Opinion
C/A No.: 1:17-cv-02251-RMG-SVH
10-18-2018
Stacy Renarda Moore, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
This appeal from a denial of social security benefits is before the court for a Report and Recommendation ("Report") pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her claim for Disability Insurance Benefits ("DIB") 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 18, 2014, Plaintiff filed applications for DIB and SSI in which she alleged her disability began on August 1, 2007. Tr. at 176-79 and 180-89. Her applications were denied initially and upon reconsideration. Tr. at 54-73 and 76-99. On December 10, 2015, Plaintiff had a hearing before Administrative Law Judge ("ALJ") Edward T. Morriss. Tr. at 36-49 (Hr'g Tr.). The ALJ issued an unfavorable decision on February 3, 2016, finding Plaintiff was not disabled within the meaning of the Act. Tr. at 18-35. 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 1-7. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on August 24, 2017. [ECF No. 1].
B. Plaintiff's Background and Medical History
1. Background
Plaintiff was 45 years old at the time of the hearing. Tr. at 39. She completed the twelfth grade. Id. Her past relevant work ("PRW") was as a cook, cashier, housekeeper or childcare giver, bus driver, and patient transporter. Tr. at 97-98, 678. She alleges she has been unable to work since February 10, 2014. Tr. at 678.
Plaintiff amended her alleged onset date from August 1, 2007, to February 10, 2014, through her representative prior to the hearing date. Tr. at 678.
2. Medical History
a. Evidence Submitted to the ALJ
On March 29, 2013, Plaintiff presented to University Hospital, part of the Medical University of South Carolina ("MUSC"), with complaints of abdominal pain, nausea, vomiting, and diarrhea. Tr. at 695-701. Plaintiff reported nausea and vomiting every morning for the prior month, as well as increased epigastric pain and unintended weight loss over the prior few months. Tr. at 695-96, 699. Plaintiff also reported fevers and chills in the forty-eight hours prior to her hospital visit. Id. Plaintiff's blood sugar was 550 with a minimal gap of 13, her last hemoglobin A1C was 16.6, and her urine tested positive for ketones. Tr. at 699-700. Plaintiff was given two liters of fluid, and the gap closed. Id. Plaintiff was diagnosed with starvation ketosis, uncontrolled diabetes, dehydration, and hypertension. Tr. at 700-01. She responded to medication and was placed back on her home dose of Levemir. Tr. at 700. The treatment notes indicated that the rapid normalization of her sugars suggested she may not have been compliant with her home regimen of insulin. Id. Plaintiff was instructed to follow up with the Franklin C. Fetter Clinic ("F.C. Fetter"). Tr. at 701.
The prior medical records reveal Plaintiff visited an emergency room to remove a foreign substance from her eye that flew out of a garbage disposal on March 15, 2013. Tr. at 701-703, 770-78.
On April 2, 2013, Susan Barnes, a registered nurse at the University Hospital, attempted to follow up with Plaintiff, but only spoke with a friend. Tr. at 694. The friend reported Plaintiff "continued to experience occasional nausea and vomiting" and was instructed to have her contact her primary care provider. Id.
On May 26, 2013, Plaintiff presented to University Hospital with abdominal pain, nausea, vomiting, diarrhea, and a syncopal episode, reporting pain intensity of 7/10. Tr. at 691-93. Plaintiff's children witnessed her lose consciousness for a few seconds and fall to the floor. Tr. at 692. Plaintiff was 5'1" and 270 pounds with a body mass index ("BMI") of 51.02. Id. The notes from Plaintiff's visit indicated her syncopal event and abdominal pain were likely secondary to her vomiting and dehydration. Tr. at 694. Plaintiff's lab results were within normal limits. Id. Plaintiff was given fluids and nausea medication intravenously and was discharged with instructions to follow up with her primary care provider. Id.
On May 29, 2013, Plaintiff visited F.C. Fetter. Tr. at 801-04. The notes stated Plaintiff was a "43 year-old with [diabetes mellitus] for several years, but poorly compliant who comes for follow up after months of not being seen." Tr. at 801. Plaintiff reported her recent syncopal episodes. Id. The notes from the visit indicated she had symptoms of gastroparesis. Id. Plaintiff was assessed for diabetes, diabetic gastroparesis, obesity, and abdominal pain. Tr. at 803. Plaintiff's A1C was 14.3. Tr. at 787.
On July 3, 2013, Plaintiff presented to F.C. Fetter, complaining of dizziness when her glucose was closer to normal values. Tr. at 797-800. Charles Effiong, M.D. ("Dr. Effiong"), explained to Plaintiff that her dizziness was likely autonomic neuropathy. Tr. at 797. Plaintiff weighed 265 pounds and "was applauded for weight loss." Tr. at 797-98. Plaintiff was assessed for diabetic gastroparesis, diabetes, and autonomic neuropathy. Tr. at 799. Dr. Effiong noted Plaintiff's diabetes mellitus was not adequately controlled and increased Novolog. Tr. at 799-800.
On August 26, 2013, Plaintiff presented to F.C. Fetter for hypertension and complained of dizziness and feeling lightheaded for one week. Tr. at 794-96. Dr. Effiong ordered lab tests and the results revealed Plaintiff's A1C was 14.3. Tr. at 787.
On November 6, 2013, Plaintiff presented to University Hospital after a syncopal episode. Tr. at 688. Plaintiff reported she had episodes of lightheadedness at work in prior months, but had never passed out. Id. During the episode, Plaintiff had a heavy feeling in her chest, took a few steps, and lost consciousness, but was unsure how long she was unconscious. Id. When she awoke, she had right hip pain. Tr. at 691. Her electrocardiogram ("EKG") showed no ischemic changes and no ectopy. Id. Plaintiff's blood sugar was in the high 200s, and it was unclear whether she was dehydrated. Id. Plaintiff was given intravenous fluids and felt better. Plaintiff was advised to keep track of her blood sugar and drink plenty of fluids. Id.
On February 16, 2014, Plaintiff presented to University Hospital with complaints of losing consciousness. Tr. at 684. Plaintiff reported she had been passing out for over a month, but was unsure how long she had been unconscious during those episodes. Id. Plaintiff indicated she was "under a lot of stress at work[.]" Id. She had hyperglycemia with a glucose level of 487. Id. The physical exam notes indicated Plaintiff could walk without difficulty, but she had bilateral paresthesia in her feet. Tr. at 685. The clinical impression was syncope. Tr. at 687. Plaintiff was given intravenous fluids, and her blood glucose level improved. Id. She reported improvement and was discharged. Id.
On February 17, 2014, Plaintiff presented to F.C. Fetter to follow up on her fall. Tr. at 790-93. Plaintiff reported numbness in both feet, an unsteady gait, and frequent falls. Tr. at 790. Plaintiff also reported her symptoms were aggravated by movement, resting, standing, and walking, with no relieving factors. Id. Dr. Effiong stressed the importance of controlling Plaintiff's diabetes mellitus. Id. Dr. Effiong assessed diabetes mellitus, obesity, diabetic neuropathy, and polyneuropathy in diabetes. Tr. at 793.
On March 13, 2014, Plaintiff presented to F.C. Fetter. Tr. at 788-89. Dr. Effiong noted Plaintiff was a "44-year-old with poorly controlled [diabetes mellitus] with complications including severe neuropathy. Comes in following a recent fall at her home in the hallway." Tr. at 788. Dr. Effiong reviewed Plaintiff's lab results and scheduled a follow-up appointment. Tr. at 789.
On March 25, 2014, Plaintiff presented to F.C. Fetter Family Health Center for a gynecologist visit. Tr. at 783-85. Sharon Bullard, a family nurse practitioner, noted Plaintiff had insomnia and instructed her to schedule a follow-up visit with Dr. Effiong for diabetes mellitus in June 2014. Tr. at 784-85.
On April 5, 2014, Plaintiff presented to MUSC complaining of right leg pain, which she described as sharp and constant in the posterior aspect of her calf and up the back of her leg. Tr. at 805-10. Plaintiff reported swelling of her leg with numbness and tingling. Id. Plaintiff's blood pressure was 164/104. Tr. at 806. The physical exam showed minimal appreciable swelling of Plaintiff's right leg, joint swelling, and a gait problem. Id. Plaintiff's pain was exacerbated by a straight leg raise ("SLR") test. Id. Plaintiff's strength was four out of five on the right. Id. Dr. Brett W. McGary, M.D. ("Dr. McGary"), noted the most likely cause of Plaintiff's pain was an exacerbation of her peripheral neuropathy, as it appeared her glucose levels were not adequately controlled due to the increased insulin. Tr. at 807. He also noted she would likely benefit from neuropathic modulating or receptor medications. Id.
On May 2, 2014, Bernard Arnold, O.D. ("Dr. Arnold"), completed a vision exam of Plaintiff for a "South Carolina Vocational Rehabilitation Department Disability Determination Services Medical Summary." Tr. at 815-18. Plaintiff reported blurred vision and inability to drive. Tr. at 816. In the diagnosis and prognosis section, Dr. Arnold noted Plaintiff needed a prescription for reading glasses and her vision was stable. Tr. at 818. Dr. Arnold opined Plaintiff's mobility, visual activities, and fundus photography were normal. Id. Dr. Arnold also opined Plaintiff's work-related activities were "normal (somewhat)," and he recommended a "GDx or equivalent due to CUD/DISC Rati." Id.
On May 5, 2014, Hugh Wilson, M.D. ("Dr. Wilson"), a state agency consultant completed a physical residual functional capacity ("RFC") assessment. Tr. at 57-73. He indicated Plaintiff had the following limitations: occasionally lift, carry, push or pull twenty pounds; frequently lift, carry, push, or pull ten pounds; stand, walk, or sit with normal breaks for about six hours; frequently stoop, kneel, crouch, and crawl; and never climb ladders, ropes, or scaffolds. Tr. at 59-60. In addition, he opined Plaintiff should avoid concentrated exposure to hazards, such as machinery or heights, because she "[m]ay have dizziness from uncontrolled [blood sugar]." Tr. at 60-61.
On May 5, 2014, Lisa Clausen, Ph.D. ("Dr. Clausen"), a state agency consultant completed a psychiatric review technique ("PRT") assessment, finding Plaintiff was never diagnosed with depression or prescribed medication for mental health, such that she did not reach the level of a medically-determinable impairment. Tr. at 58, 68.
On May 19, 2014, Plaintiff returned to F.C. Fetter for a follow-up appointment with Dr. Effiong. Tr. at 824. Plaintiff reported she quit her job because of neuropathic pain and had difficulty standing due to pain and weakness in her leg. Id. Plaintiff reported she had fallen twice in the prior few weeks. Id. Plaintiff also reported having nausea and vomiting daily, being stressed due to lack of work and her medical conditions, and not sleeping. Id. Dr. Effiong noted Plaintiff would need magnetic resonance imaging ("MRI") of her lower back, as she had a positive SLR test, which potentially indicated ongoing disc disease. Tr. at 827. Plaintiff was instructed to check her blood sugar once a day, check her feet daily, and follow a prescribed diet. Id. Dr. Effiong assessed diabetes mellitus, gastroparesis, obesity, autonomic neuropathy, and insomnia. Id. Dr. Effiong increased Novolog and Reglan and started Gabapentin. Id.
On June 18, 2014, Plaintiff presented to MUSC with complaints of constant fatigue, abdominal pain, non-bloody vomiting, and non-bloody diarrhea for five to six days. Tr. at 861. Plaintiff reported she had been off her diabetic medication since losing her job. Id. Plaintiff also indicated she had not taken her Novolog because she had not felt like eating. Tr. at 869. During the physical exam, Plaintiff was tender in the epigastric area. Tr. at 863. Plaintiff's glucose was 558, which decreased to 226 with the medications given in the emergency room. Tr. at 863-64, 869. An x-ray of Plaintiff's abdomen showed no acute intrathoracic or abdominal process. Tr. at 923. The clinical impression recorded during Plaintiff's visit was hyperglycemia, nausea and vomiting, and diarrhea. Tr. at 869. It was noted the primary care provider at F.C. Fetter "had utilized social work to help [Plaintiff] pay for [L]evemir and [N]ovolog" and she would have them "filled by Friday." Id.
On July 10, 2014, Angela Saito, M.D. ("Dr. Saito"), a state agency consultant completed a physical RFC assessment upon Plaintiff's request for reconsideration. Tr. at 82-97. She adopted the same exertional limitations as Dr. Wilson, but opined Plaintiff had the following additional postural and environmental limitations: occasionally climb ramps or stairs; occasionally balance, stoop, kneel, crouch, or crawl; and avoid all exposure to hazards, such as "[u]nprotected hts for Endocrine imp." Tr. at 83-84. Dr. Saito limited the RFC assessment to the period of February 10, 2014, to February 10, 2015. Tr. at 82, 94. Moreover, Dr. Saito provided the following additional explanation within her report:
On July 8, 2014, Olin Hamrick, Jr., Ph.D. ("Dr. Hamrick"), a state agency consultant completed a PRT assessment upon Plaintiff's request for reconsideration, finding there were no alleged worsening or new mental conditions or evidence relevant to a mental rating and affirming the initial decision that there was no mental medically-determinable impairment. Tr. at 81.
Endo - Severe. Poorly controlled DM with evid of EOD disease. see neuro and GI below.
Neuro - Severe. Autonomic neuropathy or other cause for Syncope/Falling. Curious that clmt is not seen day of the falls or syncope but a few days later. Has not had complete evaluation or been referred to specialists yet. Neuropathic pain in leg is a new symptom. MRI of Lumbar spine ordered 5/19/14 for positive SLT. MSK was o/w nl.
GI - Mention of Gastroparesis on 5/14. Admitted 3/13 for "starvation ketosis". Clmt's regular 5/13 wt 273 with BMI 40.31. Not severe.
Vision - n/s 5/2/14 Vision CE - c/o blurred vision. w/o correction 20/30 bilat near 20/25. Mobility normal. work related activities normal. visit normal.
Pain and limitations of leg pain are partially credible. Atypical of diabetic neuropathy. W/u for lumbar radiculopathy has been initiated with 5/14 order of MRI. Has not had trials of medications for neuropathic pain as of yet.
Clmts sxs of blurred vision is credible but not to the degree she has stated. Has 20/30 VA bilat. Could be result of high BS.
MSS from Bernard Arnold that work related activities based on patient's mobility and visual activities are normal (somewhat). Great wt is given to this provider as it is not inconsistent with the majority of objective evidence in the file. It is unclear why Mr Arnold wrote "somewhat". This may be due to clmt's level III obesity or possible blurred vision due to poorly controlled DM.
Clmt has a severe endocrine imp with some possible end organ disease. She is undergoing a work up for peripheral neuropathy
v. lumbar radiculopathy. Her evaluation has been incomplete. With further investigation and compliance with appropriate treatment, clmt should be capable of the RFC as outlined within one year.Tr. at 84, 96 (emphasis added).
On September 14, 2014, Plaintiff presented to Walter E. Limehouse, M.D. ("Dr. Limehouse"), at MUSC with complaints of blurred vision, fatigue, polydipsia, and polyphagia for the prior week, noting she had been compliant with treatment most of the time. Tr. at 870-80. Although Plaintiff was taking insulin as prescribed, her blood glucose level had been 400 or higher. Tr. at 870. The recorded clinical impression was hyperglycemia and dehydration. Tr. at 880. Plaintiff was given fluids and medication. Id.
On September 24, 2014, Plaintiff presented to MUSC with complaints of high glucose, abdominal pain, nausea, and vomiting. Tr. at 881-90. Plaintiff reported her gastroparesis symptoms had been bad and she had not been eating much, so she had not taken her Novolog in two weeks. Id. The recorded clinical impression was hyperglycemia without ketosis. Tr. at 889. Plaintiff's blood glucose improved from over 500 to 282 with fluids and insulin, noting the hyperglycemia was likely from not taking Novolog for two weeks. Id.
On November 21, 2014, Plaintiff presented to MUSC after experiencing two syncopal events in two days. Tr. at 890-96. Plaintiff reported her blood glucose had been in the 400s, but as low as 60 to 80 at night. Id. Plaintiff admitted she had stopped taking Novolog, as she had not been eating, but she continued to take Levemir. Id. Plaintiff's blood pressure was 160/92, and her glucose was greater than 500. Tr. at 891-93. Plaintiff's syncope presentation was consistent with orthostasis. Tr. at 895. She was given fluids and insulin, and her blood glucose level lowered to 280. Id. The recorded clinical impressions were hyperglycemia, vasovagal syncope, type two diabetes mellitus, nausea and vomiting, and leg pain. Id. Results of an EKG reflected: sinus tachycardia, possible left atrial enlargement, left ventricular hypertrophy, nonspecific T wave abnormality, abnormal ECG, and, "when compare[d] with ECG taken on June 18, 2014, nonspecific T wave abnormality [was] now evident in lateral leads." Tr. at 926.
On December 9, 2014, Plaintiff began treatment with Don A. Schweiger, M.D. ("Dr. Schweiger"), for uncontrolled diabetes. Tr. at 834. Plaintiff reported she had lost over 100 pounds in the prior eight months, and Dr. Schweiger noted she weighed 230 pounds, which was still significantly overweight. Id. Plaintiff also reported she had no appetite, vomited everything, had weakness, and experienced stomach pain. Id. Dr. Schweiger suspected diabetic gastroparesis. Id. Dr. Schweiger's exam showed significant diabetic retinopathic changes. Id. Dr. Schweiger's assessment was diabetes mellitus, abdominal pain, hypertension, and diabetic gastroparesis. Tr. at 834-35. He adjusted Plaintiff's medications by stopping Norco; continuing Phenergan, Levemir Flexpen, and Novolog; and starting Tramadol, Lisinopril, and Metoclopramide. Tr. at 835. Dr. Schweiger scheduled a follow-up appointment for Plaintiff because he needed medical records from MUSC and F.C. Fetter. Id.
At the follow-up appointment with Dr. Schweiger on December 16, 2014, Plaintiff reported her nausea after meals persisted, although she had seen some improvement after starting Reglan. Tr. at 836-38. Plaintiff continued to report abdominal pain after eating. Id. Her glucose was 545. Id. Dr. Schweiger continued Lisinopril, NovoLog, Phenergan, Metoclopramide, Tramadol; started Lisinopril-Hydrochlorothiazide; increased Plaintiff's Levemir; and referred her to Theodore Gourdin, M.D. ("Dr. Gourdin"), a gastroenterologist, due to "weight loss and poorly controlled diabetes with gastroparesis." Tr. at 836-37. Dr. Schweiger noted Plaintiff was to follow up in one week because there was "no charge until approved for Roper charity." Tr. at 837.
On December 18, 2014, Plaintiff had a computed tomography ("CT") scan of her abdomen and pelvis, which showed the following: (1) small periumbilical hernia with omentum extending into it, no associated dilatation of bowel; (2) multiple small groundglass nodules within the right lower lobe, which were presumed inflammatory; and (3) a small appendicolith within a normal appearing appendix. Tr. at 856-57; 929-30.
On December 23, 2014, Plaintiff saw Dr. Schweiger for a follow-up appointment. Tr. at 839-40. Dr. Schweiger noted,
[H]ere for follow up patient problems or obesity hypertension poorly controlled diabetes diabetic gastroparesis as well as a newly identified pulmonary nodules and right lower lobe she also has hyperlipidemia she is on a host of new medicines and I will adjust some of her medicines as her A1c is 17-1/2. She cannot be seen by endocrine until March. I also referred her to surgery because of a[n] umbilical hernia noted and abdominal pain I [am] not sure that her pain is from . . . hernia [,] other issues are weight loss which I believe is related to poorly controlled diabetes.Tr. at 839. Dr. Schweiger adjusted Plaintiff's medications; assessed hypertension, diabetes mellitus, diabetic gastroparesis, leg pain, hyperlipemia, and pulmonary nodule; and ordered a CT chest imaging, without contrast, for March 23, 2015. Tr. at 839-40; 856-57.
Plaintiff had two biopsies done on January 23, 2015. Tr. at 931-33. One biopsy was of a small bowel mucosa designated duodenum, which showed no diagnostic histologic abnormalities. Tr. at 932. The other biopsy was of a gastric mucosa consistent with antrum and showed inactive chronic gastritis and histologic features consistent with reactive or chemical gastropathy. Id. The biopsy was negative for helicobacter organisms. Id. In addition, Plaintiff had a normal upper endoscopy. Tr. at 931.
On January 28, 2015, Plaintiff presented to Dr. Schweiger for a follow-up appointment. Tr. at 841-44. Plaintiff reported having headaches for three weeks, which she indicated could be caused by her insulin. Tr. at 841. Dr. Schweiger assessed hypertension, diabetes mellitus, diabetic gastroparesis, pulmonary module, and hyperlipemia. Tr. at 842. Dr. Schweiger adjusted medications and ordered several labs, including a basic metabolic panel, hemoglobin A1C lab report, hepatic function panel (liver), and lipid panel. Id.
On February 17, 2015, Plaintiff presented to Simon Watson, M.D. ("Dr. Watson") at MUSC, with complaints of facial pain on the left side of her face and full body aches. Tr. at 896-99. As to her facial pain, Plaintiff reported a sharp pain in the upper aspect of her jaw when she opened and closed her mouth. Id. As to her leg pain, Plaintiff indicated her neuropathy was not well controlled, but she was taking Tramadol for pain. Id. On exam, Plaintiff was tender over the left temporomandibular joint, and the pain was exacerbated by opening and closing her mouth. Tr. at 898. Plaintiff had a normal motor exam in her bilateral lower extremities, but reported subjective decreased sensation to light touch. Id. Plaintiff's gait and stance were normal. Id. The clinical impression was peripheral neuropathy and facial pain. Tr. at 899.
On February 23, 2015, Dr. Gourdin noted Plaintiff had a normal upper endoscopy. Tr. at 931. Dr. Gourdin also noted Plaintiff "overall states that she is doing much better lately" and he "continue[d] her Nexium therapy." Id.
On February 26, 2015, Plaintiff saw Dr. Schweiger for a follow-up appointment. Tr. at 845-48. Plaintiff reported pain on the left side of her face and leg pain, which Dr. Schweiger noted could be diabetic neuropathy. Id. Dr. Schweiger noted his treatment options for Plaintiff had been limited for insurance reasons, as she received Medicaid. Id. He started Gabapentin, Amlodipine Besylate, Crestor and Nexium. Tr. at 846.
On March 5, 2015, Plaintiff became a patient of Sweetgrass Endocrinology and saw Temple W. Simpson, P.A. ("Simpson") upon referral by Dr. Schweiger. Tr. at 957-59. Plaintiff reported she had been diagnosed with diabetes in 2007 or 2008 and felt her diabetes had never been well controlled. Id. Plaintiff reported she started with Metformin, which gave her gastrointestinal issues, then placed on several insulins, and she expressed frustration with her lack of control. Id. Simpson noted Plaintiff had neuropathy, but her kidney function remained intact and her diet consisted of whatever she could tolerate, as she had abdominal pain and vomiting at times. Id. During her examination, Simpson noted the diabetic nephropathy screening was met by Plaintiff "currently on ACE-I or ARE." Id. Simpson assessed Plaintiff for diabetes, hypertension, and hypercholesteremia. Tr. at 958. Simpson continued Plaintiff on Levemir, Novolog, Tradjenta, Lisinopril-Hydrochlorothiazide, Amlodipine Besylate, and Atorvastatin Calcium. Id.
On March 20, 2015, Plaintiff saw Simpson at Sweetgrass Endocrinology for a follow-up appointment. Tr. at 960-61. Simpson noted samples of Janumet and Invokana were given to Plaintiff at the previous visit, but she developed candidiasis. Tr. at 960. Simpson also noted she was not recommending glucagon-like peptide 1 drugs due to Plaintiff's ongoing gastrointestinal issues. Id. Plaintiff's A1C was 10.3, down from 17. Tr. at 961. Simpson continued Plaintiff on Levemir, Novolog, and Janumet. Id.
On March 25, 2015, Plaintiff presented to Dr. Schweiger, complaining of pain in her feet, face, and right leg and rating the pain intensity 10/10. Tr. at 849. Dr. Schweiger attributed Plaintiff's facial pain to neuropathy. Id. Plaintiff took Gabapentin and Tramadol for neuropathic pain. Id. Dr. Schweiger noted he believed Plaintiff's abdominal pain was "mostly diabetic gastroparesis [as] she's had a thorough GI workup." Id.
Dr. Schweiger noted Plaintiff underwent a Barium Swallow test by Dr. Wilson the week prior. Tr. at 849.
On April 3, 2015, Plaintiff presented to Dr. David Manning French, M.D. ("Dr. French") at MUSC, with complaints of tightness in her chest, pain in her right arm and flank, and vomiting. Tr. at 899. Plaintiff indicated the pain had been going on for a week and continued to worsen, despite taking Neurontin and Tramadol. Id. Plaintiff reported her blood sugar ranged from 70 to 300 daily. Tr. at 899. Her blood pressure was 172/118 and her glucose was 308. Tr. at 899-901. A chest x-ray showed no evidence of acute or chronic cardiopulmonary disease. Tr. at 903, 924. Plaintiff was given fluids, pain medication, and nausea medication. Tr. at 904. The recorded clinical impressions were chest pain and myalgia. Tr. at 901, 904.
On April 14, 2015, Plaintiff presented to Jeffrey Paul Caporossi, M.D. ("Dr. Caporossi") at MUSC, with complaints of yellow and green emesis and diarrhea. Tr. at 905-09. Plaintiff indicated a blood glucose level in the 200s was "good for her." Id. Plaintiff's blood pressure was 220/137. Tr. at 906. On exam, Plaintiff had mild epigastric tenderness. Tr. at 907. The recorded clinical impressions were emesis and tachycardia. Tr. at 908.
On April 15, 2015, Plaintiff presented to Dr. Limehouse at MUSC and reported she felt worse than she had the prior day. Tr. at 909. Plaintiff also reported she had noticed increased leg pain due to her neuropathy. Id. Plaintiff indicated she had not yet been seen by pain management for her neuropathy. Id. Plaintiff's blood pressure was 166/92. Tr. at 911. She had mild epigastric tenderness to palpation. Id. The clinical impressions were nausea, vomiting, and neuropathy. Tr. at 915. Plaintiff was prescribed Neurontin and Phenergan and referred to pain management. Id.
On April 27, 2015, a CT scan of Plaintiff's chest showed: (1) the presence of two tiny, right, middle lobe nodules, and (2) anterior mediastinal soft tissue density material, which was noted as "probably reactive thymus." Tr. at 858-59. Clinical correlation and follow up were recommended. Tr. at 858.
On April 29, 2015, Plaintiff presented to Dr. Schweiger to discuss her abnormal CT scan. Tr. at 852. Dr. Schweiger noted Plaintiff was also following up on her hypertension diabetes with diabetic gastroparesis and significant diabetic neuropathic pain. Id. Dr. Schweiger also noted Neurontin and Gabapentin were only providing partial relief and Plaintiff could not afford Lyrica. Id. Plaintiff had thymic hyperplasia, which Dr. Schweiger did not believe was thymoma, but he referred Plaintiff to a thoracic surgeon for a second opinion. Id. Dr. Schweiger did not believe Plaintiff's diabetic gastroparesis symptoms were related to the CT scan findings. Id. Dr. Schweiger noted, at 233 pounds, Plaintiff was significantly overweight and needed to get under 200 pounds. Id.
On June 30, 2015, Plaintiff went to Sweetgrass Endocrinology for a follow-up appointment. Tr. at 963-65. Plaintiff reported, since her last office visit, she had nausea and vomiting, which was thought to be due to gastroparesis. Tr. at 963. In addition, Plaintiff lost seven pounds. Tr. at 963. Plaintiff relayed she saw Dr. Gourdin and underwent an esophagogastroduodenoscopy ("EGD") on June 5, 2015, the EGD was normal with no evidence of bezoar, retained food, or pyloric stenosis, and he injected botox into her pylorus. Id. Plaintiff reported her blood sugar had ranged from 300 to 500 recently. Id. Plaintiff indicated she felt poorly when her blood sugar level was in the normal range and would eat, elevating her level. Id. Plaintiff's A1C was too high to read and her glucose was 451. Tr. at 963-64. Simpson noted as follows:
A1c is horrendous—she has recently spiked her sugars for unclear reasons. I suspect the elevated sugars are aggrevating [sic] her gastroparesis? I have discussed with her that she needs to gain glycemic control in order to help control the gastroparesis as well. Even if we can get her sugars down into the 200's consistenlty [sic] for a while in order to allow her thermostat to adjust to recongnizing [sic] that as normal. I have sent her for labs as well to make sure she does not need fluids, etc. She says she has nausea meds from Dr. Gourdin.Tr. at 965.
In addition, on June 30, 2015, Plaintiff presented to Roper St. Francis Healthcare and her glucose level was 451. Tr. at 943-44.
On July 21, 2015, Plaintiff saw Simpson at Sweetgrass Endocrinology for a follow-up appointment. Tr. at 966-67. Simpson stopped Levemir, continued Novolog, started Humulin R U-500, and ordered labs for glucose fasting and C Peptide. Tr. at 967.
In addition, on July 21, 2015, Plaintiff presented to Roper St. Francis Healthcare and her fasting glucose level was 301. Tr. at 945-46.
On August 17, 2015, Plaintiff saw Simpson at Sweetgrass Endocrinology for a follow-up appointment. Tr. at 969-71. Plaintiff lost an additional three and a half pounds, weighing 226.2 pounds, and her glucose was 390. Tr. at 969. Simpson noted the following assessments: diabetes II, with complications, radiculopathy of the leg and upper extremity, hyperlipidemia, headache, arthralgia, myalgia, and neuropathy of foot. Tr. at 970. Simpson continued Novolog, decreased Humulin, and ordered MRIs of Plaintiff's cervical and lumbar spine, without contrast, a lipid panel, and ANA with reflex for arthralgia and myalgia. Tr. at 970-71.
In addition, on August 17, 2015, Plaintiff presented to Roper St. Francis Healthcare and her glucose level was 300. Tr. at 947-50.
On August 27, 2015, Plaintiff underwent a vascular lower arterial plethysmography procedure to further investigate her complaints of leg pain, which was performed at Simpson's request. Tr. at 978-80. The results showed normal resting waveform and toe pressure predicting the ability to heal. Tr. at 980. Plaintiff's right ankle-brachial index ("ABI") was 1.31, predicting a hardening of the arteries, and her left ABI was 1.23. Id.; see also Tr. at 974-77.
Although it appears this medical record was submitted to the Appeals Council as well, Tr. at 2, the record reveals it was sent to the ALJ with other medical records as part of Exhibit 12F on December 8, 2015, just prior to the hearing held on December 10, 2015.
On September 3, 2015, Plaintiff presented to Jeffrey S. Bush, M.D. ("Dr. Bush"), at MUSC, with complaints of nausea and vomiting the prior night's dinner. Tr. at 916. Plaintiff's blood pressure was 132/86. Tr. at 917. The recorded clinical impressions were nausea, vomiting, and hyperglycemia due to type two diabetes mellitus. Tr. at 922. Plaintiff was given fluids and insulin, which improved her hyperglycemia. Id. Plaintiff was prescribed Norco and Zofran. Id.
On September 11, 2015, Plaintiff underwent a cervical spine MRI that showed multi-level foraminal narrowing, but "nothing significant." Tr. at 981-82. Plaintiff also underwent a lumbar spine MRI, which showed mild right L5 foraminal narrowing, moderate right L4 foraminal narrowing, and mild left L4 foraminal narrowing. Tr. at 983-84.
On November 4, 2015, Plaintiff presented to the Roper Hospital Emergency Department with complaints of dehydration. Tr. at 934-40. Plaintiff reported she had been at her endocrinologist and was informed her A1C was elevated, so she needed to go to the emergency room. Id.; Tr. at 973. Plaintiff reported her A1C was 15 and she felt generalized malaise for the prior month. Id. Plaintiff denied any pain, fever, chills, cough, chest pain, shortness of breath, abdominal pain, nausea, vomiting, dysuria, or hematuria. Id. The impression was hyperglycemia. Tr. at 936. Plaintiff was instructed to follow a strict diabetic diet and discharged. Id.
In addition, on November 4, 2015, Plaintiff presented to Roper St. Francis Healthcare and her glucose level was 422. Tr. at 951. Her glucose results were 475 at 14:52, 346 at 16:22, and 216 at 17:25. Tr. at 951-55.
b. Evidence Submitted to the Appeals Council
Plaintiff submitted "a medical source statement from [Dr. Schweiger], dated December 29, 2015 (4 pages); MRI results from St. Francis Hospital, dated February 27, 2015 and September 9, 2015 (6 pages); a bilateral arterial evaluation from Roper St. Francis Healthcare, dated August 27, 2015 (2 pages); and office treatment notes from Roper St. Francis Physician Partners, dated September 18, 2015 and February 10, 2016 (2 pages)." Tr. at 2. The Appeals Council found the evidence did not show a reasonable probability that it would change the outcome of the decision and did not consider or exhibit the evidence. Id.
In addition, Plaintiff "submitted emergency room records from Roper Hospital, dated August 4, 2016 through August 6, 2016 (41 pages)." Id. The Appeals Council noted the ALJ decided Plaintiff's case through February 3, 2016, and found the evidence did not relate to the period at issue. Id.
C. The Administrative Proceedings
1. The Administrative Hearing
a. Plaintiff's Testimony
At the hearing on December 10, 2015, Plaintiff testified she was born on January 20, 1970, was 45 years old, and had completed the twelfth grade. Tr. at 39. She explained she had been unable to return to work because of severe pain due to diabetic neuropathy. Tr. at 39-40.
She testified she had trouble maintaining her blood sugar levels, despite medication adjustments, and had gastrointestinal problems, causing vomiting every morning. Tr. at 40. She received Botox injections in her stomach every three months to relax it. Id. Plaintiff relayed, according to her doctors, her body resisted insulin. Tr. at 40-41. She indicated her pancreas was not making enough insulin, so her doctors recommended an insulin pump. Tr. at 41. However, she could not afford it because her partial Medicaid did not cover diabetes care. Id. She indicated she had received some charitable care to help with other costs. Id.
Plaintiff testified she had constant pain in her feet that got worse at times. Id. She explained she could sit for a while, but the pain would travel up and down her legs and feet or her feet would go numb if she sat too long, resulting in falls when she stood. Tr. at 41-42. She stated she was fearful of going out because of previous falls. Tr. at 42. She testified she did not walk very much, was unable to eat, and had lost over 160 pounds throughout this process. Id. She said her weight loss should have helped regulate her diabetes, but it had not. Tr. at 42-43.
Plaintiff testified her life had changed, as she could not move around, clean, or cook. Id. She could load the dishwasher or washing machine, but was unable to stand and fold laundry. Tr. at 43, 45. She fatigued easily and could only be active for 40 minutes before she had to stop and rest for two hours. Tr. at 43. She testified she lived with her husband and two sons and did not do much during the day, but her family did the shopping, completed most of the chores, and supported her financially. Tr. at 43-46. She testified her husband helped her out of the shower because she had "quite a few falls" in the shower. Tr. at 44. Although she previously drove a little, she had not driven at all for the prior couple months due to poor vision. Tr. at 46.
She had trouble concentrating because of severe pain, stating her "mind doesn't connect right." Tr. at 44. She testified she felt worse when her blood sugars were high. Tr. at 48. She testified she was in severe pain all the time, and her medicine made it bearable, but there was never a day when she felt good. Tr. at 44-45.
2. The ALJ's Findings
In his decision dated February 3, 2016, the ALJ made the following findings of fact and conclusions of law:
1. Claimant meets the insured status requirements of the Social Security Act through December 31, 2018.
2. Claimant has not engaged in substantial gainful activity since February 10, 2014, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. Claimant has the following severe impairment[s]: diabetes with diabetes[-]related gastroparesis and diabetes-related neuropathy (20 CFR 404.1520(c) and 416.920(c)).
4. 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 claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) with some additional non-exertional limitations. Specifically, claimant can lift and carry up to 20 pounds occasionally and 10 pounds frequently. She can stand, walk, and sit for 6 hours each in an 8-
hour day. Claimant can never climb ladders, ropes, or scaffolds. She occasionally can climb ramps and stairs, balance, stoop, kneel, crouch, and crawl.Tr. at 23-29. II. Discussion
6. Claimant is capable of performing past relevant work as a cashier. This work does not require the performance of work-related activities precluded by claimant's residual functional capacity. (20 CFR 404.1565 and 416.965).
7. Claimant has not been under a disability, as defined in the Social Security Act, from February 10, 2014, through the date of this decision (20 CFR 404.1520(f) and 416.920(f)).
Plaintiff alleges the Commissioner erred for the following reasons:
1) the ALJ's credibility analysis is not supported by substantial evidence; and
2) the ALJ failed to consider Plaintiff's impairments in combination.
The Commissioner counters that substantial evidence supports the ALJ's findings and 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:
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 a continuous period of not less than 12 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 (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 the Commissioner can find claimant disabled or not disabled at any step, the Commissioner may make a determination and 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; see Sullivan v. Zebley, 493 U.S. 521, 530-31 (1990); see also Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish her 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 PRW 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. §§ 404.1520(a), (b), (f), 416.920(a), (b), (f); 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 the claimant can perform alternative work and such work exists in the national 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 id.; 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 (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. Richardson, 402 U.S. at 390. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. at 401 (citation omitted); 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). "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]." Johnson, 434 F.3d at 653 (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996)). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed "even should the court disagree with such decision." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
B. Analysis
1. ALJ's Evaluation of Plaintiff's Credibility
Plaintiff argues substantial evidence does not support the ALJ's credibility analysis because her ADLs do not exhibit an ability to perform substantial gainful activity, the normal findings in the cited medical records do not relate to whether Plaintiff was experiencing neuropathic pain, and the ALJ failed to acknowledge her various trips to doctors or the emergency room showed the severity of her symptoms. [ECF No. 13 at 11-14].
The Commissioner counters the ALJ reasonably evaluated Plaintiff's subjective complaints by pointing to the ADLs described in her adult function report, noting she had not taken her medication at some visits, finding there was a lack of abnormal physical findings to support her pain, and recognizing she had embellished her weight loss. [ECF No. 15 at 9-13].
Prior to considering a claimant's subjective complaints, an ALJ must find a claimant has an underlying impairment established by objective medical evidence that would reasonably be expected to cause subjective complaints of the severity and persistence alleged. See 20 C.F.R. §§ 404.1529 (effective Jun. 13, 2011, to Mar. 26, 2017), 416.929 (effective Jun. 13, 2011, to Mar. 26, 2017); SSR 96-7p; Craig, 76 F.3d 585, 591-96 (4th Cir. 1996) (discussing the regulation-based two-part test for evaluating pain). The first part of the test "does not . . . entail a determination of the intensity, persistence, or functionally limiting effect of the claimant's asserted pain." 76 F.3d at 594 (internal quotation omitted). It "requires at the threshold a showing by objective evidence of the existence of a medical impairment 'which could reasonably be expected to produce' the actual pain, in the amount and degree, alleged by the claimant." Id. Second, and only after claimant has satisfied the threshold inquiry, the ALJ is to evaluate "the intensity and persistence of the claimant's pain, and the extent to which it affects her ability to work." Id. at 595.
As aptly noted by the Commissioner in her brief, SSR 16-3p superseded SSR 96-7p and provides that ALJs will conduct this analysis without using the term "credibility," but the effective date (March 28, 2016) postdates the ALJ's decision (February 3, 2016) and neither party has contested its application here. See SSR 16-3P, 2016 WL 1237954; see also 81 Fed. Reg. 14166.
"[T]he adjudicator must carefully consider the individual's statements about symptoms with the rest of the relevant evidence in the case record" in determining whether the claimant's statements are credible. SSR 96-7p. He "must consider the entire case record, including the objective medical evidence, the individual's own statements about symptoms, statements and other information provided by treating or examining physicians or psychologists and other persons about the symptoms and how they affect the individual, and any other relevant evidence in the case record." Id. The ALJ cannot disregard a claimant's statements about symptoms merely because they are not substantiated by objective medical evidence. Id. He must consider the following relevant evidence, in addition to the objective findings, in assessing a claimant's credibility:
(1) the individual's daily activities;
(2) the location, duration, frequency, and intensity of the individual's pain or other symptoms;
(3) factors that precipitate and aggravate the symptoms;
(4) the type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms;Id.; see also 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3).
(5) treatment, other than medication, the individual receives or has received for relief of pain or other symptoms;
(6) any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and
(7) any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms.
After having established the existence of a condition reasonably likely to cause the alleged symptoms, a claimant may "rely exclusively on subjective evidence to prove" the intensity, persistence, and functionally-limiting effects of her symptoms. See Hines v. Barnhart, 453 F.3d 559, 565 (4th Cir. 2006). The ALJ must cite specific evidence to support his credibility finding, and his reasons must be sustained by the evidence of record. Id. His decision must clearly indicate the weight he accorded to the claimant's statements and the reasons for that weight. Id. Although this court must defer to the ALJ's findings of fact, the court is not required to "credit even those findings contradicted by undisputed evidence." Hines, 453 F.3d at 566 (citing Diaz v. Chater, 55 F.3d 300, 307 (7th Cir. 1995) ("An ALJ may not select and discuss only that evidence that favors his ultimate conclusion . . . .")).
Here, the ALJ found Plaintiff's impairments could reasonably be expected to cause the alleged symptoms, but determined her statements "concerning the intensity, persistence and limiting effects" of her symptoms were "not entirely credible for the reasons explained in [his] decision." Tr. at 26. The ALJ's reasons for that adverse credibility finding can be summarized as follows: (a) Plaintiff's statements about the limiting effects of her pain were inconsistent with her statements in an adult function report; (b) the objective medical evidence did not reasonably support the claimed intensity of her pain; and (c) some of her statements were in conflict with other evidence.
a. Plaintiff's ADLs
With respect to the first reason, the ALJ noted Plaintiff "described in a function report engaging in more significant activities than she reported at the hearing. For example, she said in her function report that she prepares simple meals, dusts, vacuums, makes her bed, shops in stores for necessities, handles her own finances, and attends church." Tr. at 28. The ALJ concluded, "[t]he ability to engage in such activities is generally consistent with the demands of [Plaintiff's] assigned [RFC]." Id.
The referenced report was dated March 23, 2014, and completed by Plaintiff's son, Juwan Moore, on Plaintiff's behalf. Tr. at 232. Setting aside the age of the document at the time of the hearing, the fact Plaintiff's son assisted her in completing it, and her worsening condition, the ALJ did not acknowledge the extent of these activities and the limitations described in the form itself. Plaintiff explained her illness "has limit[ed] [her] ability to stand [for a] long period of time, [she is] very unbalance[d] due to the nerve damage in [her] feet" and her "vision is not clear [so she] cant see to use kitchen equipment." Tr. at 225. She noted her illness or condition affected her ability to lift, squat, stand, walk, sit, climb stairs, see, or concentrate and her medication caused her to sweat, shake, cramp, and become drowsy or dizzy. Tr. at 230, 232.
In addition, Plaintiff elaborated on her described activities, explaining she only prepares sandwiches and salads for meals. Tr. at 227. She dusts, vacuums, and makes her bed weekly, taking a "couple hours" to complete these tasks because she has "to sit in between." Id. She explained she does not do other house or yard work because she is "[i]n to[o] much pain to stand or bend." Tr. at 228. She goes shopping for "food, cleaning products, soup, etc." weekly for a couple hours "when [she can] get someone to go with [her]." Id. She explained she can pay bills, count change, handle a savings account, and use a checkbook, but she has to "ask [her] family what th[e] bill is." Tr. at 228-29. She stated she regularly goes to church, the doctor, and the store, but she needs someone to accompany her. Tr. at 229.
As Plaintiff points out in her brief, "[t]hese meager activities, performed sporadically, do not establish the capacity for full-time work." [ECF No. 13 at 13]. This position is supported by decisions of the United States Court of Appeals for the Fourth Circuit ("Fourth Circuit"). See Lewis v. Berryhill, 858 F.3d 858, 868 n.3 (4th Cir. 2017) ("The ALJ points to Lewis' ability to perform incremental activities interrupted by periods of rest, such as 'driv[ing] short distances of up to 30 miles, shop for groceries with the assistance of her mother or roommate, handle her finances, and watch television.' . . . The ALJ's conclusion that Lewis' activities demonstrate she is capable of work is unsupported by the record." (citing Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) ("[D]isability claimants should not be penalized for attempting to lead normal lives in the face of their limitations.")); see also Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 263 (4th Cir. 2017) ("With respect to the first reason for the adverse credibility finding, the ALJ noted that Brown testified to daily activities of living that included 'cooking, driving, doing laundry, collecting coins, attending church and shopping.' . . . The ALJ did not acknowledge the extent of those activities as described by Brown, e.g., that he simply prepared meals in his microwave, could drive only short distances without significant discomfort, only occasionally did laundry and looked at coins, and . . . the ALJ provided no explanation as to how those particular activities—or any of the activities depicted by Brown—showed that he could persist through an eight-hour workday.").
Likewise, the ALJ in this case provided no meaningful explanation as to how Plaintiff's activities, as performed in 2014 (which was prior to her worsening condition and treatment with an endocrinologist throughout the following year), showed she could persist through an eight-hour workday or undermined her credibility.
b. Objective Medical Evidence
The ALJ's decision also noted the objective medical evidence did not support Plaintiff's statements. He acknowledged Plaintiff's doctors treated her with various medications and she had some elevated A1C levels, but noted "[t]reatment records, however, do not regularly document such significantly elevated levels" and "contrary to [Plaintiff's] testimony at the hearing, medical records in evidence do not indicate that [her] providers have considered treating her with an insulin pump." Tr. at 27.
"Hemoglobin A1c is a test that measures the amount of glycated hemoglobin in a person's blood. Individuals with diabetes are encouraged to keep their A1c levels at or below 7%." Leopard v. Astrue, No. CIV.A. 6:10-2562-CMC, 2011 WL 7069557, at *4 n.2 (D.S.C. Dec. 27, 2011) (citing HbA1c, available at http://www.nlm.nih.gov/medlineplus/ency/article/003640.htm); accord A1C test, available at https://www.mayoclinic.org/tests-procedures/a1c-test/about/pac-20384643 ("The A1C test result reflects your average blood sugar level for the past two to three months. . . . The higher your A1C level, the poorer your blood sugar control and the higher your risk of diabetes complications. . . . For most people who have previously diagnosed diabetes, an A1C level of 7 percent or less is a common treatment target. Higher targets of up to 8 percent may be appropriate for some individuals.").
Yet, Plaintiff's medical records frequently documented elevated A1C levels, some so high they could not be read or she was sent from her doctor's appointment to the emergency room. See, e.g., Tr. at 700 (reflecting Plaintiff's past medical history as poorly controlled type two diabetes "with last A1c 16.6" and the current exam revealing her glucose was over 500 with "an A1c of greater than 17" on March 29, 2013); 787 (reflecting A1C was 14.3 on May 29, 2013); 786 (reflecting A1C was 10.9 on August 26, 2013); 839 (reflecting A1C was 17.5 on December 23, 2014); 854 (reflecting AlC was 14.1 on January 28, 2015); 961 (reflecting A1C was 10.3 on March 20, 2015); 963, 965 (reflecting Alc was "too high to read" and "A1c [wa]s horrendous" on June 30, 2015); 934-40, 973 (reflecting Plaintiff was instructed to go to the emergency room because her A1C was so elevated and reporting A1C of 15 on November 4, 2015—one month before the hearing).
In addition, at the hearing, Plaintiff testified "[s]o they're looking into getting me the pump, but I don't have financial insurance to get the pump that I need." Tr. at 41. However, the ALJ noted, "contrary to [Plaintiff's] testimony at the hearing, medical records in evidence do not indicate that [her] providers have considered treating her with an insulin pump." Tr. at 27. Although an insulin pump is not specifically referenced, the undersigned notes Dr. Schweiger, who treated Plaintiff for uncontrolled diabetes, specified in his treatment records, "I've been somewhat limited on[] choices of treatments because of insurance reasons." Tr. at 845. Furthermore, the treatment notes contain references to Plaintiff's financial issues. See, e.g., Tr. at 837 (stating Plaintiff was to follow up in one week because there was "no charge until approved for Roper charity"), 869 (recognizing a primary care provider at F.C. Fetter "had utilized social work to help [Plaintiff] pay for [L]evemir and [N]ovolog" and she would have them "filled by Friday"). Moreover, there is no statement in the record reflecting Plaintiff was not being considered for an insulin pump. Thus, there does not appear to be an inconsistency as suggested by the ALJ.
The ALJ's decision noted Plaintiff had been treated for hyperglycemia and while some treatment notes documented blood sugar readings above 500, she generally did not have ketosis or acidosis, was discharged in improved or stable condition, and "reported during some of her emergency room visits that she had not been taking her diabetes medications." Tr. at 27. Yet, the medical records reveal Plaintiff had numerous elevated glucose levels. See, e.g., Tr. at 965 (reflecting Plaintiff's endocrinologist desired to reduce her blood sugar level "down into the 200's" consistently); 863-64 (noting glucose level was 558 on June 18, 2014); 870 (noting glucose level had been 400 or higher on September 14, 2014); 889 (noting glucose level was 500 on September 24, 2014); 891-93 (noting glucose level was greater than 500 on November 21, 2014); 836-38 (noting glucose level was 545 on December 16, 2014); 943-44, 963-64 (noting glucose level was 451 on June 30, 2015); 951 (noting glucose level was 422 on November 4, 2015).
In addition, Plaintiff reported she had not taken her Novolog medication at times because she was unable to eat due to excessive vomiting or she was off her diabetic medications for a month due to losing her job in 2014. See, e.g., Tr. at 861 (reporting "being off diabetic medications for 1 month since she lost her job"), 869 (indicating she had not taken her Novolog because she had not felt like eating after vomiting or feeling nauseous), 881 (reporting her gastroparesis had been bad and she had not been eating much, so she had not taken her Novolog in two weeks), 890 (admitting she had stopped taking Novolog, as she had not been eating, but continued to take Levemir). SSR 96-7p provides "the adjudicator must not draw any inferences about an individual's symptoms and their functional effects from a failure to seek or pursue regular medical treatment without first considering any explanations that the individual may provide, or other information in the case record, that may explain" the reasons for failing to follow recommended treatment. Yet, here, the ALJ did not consider the reasons contained in Plaintiff's medical records. Furthermore, Plaintiff's improved or stable condition was not quantified.
The ALJ also stated in his decision that, although Plaintiff complained of pain and numbness in her lower extremities, the "treating providers did not regularly document abnormal findings in [Plaintiff's] lower extremities" and the "records document few, if any, abnormal findings relating to sensation, motor strength, range of motion, gait, or balance." Tr. at 27 (citing only Exhibits 2F, 7F, 9F, and 12F for support). However, the records generally reflect appropriate findings related to Plaintiff's complaints during visits. See, e.g., Tr. at 805-806 (complaining of right leg pain and a pain level of 10/10 with the review of systems and the physical examination revealing "[p]ositive for joint swelling (swelling of right leg) and gait problem (due to pain in right leg)," "[p]ositive for tingling and numbness (neuropathy, bilateral legs due to DM)," "[p]ositive for sleep disturbance (due to pain)," and exhibiting "tenderness" in her right leg with "minimal appreciable swelling of right leg" and "[p]ain exacerbated by [SLR]" on April 5, 2014).
The Commissioner points to entries in the record to support the ALJ's position, but four of these entries are not encompassed within the broad exhibits cited by the ALJ. [ECF No. 15 at 8]; see Tr. at 700, 806, 830, 898. "[P]rinciples of agency law limit this Court's ability to affirm based on post hoc rationalizations by the Commissioner's lawyers." Robinson ex rel. M.R. v. Comm'r of Soc. Sec., No. 0:07-3521-GRA, 2009 WL 708267, at 12* (D.S.C. 2009). "[R]egardless [of] whether there is enough evidence in the record to support the ALJ's decision, principles of administrative law require the ALJ to rationally articulate the grounds for his decision and confine our review to the reasons supplied by the ALJ." Id. (citing Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir. 2002)).
Some of the other cited entries fail to acknowledge the reason for Plaintiff's visit or appreciate the symptoms of neuropathy that Plaintiff suffered. See, e.g., 20 C.F.R. § Pt. 404, Subpt. P, App. 1 ("Peripheral neuropathy. . . . The resulting neuropathy may affect peripheral motor or sensory nerves, or both, causing pain, numbness, tingling, and muscle weakness in various parts of the body."). Furthermore, the ALJ failed to explain how Plaintiff's complaints of pain are inconsistent with documentation reflecting few abnormal findings relating to sensation, motor strength, range of motion, gait, or balance. Moreover, the ALJ concluded this discussion with "considering [the neurologic] medication and [Plaintiff's] subjective complaints, I give [her] the benefit of the doubt that her neuropathy is diabetes-related." Tr. at 27.
The ALJ's decision also noted Plaintiff "made some complaints" of nausea, vomiting, and abdominal pain, which providers attributed to diabetic gastroparesis, but added she had not described "to her providers that these symptoms would be so bothersome as to preclude her from performing all work." Tr. at 27. Yet, as Plaintiff points out in her brief, the record contains Plaintiff's reports of pain and trips to the doctor or emergency room as evidence of her pain. See, e.g., Tr. at 684 (describing occasional syncope with associated symptoms including abdominal pain, nausea, palpitations, visual change, and vomiting on February 16, 2014); 861 (noting Plaintiff presented to MUSC for fatigue, abdominal pain, vomiting, and diarrhea and reflecting "tenderness in the epigastric area" on June 18, 2014); 870 (complaining of increased blood glucose level with nausea, vomiting, fatigue, and not feeling well at MUSC emergency room on September 14, 2014); 881 (noting Plaintiff presented to the emergency room with complaints of "abdominal pain (epigastric), fatigue, nausea, and vomiting (x3 today)" on September 24, 2014); 890 (noting Plaintiff presented to the emergency room with complaints of nausea and vomiting for two weeks with two fainting episodes on November 21, 2014); 834 (noting Plaintiff reported "no appetite, vomits everything back up, weakness, [and] stomach pain" and prescribing Tramadol on December 9, 2014); 836 (noting Plaintiff's nausea and abdominal pain was 'still persisting after meals, but a bit better" since starting Reglan on December 16, 2014); 839 (noting Plaintiff had abdominal pain and uncertainty as to whether it was related to a hernia on December 23, 2014); 849 (stating "PT IN PAIN '10'" on March 25, 2015); 905 (noting Plaintiff presented to the emergency room with emesis, yellow and green in color, actively vomited during triage, and had abdominal tenderness on April 14, 2015); 909 (noting Plaintiff returned the next day, despite receiving a Dilaudid for her pain, because she continued to vomit, her nausea had not resolved, and she suffered increased leg pain on April 15 , 2015). The ALJ did not explain, nor is it clear, why Plaintiff was required to describe "to her providers that these symptoms would be so bothersome as to preclude her from performing all work" in order to show their severity.
The ALJ noted "[m]oreover, while claimant testified that she has been receiving treatment from a gastroenterologist, the evidence contains no treatment records from such a specialist." Tr. at 27. The undersigned notes the record does not contain treatment records from Dr. Gourdin, a gastroenterologist, but Plaintiff listed him as one of her treating doctors and provided his contact information on the SSA forms submitted in August 2015. Tr. at 671, 673, 675, 676. In addition, the hearing transcript reflects Plaintiff testified (during the eleven-minute hearing) that she was treated by "Charleston GI, Dr. Beni (PHONETIC)." Tr. at 40. Although the record does not seem to reference a "Dr. Beni," it does contain Plaintiff's reference to Dr. Gourdin, who is a gastroenterologist at Charleston GI. Moreover, the record does contain an upper endoscopy performed by Dr. Gourdin in January 2015, which was mentioned in the ALJ's decision, and Dr. Gourdin noted Plaintiff would "continue her Nexium therapy" and "[f]ollow up in the office in 4 weeks." Tr. at 28, 931. On February 26, 2015, this treatment was acknowledged by Dr. Schweiger, noting "gastroenterologist stopped [Plaintiff's] Reglan" for her gastroparesis and started Nexium. Tr. at 845-46. Moreover, the ALJ concluded his discussion with "[n]onetheless, taking into account the diagnosis of gastroparesis and [Plaintiff's] providers attributing this condition to diabetes, I find that gastroparesis is diabetes-related." Tr. at 28. Thus, there does not appear to be an inconsistency between Plaintiff's testimony and the record or an explanation as to why the evidence does not support her allegations of pain.
See Licensee Look-Up, South Carolina Department of Labor, Licensing, and Regulation, https://verify.llronline.com/LicLookup/Med/Med2.aspx?LicNum=13033&cdi=350&bk=ff78a3d2-cdcf-4b3a-9fd8-ac4867f05fb7-1a762 (last visited Oct. 12, 2018) (noting Dr. Gourdin specializes in gastroenterology and providing the business address for Charleston GI); see also https://charlestongi.com/doctors-staff/ (last visited Oct. 12, 2018) (listing Dr. Gourdin as a doctor at the facility). A court may take judicial notice of factual information located in postings on government websites. See Phillips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (stating a court may "take judicial notice of matters of public record").
Finally, the ALJ relied upon the state agency consultants' assigned RFCs, particularly the restrictions in Dr. Saito's report. Tr. at 28. However, the undersigned notes Dr. Saito specifically limited the RFC to the period of February 10, 2014, through February 10, 2015, with the following additional explanation:
Clmt has a severe endocrine imp with some possible end organ disease. She is undergoing a work up for peripheral neuropathy
v. lumbar radiculopathy. Her evaluation has been incomplete. With further investigation and compliance with appropriate treatment, clmt should be capable of the RFC as outlined within one year.Tr. at 84 (emphasis added). This statement was made prior to Plaintiff's increased doctor or emergency room visits that reflect a worsening of her condition. Compare Tr. at 84 (containing RFC assessment dated July 10, 2014), with Tr. at 965 (containing a treatment note dated June 30, 2015, at Sweetgrass Endocrinology that states "A1c is horrendous—she has recently spiked her sugars for unclear reasons. I suspect the elevated sugars are aggr[a]vating her gastroparesis"). Again, the ALJ fails to explain the analysis of this evidence.
Separately, the undersigned notes Plaintiff submitted a medical source statement executed by Dr. Schweiger on December 29, 2015, to the Appeals Council. Tr. at 681. Yet, this statement does not appear to be in the record. See Vickie W. v. Berryhill, No. 7:17-CV-324, 2018 WL 4604038, at *3-4 n.12 (W.D. Va. Sept. 25, 2018) ("According to the Social Security Administration's Hearings, Appeals, and Litigation Law Manual ("HALLEX") regarding the Consideration of Additional Evidence by the Appeals Council, when the Appeals Council does not consider additional evidence it will . . . 'be included in the . . . record if the case is appealed to Federal court.'").
c. Plaintiff's Weight Loss Statements
During the hearing, Plaintiff testified, "[t]hrough this whole procedure, I have lost over 160 pounds. I'm not able to eat . . . I used to be over 350 pounds and (INAUDIBLE)." Tr. at 42. In his decision, the ALJ pointed to Plaintiff's testimony and her statement to a primary care provider in December 2014 that she had lost 100 pounds over the last eight months. Tr. at 27. The ALJ noted Plaintiff weighed 273 pounds in March 2014 and "most recently by April 2015, her weight was down to 233 pounds," so "it seems over the time period at issue, [Plaintiff] has lost only approximately 40 pounds." Id. Thus, the ALJ noted the "medical records do not corroborate [Plaintiff's] reports that she has lost such significant weight." Id.
The undersigned does not attempt to re-weigh this evidence or determine credibility, but merely notes Plaintiff's medical records do not record her weight at every visit, and it appears Plaintiff's weight fluctuated throughout doctor visits. See Tr. at 692 (270 pounds on May 26, 2013), 802 (273 pounds on May 29, 2013), 797-98 (265 pounds on July 3, 2013), 806 (260 pounds on April 5, 2014), 826 (257 pounds on May 19, 2014); 871 (243 pounds on September 14, 2014); 834 (230 pounds on December 9, 2014), 841 (235 pounds on January 28, 2015), 845 (238 pounds on February 26, 2015), 957 (236 pounds on March 5, 2015), 960 (238.4 pounds on March 20, 2015, but noting a 6-pound loss since the last visit), 849 (240 pounds on March 25, 2015), 852 (233 pounds on April 29, 2015, noting a 7-pound loss), 963 (225.3 pounds on June 30, 2015, noting a 7.7-pound loss), 966 (229.8 pounds on July 21, 2015); 969 (226.2 pounds on August 17, 2015). Of note, the ALJ's decision appeared to evaluate only a subset of Plaintiff's medical records, stating "most recently by April 2015," when Plaintiff's weight is recorded, at least, through the summer of that year. Tr. at 27, 969. Thus, based on this record, the undersigned is unable to determine whether the records support Plaintiff's alleged weight loss or not and, at the very least, review of the record reflects the ALJ did not consider all of Plaintiff's medical records in forming his conclusion.
To properly assess a claimant's RFC, the ALJ must ascertain the limitations imposed by the individual's impairments and determine her work-related abilities on a function-by-function basis. SSR 96-8p. "The RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and non-medical evidence (e.g., daily activities, observations)." Id. The ALJ must also consider and explain how any material inconsistencies or ambiguities in the record were resolved. Id. "In assessing the credibility of a claimant's statements about pain and its functional effects, the ALJ is supposed to consider whether there are 'any conflicts between your statements and the rest of the evidence, including your history, the signs and laboratory findings, and statements by your medical sources or other persons about how your symptoms affect you.'" Brown, 873 F.3d at 269 (quoting 20 C.F.R. § 404.1529(c)(4)). "Significantly, however, the ALJ must build an accurate and logical bridge from the evidence to his conclusion that [the claimant's] testimony was not credible . . . ." Id. (internal citation and quotation marks omitted). The Fourth Circuit has "held that '[a] necessary predicate to engaging in substantial evidence review is a record of the basis for the ALJ's ruling,' including 'a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence.'" Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013)). "[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." Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (citing Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)).
Because the ALJ's credibility assessment is flawed and he failed to comply with SSR 96-7p, applicable regulations, and Fourth Circuit precedent to properly evaluate Plaintiff's credibility, the undersigned recommends his decision is not supported by substantial evidence and this case should be remanded.
2. Additional Allegations of Error
Plaintiff argues the ALJ did not consider the combined effect of her impairments in assessing her RFC or in determining she was not disabled. [ECF No. 13 at 8-11]. The Commissioner counters the ALJ considered the combined effect of Plaintiff's impairments. [ECF No. 15 at 5-9].
Because the RFC assessment is to be based on all the relevant evidence in the case record, including "any related symptoms, such as pain" (20 C.F.R. §§ 404.1545(a), 416.945(a)) and the undersigned has recommended the court find that some of the relevant evidence was not adequately considered, the undersigned declines to address Plaintiff's additional allegations of error. III. Conclusion and Recommendation
However, in an effort to avoid possible future error, the undersigned notes the ALJ failed to mention any consideration of SSR 14-2p, the policy interpretation ruling issued by the SSA to provide guidance for evaluating the types of impairments and limitations that result from diabetes mellitus. SSR 14-2p, 79 Fed. Reg. 31375 (effective June 2, 2014), 2014 WL 2434070.
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. October 18, 2018
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).