Opinion
C/A 9:20-cv-02197-MGL-MHC
10-06-2021
Angela May, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge.
Plaintiff Angela May (May) filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the Administrative Law Judge's (ALJ's) final decision denying her claim for disability insurance benefits (DIB) under the Social Security Act (Act). This case was referred to the undersigned for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.). For the reasons that follow, the undersigned recommends that the ALJ's decision be affirmed.
I. BACKGROUND
May applied for DIB in June 2017, alleging disability caused by back problems and pain in her hands, shoulders, arms, and left leg. R.pp. 12, 108. The agency denied her application initially and on reconsideration. R.pp. 92-123, 107-21. At May's request, an ALJ held a hearing in June 2019, where May and a vocational expert testified. R.pp. 31-64. Following the hearing, the ALJ James Cumbie denied May's claim in an order dated July 3, 2019. R.p. 9-30. The Appeals Council denied review, making it a final decision. R.pp. 1-8. This appeal followed.
Because this Court writes primarily for the parties who are familiar with the facts, the Court dispenses with a lengthy recitation of the medical history from the relevant period. To the extent specific records or information are relevant to or at issue in this case, they are addressed within the Discussion section below.
II. APPLICABLE LAW
A. Scope of Review
Jurisdiction of this Court is pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Under § 405(g), judicial review of a final decision regarding disability benefits is limited to determining (1) whether the factual findings are supported by substantial evidence, and (2) whether the correct legal standards were applied. 42 U.S.C. § 405(g); Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002) (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)). Accordingly, a reviewing court must uphold the final decision when “an ALJ has applied correct legal standards and the ALJ's factual findings are supported by substantial evidence.” Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2017) (internal quotation marks omitted).
“Substantial evidence” is an evidentiary standard that is not high: it is “more than a mere scintilla” and means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). A reviewing court does not reweigh conflicts in evidence, make credibility determinations, or substitute its judgment for that of the ALJ. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ].” Id. (alteration in original) (internal quotation marks and citation omitted). However, this limited review does not mean the findings of an ALJ are to be mechanically accepted, as the “statutorily granted review contemplates more than an uncritical rubber stamping of the administrative action.” Howard v. Saul, 408 F.Supp.3d 721, 725-26 (D.S.C. 2019) (quoting Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969)).
B. Social Security Disability Evaluation Process
To be considered “disabled” within the meaning of the Social Security Act, a claimant must show that he has an impairment or combination of impairments which prevent him from engaging in all substantial gainful activity for which he is qualified by his age, education, experience, and functional capacity, and which has lasted or could reasonably be expected to last for a continuous period of not less than twelve months. See 42 U.S.C. § 423. The Social Security Administration established a five-step sequential procedure in order to evaluate whether an individual is disabled for purposes of receiving benefits. See 20 C.F.R. §§ 404.1520, 416.920; see also Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015) (outlining the questions asked in the five-step procedure). The burden rests with the claimant to make the necessary showings at each of the first four steps to prove disability. Mascio, 780 F.3d at 634-35. If the claimant fails to carry his burden, he is found not disabled. Lewis v. Berryhill, 858 F.3d 858, 861 (4th Cir. 2017). If the claimant is successful at each of the first four steps, the burden shifts to the Commissioner at step five. Id.
At the first step, the ALJ must determine whether the claimant has engaged in substantial gainful activity since his alleged disability onset date. 20 C.F.R. §§ 404.1520(b), 416.920(b). At step two, the ALJ determines whether the claimant has an impairment or combination of impairments that meet the regulations' severity and duration requirements. Id. §§ 404.1520(c), 416.920(c). At step three, the ALJ considers whether the severe impairment meets the criteria of an impairment listed in Appendix 1 of 20 C.F.R. part 404, subpart P (the “Listings”) or is equal to a listed impairment. If so, the claimant is automatically eligible for benefits; if not, before moving on to step four, the ALJ assesses the claimant's residual functional capacity (RFC). Id. §§ 404.1520(d), (e), 416.920(d), (e); Lewis, 858 F.3d at 861.
The RFC is “the most the claimant can still do despite physical and mental limitations that affect her ability to work.” Mascio, 780 F.3d at 635 (internal quotation marks and citations omitted).
At step four, the ALJ determines whether, despite the severe impairment, the claimant retains the RFC to perform his past relevant work. 20 C.F.R. §§ 404.1520(e), (f), 416.920(e), (f). If the ALJ finds the claimant capable of performing his past relevant work, he is not disabled. Id. §§ 404.1520(f), 416.920(f). If the exertion required to perform the claimant's past relevant work exceeds his RFC, then the ALJ goes on to the final step.
At step five, the burden of proof shifts to the Social Security Administration to show that the claimant can perform other jobs existing in significant numbers in the national economy, considering the claimant's age, education, work experience, and RFC. Id. §§ 404.1520(g), 416.920(g); Mascio, 780 F.3d at 634-35. Typically, the Commissioner offers this evidence through the testimony of a vocational expert answering hypotheticals that incorporate the claimant's limitations. Mascio, 780 F.3d at 635. “If the Commissioner meets her burden, the ALJ finds the claimant not disabled and denies the application for benefits.” Id.
III. DISCUSSION
A. ALJ's findings
The ALJ employed the statutorily-required five-step sequential evaluation process to determine whether May was disabled from the alleged onset date of March 11, 2016. The ALJ found, in pertinent part:
1. The claimant last met the insured status requirements of the Social Security Act on December 31, 2018.
2. The claimant did not engage in substantial gainful activity during the period from her alleged onset date of March 11, 2016 through her date last insured of December 31, 2018 (20 CFR 404.1571 et seq.).
3. Through the date last insured, the claimant had the following severe impairments: rotator cuff impairment, spine dysfunction, and obesity (20 CFR 404.1520(c)).
4. Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled 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, I find that, through the date last insured, the claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b). The claimant can never climb ladders, ropes and scaffolds and frequently reach, kneel and balance.
6. Through the date last insured, the claimant was unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on April 28, 1965 and was 53 years old, which is defined as an individual closely approaching advanced age, on the date last insured (20 CFR 404.1563).
8. The claimant has a limited 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. Through the date last insured, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 CFR 404.1569 and 404.1569a).
11. The claimant was not under a disability, as defined in the Social Security Act, at any time from March 11, 2016, the alleged onset date, through December 31, 2018, the date last insured (20 CFR 404.1520(g)).R.pp. 15-25.
B. May's contentions of error
May argues various alleged errors stemming from the ALJ's evaluation of opinion evidence. ECF No. 13 at 24-27. Specifically, May argues the ALJ improperly evaluated the opinion of Dr. Jacobus, a doctor who provided a medical source opinion at May's request. See R.pp. 405, 415.
Effective March 27, 2017, numerous social security regulations and social security rulings (SSRs) were amended or superseded, making the new regulations applicable to claims filed on or after March 27, 2017. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 FR 5844-01, 2017 WL 168819 (Jan. 18, 2017), corrected by 82 Fed.Reg. 15132-01, 2017 WL 1105368 (Mar. 27, 2017). Because May's claim for benefits was filed “on or after” March 27, 2017, the ALJ was required to evaluate her application under 20 C.F.R. §§ 404.1520c and 416.920c.
Social Security Rulings, or “SSRs, ” are “interpretations by the Social Security Administration of the Social Security Act.” Pass v. Chater, 65 F.3d 1200, 1204 n.3 (4th Cir. 1995). They do not carry the force of law but are “binding on all components of the Social Security Administration, ” 20 C.F.R. § 402.35(b)(1), as well as on ALJs when they are adjudicating Social Security cases. See Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1224 (9th Cir. 2009).
Under the new regulations, the ALJ is not to defer to or give any specific weight to medical opinions based on their source. 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Rather, ALJs are instructed to consider and evaluate the persuasiveness of the opinion evidence by considering the following factors: (1) supportability, (2) consistency, (3) relationship with the claimant, (4) specialization, and (5) other factors that tend to support or contradict the opinion. 20 C.F.R. §§ 404.1520c(b), (c), 416.920c(b), (c). Supportability and consistency are the most important factors to consider, and an ALJ must explain how these factors are considered in the determination or decision. See 20 C.F.R. §§ 404.1520c(a), (b)(2), 416.920c(a), (b)(2). The ALJ may, but is not required to, explain how the other factors are considered. 20 C.F.R. §§ 404.1520c(b)(2), (c), 416.920c(b)(2), (c).
This effectively does away with the so called “Treating Physician Rule” under the provisions of 20 C.F.R. §§ 404.1527(c)(2) and 416.927(c)(2), whereby an ALJ was directed to give controlling weight to the opinion of a treating physician if it was well supported by medically-acceptable clinical and laboratory diagnostic techniques and was not inconsistent with the other substantial evidence of record. In addition, 20 C.F.R. §§ 404.1527(c)(5) and 416.927(c)(5) provided that ALJ's should “generally give more weight to the opinion of a specialist about medical issues related to his or her area of specialty than to the opinion of a medical source who is not a specialist.”
This represents another significant departure from the requirements of 20 C.F.R. §§ 404.1527(c) and 416.927(c), whereby, if the ALJ declined to accord controlling weight to the treating physician's opinion, he was to weigh the medical opinions of record based on all of the following factors: (1) examining relationship; (2) treating relationship; (3) supportability; (4) consistency; (5) specialization; and (6) other factors that tended to support or contradict the opinion.
In evaluating the supportability factor, “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion . . . the more persuasive the medical opinions . . . will be.” 20 C.F.R. §§ 404.1520c(c)(1); 416.920c(c)(1). “Supportability” denotes “[t]he extent to which a medical source's opinion is supported by relevant objective medical evidence and the source's supporting explanation.” Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed.Reg. 5844-01, 5853, 2017 WL 168819 (Jan. 18, 2017); see also 20 C.F.R. §§ 404.1520c(c)(1); 416.920c(c)(1).
As for the consistency factor, “[t]he more consistent a medical opinion . . . is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) . . . will be.” 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2). In other words, “consistency” denotes “the extent to which the opinion is consistent with the evidence from other medical sources and nonmedical sources in the claim.” Revisions to Rules, 82 Fed.Reg. at 5853; see also 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(1).
Although these amended regulations do away with the idea of assigning “weight” to medical opinions, the ALJ's reasons for finding the opinion of a medical source unpersuasive still must be supported by substantial evidence. The United States Court of Appeals for the Fourth Circuit has repeatedly stated that “[a]n 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)); see also Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 98 (4th Cir. 2020). Moreover, an ALJ continues to have an obligation to “include a narrative discussion describing how the evidence supports each conclusion.” Monroe v. Colvin, 826 F.3d 176, 190 (4th Cir. 2016) (quoting Mascio, 780 F.3d at 636); see also SSR 96-8p, 1996 WL 374184 at *7 (S.S.A. July 2, 1996) (“The RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).”). Similarly, remand may be appropriate when the courts are left to guess at how the ALJ arrived at the conclusions and meaningful review is frustrated. Mascio, 780 F.3d 636-37. The ALJ must “build an accurate and logical bridge from the evidence to his conclusions.” Monroe, 826 F.3d at 189.
Here, in evaluating Dr. Jacobus's opinion, the ALJ stated:
On May 31, 2017, Dwight Jacobus, D.O. opined the claimant would be able to perform sedentary work, with no lifting over ten pounds, no pushing and pulling and the ability to change positions frequently (Exhibit B7F, p. 4). On February 12, 2018, Dr. Jacobus opined the claimant would be limited to sedentary work, with lifting no more than ten pounds, she could not perform repetitive motion of the shoulder, she could sit for two hours at a time for a total of 4-6 hours out of an eight-hours workday if she could change positions at will (Exhibit B10F).
Dr. Jacobus's assessment is not persuasive as the treatment history with the claimant is remote in time and [h]is current evaluation was performed at the request of her representative. These limitations are not supported by subsequent physical exam findings showing good strength in her upper and lower extremities, good grip strength, negative straight leg raising and intact gait maneuvers. This opinion is not supported by the claimant's diagnostic tests showing some DDD [degenerative disc disease] in the lumbar spine but with only a suggestion of subtle compression of the nerve root at ¶ 4-5 and no acute abnormalities, as well as DDD of the thoracic spine without any acute abnormalities or severe stenosis. Finally, this opinion is inconsistent with the claimant's daily activities, including her ability to care for herself, drive, care for her pets, care for her husband that was ill and her grandchildren, prepare her own meals, clean the house and mow the lawn on the riding lawnmower, go shopping in stores, and go to doctors' appointments (Exhibits B4E, B11F).R.pp. 20-21.
Initially, the undersigned notes that all of the purported errors stem from the ALJ's evaluation of Dr. Jacobus's opinion-that is, there are no other allegations of error outside of the ALJ's assessment of this opinion evidence. Specifically, May argues that the ALJ's findings were “unreasonable” because (1) the ALJ indicated the treatment history was “remote in time” and the ALJ mentioned that the opinion was obtained at the request of May's attorney; (2) the record contained other evidence that supported Dr. Jacobus's opinion, and therefore the ALJ's finding that Dr. Jacobus's opinion was unsupported was error; (3) the ALJ improperly “second guessed” Dr. Jacobus's opinion by interpreting raw medical data; and (4) the ALJ improperly considered May's activities of daily living as a means to discount Dr. Jacobus's opinion. For the reasons that follow, none of these alleged errors warrant remand.
1. The ALJ properly considered Dr. Jacobus's opinion under the new regulations, and his decision was not “unreasonable.”
As an initial matter, the undersigned notes that May does not definitively argue that the ALJ did not adhere to the new regulations while assessing Dr. Jacobus's opinion. Other than a single citation to § 404.1520c, see ECF No. 13 at 20, May does not present any argument as to what factors the ALJ improperly considered or failed to address. Indeed, May suggests that Dr. Jacobus's opinion is entitled to “no less weight” than other opinions, invoking the language of the old regulations that are not applicable here and citing to case law that analyzed ALJ decisions under the old standards. See ECF No. 13 at 25.
In any event, to the extent May seems to suggest that the ALJ's opinion ran afoul of the new regulations, the undersigned finds no error. Neither the ALJ's mention of treatment history being remote in time nor the mention of May's attorney requesting the medical source opinion were error under the regulations. Rather, both considerations speak to the supportability factor an ALJ must consider. Certainly, the proximity in time as to Dr. Jacobus's last treatment with May is relevant in determining the supportability of Dr. Jacobus's conclusions. See 20 C.F.R. § 404.1520c(c)(1). Thus, contrary to May's suggestion, an ALJ may consider the remoteness of a doctor's treatment when evaluating a medical source statement from that doctor. See Joseph M. v. Kijakazi, No. 1:20-CV-3664-DCC-SVH, 2021 WL 3868122, at *11 (D.S.C. Aug. 19, 2021) (“The remoteness of Dr. Esce's treatment, his speculation as to Plaintiff's limitations a year after his surgery, and his failure to generate and produce the statement on his own are relevant to the supportability factor.”), report and recommendation adopted sub nom. Maness v. Kijakazi, No. 1:20-CV-3664-DCC, 2021 WL 3860638 (D.S.C. Aug. 30, 2021). Likewise, May's argument that the ALJ erred when he mentioned that the opinion was obtained at the request of May's attorney is also unpersuasive. See Id. (“The record reflects that Plaintiff's counsel, his employees, or individuals who contracted with him interviewed Dr. Esce and memorialized the interview in the statement Dr. Esce signed. Although the method by which the opinion was acquired does not suggest it was unreliable, it is reasonable that the ALJ considered it as providing less support than if Dr. Esce had produced it independently.” (internal citation omitted)).
Here, the ALJ properly adhered to the new regulations, and substantial evidence supports his fact-finding. Specifically, the ALJ assessed the persuasiveness of Dr. Jacobus' opinion and explained how the factors of supportability and consistency were considered. R.pp. 20-21. 20 C.F.R. § 404.1520c(b)(2), (c)(1)-(2). Based on this consideration, the ALJ found Dr. Jacobus's opinion “not persuasive.”
Moreover, both alleged “errors” also speak to the relationship with the claimant factor, something else an ALJ must consider. See 20 C.F.R. §§ 404.1520c(c)(3) (noting, as to the relationship with the claimant, ALJs consider the “length of the treatment relationship, ” the “[f]requency of examinations, ” the “[p]urpose of the treatment relationship, ” the “[e]xtent of the treatment relationship, ” and whether the source has examined the claimant). May has failed to show how either of these alleged errors were incorrect under the regulations, such that remand is warranted. See Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2017) (noting, to warrant remand, a claimant must either show the ALJ has incorrectly applied a legal standard or show the ALJ's factual findings are not supported by substantial evidence). Accordingly, the Court recommends affirming as to this issue.
2. The ALJ properly considered other evidence in the record when evaluating Dr. Jacobus's opinion.
May points to other evidence in the record that supports her position, arguing:
The ALJ found Dr. Jacobus's opinions were “not supported by subsequent physical exam findings showing good strength in her upper and lower extremities, good grip strength, negative straight leg raising and intact gait maneuvers.” But while Dr. Prostko's 9/19/18 visit, which the ALJ cites, did show normal muscle strength, grip, and gait these one-time findings do not erase the positive findings in the record. Indeed, in addition to Dr. Jacobus's own positive findings in his examination, the Commissioner's own examiner, Dr. Korn, found May to have muscle weakness and decreased grip.ECF No. 13 at 25-26 (internal record cites omitted).
May has failed to show error here. The ALJ's discussion of other findings in the record that were inconsistent with Dr. Jacobus's opinion illustrates his consideration of the consistency factor under the new regulations. See 20 C.F.R. § 404.1520c(c)(2) (“The more consistent a medical opinion . . . is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion . . . will be.”). This is not improper; rather, this is precisely what the ALJ is supposed to do. See Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (“Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ].” (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996))).
To the extent May argues other evidence in the record supports her position, this Court may not overturn a decision that is supported by substantial evidence just because the record may contain conflicting evidence. See Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996) (“We must sustain the ALJ's decision, even if we disagree with it, provided the determination is supported by substantial evidence . . . [t]he duty to resolve conflicts in the evidence rests with the ALJ, not with a reviewing court.”). It is the job of the ALJ to weigh evidence and resolve any evidentiary conflicts, not this Court. Johnson, 434 F.3d at 653 (“In reviewing for substantial evidence, we do not undertake to reweigh conflicting evidence, make credibility determinations, or substitute our judgment for that of the [ALJ].”). May merely presents to this Court her disagreement with the ALJ's findings. Accordingly, the Court recommends affirming as to this issue.
3. The ALJ did not improperly interpret raw medical data.
May argues that the ALJ improperly “played doctor” when deciding that Dr. Jacobus's opinion was unpersuasive. Specifically, May takes issue with a single sentence where the ALJ found Dr. Jacobus's opinion was “not supported by the claimant's diagnostic tests showing some DDD in the lumbar spine but with only a suggestion of subtle compression of the nerve root at ¶ 4-5 and no acute abnormalities, as well as DDD of the thoracic spine without any acute abnormalities or severe stenosis.” R.pp. 20-21. May maintains that this amounts to the ALJ improperly interpreting raw medical data for himself and pitting that interpretation against Dr. Jacobus's interpretation. This argument is without merit.
Certainly, ALJs cannot play the role of doctor. See Murphy v. Astrue, 496 F.3d 630, 634 (7th Cir. 2007) (recognizing “that an ALJ cannot play the role of doctor and interpret medical evidence when he or she is not qualified to do so”). However, this portion of the ALJ's decision is merely a summary of the medical impressions of the physicians who reviewed May's diagnostic tests. See R.pp. 21, 434. That is, the ALJ was summarizing the doctor's interpretations of the medical data, not interpreting it for himself. Indeed, May's focus on this single sentence in this portion of the ALJ's decision ignores the broader discussion of May's diagnostic tests, which the ALJ reviewed earlier in his decision:
This is consistent with the limitations indicated by the other evidence in this case. While the medical evidence of record reveals that the claimant has degenerative disc disease (DDD) of the lumbar and thoracic spine and issues with the left rotator cuff, the evidence of record does not support the severity of symptoms, as alleged, prior to the date last insured. An x-ray of the left shoulder in March 2014 was normal (Exhibit B6F, p. 19).
On May 22, 2017, an x-ray of the thoracic spine showed some degenerative changes but only mild hypertrophic changes and no acute findings (Exhibit BlF, p. 16). An x-ray of the cervical spine on September 8, 2017 was normal (Exhibit B3F, p. 13).
Most recent tests of the lumbar spine, including an x-ray of the lumbar spine on October 11, 2018 showed moderate hypertrophic DDD at ¶ 4-S but with normal SI joints (Exhibit B9F, p. 2). A MRI of the lumbar spine on October 26, 2018 showed DDD at ¶ 4-5, without significant change from prior examination, shallow central disc protrusion at ¶ 3-4 with unchanged borderline central canal stenosis, left lateral recess narrowing suggestive of subtle compression at ¶ 5 nerve root but otherwise no lateral recess and only mild foraminal narrowing at ¶ 4-5 with no effacement of the L4 nerve roots (Exhibit Bl2F, p. 3).
Moreover, objective examinations, showed some decreased range of motion in the cervical and lumbar spine as well as the shoulders as well as some pain with straight leg raising; however, most consistently, the claimant was noted to be in no acute distress, her heart and lung sounds were normal, she had otherwise good range of motion in her upper and lower extremities, her sensation was intact, her reflexes were symmetrical, her gait maneuvers were normal, she had a normal gait and station and although on one occasion, the claimant was noted to have decreased grip strength, subsequent records showed the claimant's grip strength to be normal (Exhibits B4F, B11F).
These objective and diagnostic test findings are not consistent with the alleged incapacitating impairments and indicate the claimant's impairments may not be as severe or debilitating as alleged. Rather, they support the claimant's ability to perform light work[.]R.p. 19.
Consequently, the ALJ did not interpret raw medical data. See Smith v. Colvin, No. 6:15-CV-1750-PMD-KFM, 2016 WL 2619474, at *3 (D.S.C. May 9, 2016) (noting the “ALJ's finding that the MRI was unremarkable except for moderate right hip effusion” was not “a lay interpretation of an MRI” but instead was “an accurate summary of notes made by the radiologist who reviewed the MRI”). Rather, the ALJ relied on the physicians' interpretations of the data, and then used those interpretations later in the opinion when assessing the persuasiveness of Dr. Jacobus's opinion-precisely what the regulations contemplate. See 20 C.F.R. § 404.1520c(b), (c). Thus, the undersigned recommends affirming as to this issue.
4. The ALJ properly considered May's activities of daily living.
Finally, May argues that the ALJ improperly relied on her activities of daily living when considering the persuasiveness of Dr. Jacobus's opinion. Specifically, May asserts that “when relying on her activities to reject Dr. Jacobus's opinions, the ALJ failed to reconcile the difficulty that May had in performing various daily activities.” ECF No. 13 at 27.
When considering the intensity and persistence of a claimant's symptoms, such as pain, and determining the extent to which a claimant's symptoms limit her capacity for work, the regulations provide that an ALJ will consider relevant factors such as a claimant's “daily activities.” 20 C.F.R. § 404.1529(c)(3)(i). However, “[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) (emphasis in original).
The Fourth Circuit has held that merely listing a claimant's activities does not automatically equate to substantial evidence if those activities were “minimal daily activities” qualified by the claimant in ways that do not contradict claims of disabling pain. See Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 269-70 (4th Cir. 2017). By “minimal, ” the court described activities such as cooking, driving, and household chores that caused the claimant great pain or required intermittent periods of rest. See id.
Here, in assessing the persuasiveness of Dr. Jacobus's opinion, the ALJ noted that the opinion was inconsistent with May's daily activities. The ALJ noted that in addition to caring for herself, May cared for her pets, sick husband, and young grandchildren. R.pp. 255-62. She could drive, prepare meals, clean the house, mow the lawn on a riding lawnmower, shop, and go to doctors' appointments. R.pp. 21, 257-58.
However, as May correctly notes, the ALJ did omit some qualifying language when listing May's daily activities. For example, May points out that while she can mow the lawn on a riding mower, she noted “the next day [her] back hurts [her] so bad.” R.p. 257. Additionally, at the hearing, May explained that she doesn't “drive too far because of sitting and going over bumps and [her] hands going numb on the steering wheel.” R.p. 51. She further testified to having problems shopping because it is “hard for [her] to lift bags, try to pick up items. [She] can't stoop, because if [she] stoop[s] [she] won't get back up.” R.p. 51.
Nevertheless, the Court is unpersuaded by May's argument for two reasons. First, earlier in the decision, when the ALJ was initially discussing May's daily activities, the ALJ stated, “[w]ithout significant limitations on her activities of daily living, I believe the claimant overstated the impact of her medically determinable impairments.” R.p. 20 (emphasis added). Notably, the ALJ did not state that May's activities of daily living were without limitations entirely; rather, he implicitly acknowledged that May did have some limitations when going about her daily life- they were just not significant enough to impede her from performing light work. Thus, the ALJ did consider the limitations May had in her daily activities.
Second, and perhaps more importantly, the ALJ's mere omission of qualifying language does not automatically necessitate remand, despite May's suggestion. The relevant inquiry is whether the ALJ's assessment of Dr. Jacobus's opinion is ultimately supported by substantial evidence. Thus, it boils down to whether the ALJ's reliance on other evidence besides May's daily activities supported his determination as to the persuasiveness of Dr. Jacobus's opinion.
The Court notes that May does not cite to any case law in her brief that would support this contention. Indeed, she does not cite to any case law at all regarding her activities of daily living argument.
Here, as already discussed above, the ALJ also relied on medical records (such as (1) subsequent physical exam findings showing good strength in her extremities and (2) diagnostic tests showing no acute abnormalities or severe stenosis) that did not support Dr. Jacobus's opinion. See 20 C.F.R. § 404.1520c(c)(1)-(5). The ALJ also considered the remoteness of Dr. Jacobus's treatment history with May. See Id. Although the Court agrees that the ALJ's brief discussion of May's daily activities could have been more thorough, substantial evidence ultimately supports the ALJ's persuasiveness evaluation of Dr. Jacobus's opinion. See Henson v. Berryhill, No. 1:15-cv-00123-RJC, 2017 WL 5195882, at *8 (W.D. N.C. Nov. 9, 2017) (rejecting a Brown based argument and finding that while “the ALJ did not accurately recount the limitations put forth on Plaintiff's daily activities, he nonetheless recounted medical evidence to support his conclusion that Plaintiffs testimony was not entirely credible”); see also Biestek, 139 S.Ct. at 1154 (noting substantial evidence is an evidentiary standard that is not high: it is “more than a mere scintilla” and means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion”). Therefore, the Court recommends affirming on this issue.
As already noted, May does not cite to Brown or any case law supporting her argument in this portion of her brief. To the extent she may seek to rely on Brown, that case is distinguishable from May's situation. In Brown, the Fourth Circuit concluded that the ALJ had committed a plethora of errors that warranted remand. Unlike the ALJ in Brown, the ALJ here did not mischaracterize the other medical evidence, nor rely on evidence contradicted by the record, nor rely on a medical opinion that conflicted even with the ALJ's own determinations, nor reject the “consistent opinions of [five] treating and examining sources.” See Brown, 873 F.3d at 266-72. In short, while in Brown there were numerous errors compounding the failure to describe accurately the extent of the claimant's activities of daily living, the same problems do not exist in this case that would undermine the substantial evidence supporting the ALJ's decision-especially when considering the allegations of error here are confined to only the ALJ's persuasiveness assessment of one doctor's opinion.
IV. RECOMMENDATION
For the foregoing reasons, it is RECOMMENDED that the decision of the Commissioner be AFFIRMED.
The parties are directed to the next page for their rights to file objections to this 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
Post Office Box 835
Charleston, South Carolina 29402
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).