WL 5180304, at *11. The ALJ erred in discounting Plaintiff's statements as to the intensity, persistence, and limiting effect of her symptoms based on her “lack of work history, ” Tr. at 20, as this was not evidence in the record that was relevant to Plaintiff's impairments. See id.
“A necessary predicate to engaging in substantial evidence review is a record of the basis for the ALJ's ruling.” Radford, 734 F.3d at 295 (citing Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984). The ALJ failed to address relevant evidence and cited irrelevant evidence in evaluating Plaintiff's statements, resulting in an erroneous evaluation of the intensity, persistence, and limiting effects of her impairments. He failed to specifically address and resolve evidence as to Plaintiff's ability to perform functions required for light work and did not adequately explain how the evidence supported his RFC assessment. For these reasons, the undersigned recommends the court find substantial evidence does not support the ALJ's decision.
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.
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).