Opinion
No. 7:18-CV-00072-D
07-16-2019
Jennifer Donovan Ott, Plaintiff, v. Andrew Saul, Commissioner of Social Security, Defendant.
Memorandum & Recommendation
Plaintiff Jennifer Ott instituted this action in April 2018 to challenge the denial of her application for social security income. Ott claims that Administrative Law Judge ("ALJ") Richard L. Vogel erred in (1) failing to accord proper weight to the medical opinion evidence and (2) evaluating her credibility. Both Ott and Defendant Andrew Saul, Commissioner of Social Security, have filed motions seeking a judgment on the pleadings in their favor. D.E. 35, 37.
After reviewing the parties' arguments, the court has determined that ALJ Vogel erred in his determination. The undersigned finds that ALJ Vogel erred in considering the medical opinion evidence. And substantial evidence does not support ALJ Vogel's reasons for only partially crediting Ott's statements. Therefore, the undersigned magistrate judge recommends that the court grant Ott's motion, deny the Commissioner's motion, and remand this matter to the Commissioner for further consideration.
The court has referred this matter to the undersigned for entry of a Memorandum and Recommendation. 28 U.S.C. § 636(b). D.E. 39.
I. Background
In July 2011, Ott applied for disability insurance benefits, alleging a disability that began a month earlier. After her claim was denied at the initial level and upon reconsideration, Ott appeared before an ALJ who denied her application and found she was not disabled. The Appeals Council remanded Ott's claim and directed the ALJ to evaluate additional evidence that Ott submitted.
In May 2015, Ott appeared before ALJ Vogel for a second hearing to determine whether she was entitled to benefits. ALJ Vogel determined Ott was not entitled to benefits because she was not disabled. Tr. at 32-44.
ALJ Vogel found that Ott had severe impairments since her onset date: status post right hip replacement and degenerative disc disease of the knees. Tr. at 34. Beginning in December 2013, Ott had degenerative disc disease of the left hip which was also a severe impairment. Id. ALJ Vogel also found that Ott's impairments, either alone or in combination, did not meet or equal a Listing impairment. Tr. at 36.
ALJ Vogel then determined that before December 2013, Ott had the residual functional capacity ("RFC") to perform a full range of sedentary work. Id. But as of December 2013, Ott had RFC to perform sedentary work with an additional limitation. Tr. at 42. Because of the bone-on-bone contact in her left hip, Ott could not reliability perform the two-hour standing or walking requirement associated with sedentary work. Id.
ALJ Vogel concluded that, before December 2013, Ott could perform her past relevant work as a loan originator. Tr. at 43. But Ott's RFC as of December 2013 precluded her performance of past work. Id. Considering her age, education, work experience, and RFC, ALJ Vogel found that no jobs existed in significant numbers in the national economy that Ott could perform as of December 2013. Id. Thus, ALJ Vogel found that Ott was not disabled before December 2013, at which time she became disabled. Tr. at 43-44.
After unsuccessfully seeking review by the Appeals Council, Ott began this action in April 2018. D.E. 1.
II. Analysis
A. Standard for Review of the Acting Commissioner's Final Decision
When a social security claimant appeals a final decision of the Commissioner, the district court's review is limited to determining whether, based on the entire administrative record, there is substantial evidence to support the Commissioner's findings. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is defined as "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). The court must affirm the Commissioner's decision if it is supported by substantial evidence. Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996).
B. Standard for Evaluating Disability
In making a disability determination, the ALJ engages in a five-step evaluation process. 20 C.F.R. § 404.1520; see Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005). The ALJ must consider the factors in order. At step one, if the claimant is engaged in substantial gainful activity, the claim is denied. At step two, the claim is denied if the claimant does not have a severe impairment or combination of impairments significantly limiting him or her from performing basic work activities. At step three, the claimant's impairment is compared to those in the Listing of Impairments. See 20 C.F.R. Part 404, Subpart P, App. 1. If the impairment is listed in the Listing of Impairments or if it is equivalent to a listed impairment, disability is conclusively presumed. But if the claimant's impairment does not meet or equal a listed impairment, the ALJ assesses the claimant's RFC to determine, at step four, whether he can perform his past work despite his impairments. If the claimant cannot perform past relevant work, the analysis moves on to step five: establishing whether the claimant, based on his age, work experience, and RFC can perform other substantial gainful work. The burden of proof is on the claimant for the first four steps of this inquiry, but shifts to the Commissioner at the fifth step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
C. Medical Background
Ott has a long history of back and hip impairments. Before her alleged disability onset date, Ott underwent spinal fusion surgeries on her cervical and lumbar spines. Tr. at 794, 1004-05. In 2006, Ott underwent a total hip replacement on her right side. Tr. at 1301.
In June 2011, Ott sought orthopedic treatment with Syracuse Orthopedic Specialists. Tr. at 794-97. Dr. Richard Zogby's examination noted tenderness, limited flexation and extension, and diminished sensation. Id. He assessed cervical spondylosis, neck pain, status post-arthrodesis, and a herniated cervical disc. Id.
Three months later, Ott received treatment at Seacoast Primary Care for left hip pain. Tr. at 1096. An examination showed decreased rotation of the left hip, and providers diagnosed left hip pain. Tr. at 1096-97. X-rays revealed osteoarthritis with loss of joint space and acetabular osteophytes. Tr. at 1103.
Around this time, Ott had a consultative examination with Dr. Aymen Gebrail. Tr. at 951-62. Dr. Gebrail's examination noted tenderness in Ott's cervical and lumbar spines as well as a positive Hoffman's sign. Tr. at 961. Dr. Gebrail diagnosed Ott with chronic back pain secondary to cervical and lumbar spondylosis, status post fusion surgeries, and osteoarthritis of the right hip status post hip replacement. Tr. at 962. Dr. Gebrail opined that Ott would be limited in heavy lifting, bending, twisting, pushing, pulling as well as prolonged sitting and standing. Id.
The next month, a cervical spine MRI showed mild convex degenerative scoliosis on the right side, mild broad-based annular protrusion, and mild posterior displacement of an exiting nerve root. Tr. at 1004-05. It also revealed bilateral facet joint arthrosis and mild broad-based central disc protrusion contacting the exiting nerve root. Id.
In November 2011 and again the next month, Ott received a steroid injection in her back. Tr. at 1616-19. Yet Ott continued to experience persistent back pain. Tr. at 1090. Thoracic spine x-rays showed anterolisthesis and post-fusion changes of the cervical spine. Tr. at 1102.
In December 2011, Dr. Thomas Chambers evaluated Ott in connection with a workers compensation claim. Tr. at 1106-08. His examination found decreased range of motion and tension signs in Ott's spine. Tr. at 1108. Dr. Chambers diagnosed cervical and lumbar degenerative disc disease with radicular symptoms as well as chronic pain. Tr. at 1106. Dr. Chambers opined that Ott was totally disabled for at least two years and she could not perform any significant work because of her chronic pain. Id.
Five months later, Ott continued to complain of back pain and also reported swelling of her lower extremities. Tr. at 1114. A later MRI showed multilevel spondylosis and shallow left posterolateral disc protrusion causing a mild effect on the ventral sac. Tr. at 1154. A lumbar spine MRI revealed degenerative and post-surgical changes. Tr. at 1156.
In September 2012, Ott returned to Dr. Zogby for a follow-up appointment. Tr. at 1322. She complained of increased back pain with radiation into her lower left extremity with numbness and tingling. Id. She also experienced neck pain and headaches. Id. An examination found tenderness, limited flexation and extension, decreased sensation, and a positive straight leg raise. Tr. at 1324. Dr. Zogby diagnosed Ott with cervical spondylosis, herniated discs, neck, back, and thoracic pain, lumbosacral radiculitis, and cervical spinal stenosis. Id.
Around this time, Ott visited New York Spine & Wellness Center for her complaints of low back pain. Tr. at 1238. An examination noted tenderness, pain, and an antalgic gait, and providers assessed back pain with muscle spasms. Tr. at 12401-41. An EMG conducted the next month confirmed chronic radiculopathy. Tr. at 1178. Providers administered multiple trigger point injections to Ott. Tr. at 1242-43.
At an October 2012 follow-up visit with Dr. Zogby, Ott again reported back pain, for which she took multiple medications. Tr. at 1318. Dr. Zogby noted that Ott had trouble moving about and appeared to be in considerable pain. Tr. at 1320. An examination found pain with movement in all directions, reduced range of motion, tenderness, diminished sensation, and a positive straight leg raise. Id. Dr. Zogby referred Ott for physical therapy. Id. The next month, she again complained of neck and back pain. Tr. as 1234. She exhibited tenderness and an antalgic gait, and providers adjusted her medications. Tr. at 1236.
Ott saw Dr. Aaron Bianco at Syracuse Orthopedic Specialists in November 2012. Tr. at 1188. She reported back pain, numbness and tingling in her right upper extremity, and radiating pain into her lower left extremity. Id. Treatment notes reflect that Ott had received trigger point injections and she continued to attend physical therapy, but both treatments provided minimal results. Tr. at 1189.
In a November 2012 Medical Statement, Dr. Zogby opined that Ott could not work because of her neck and back pain, right upper extremity numbness and tingling, and left lower extremity pain. Tr. at 1186.
Three months later, Ott underwent a cervical spine MRI which showed left side foraminal disc protrusion associated with uncovertebral osteophyte spurring, mild left-sided foraminal narrowing, and disc space narrowing associated with diffuse disc bulge abutting and minimally flattening the ventral cord. Tr. at 1160-61. At a follow-up visit to Dr. Bianco two days later, Ott reported neck and thoracic pain as well as upper right extremity numbness and tingling. Tr. at 1309. Dr. Bianco remarked that Ott had an antalgic gait and showed difficult moving. Tr. at 1311. His examination found tenderness, limited flexation and extension, and a positive straight leg raise. Id. Dr. Bianco recommended additional injections. Tr. at 1312. Ott's condition remained unchanged in a later visit to Dr. Bianco six months later. Tr. at 1305-08.
Following Ott's August 2013 visit, Dr. Bianco completed a Summary Impairment Questionnaire. Tr. at 1296-97. Dr. Bianco noted Ott's past surgeries and post-laminectomy syndrome of her cervical and lumbar spines. Tr. at 1296. He remarked that Ott's symptoms included pain in her neck, back, left leg, and right arm. Id. Dr. Bianco opined that in an eight-hour workday, Ott could sit for less than one hour and stand or walk for less than one hour. Tr. at 1297. Ott could not lift or carry even five pounds and she would have additional postural and manipulative limitations. Id. Dr. Bianco believed Ott would be absent from work more than three times per month because of her symptoms. Id. Dr. Bianco pointed to the MRIs supporting his assessment. Tr. at 1296.
This Questionnaire is not dated.
Dr. Bianco also completed a Spinal Impairment Questionnaire in August 2013. Tr. at 1346-51. He noted examination results showing limited range of motion, tenderness, sensory loss, decreased reflexes and sensation, an antalgic gait, and positive straight leg raise testing. Id. Dr. Bianco remarked that Ott's symptoms of pain, decreased sensation in the extremities, and fatigue matched documentation of her functional impairments. Id. Dr. Bianco stated that Ott had a poor prognosis. Tr. at 1346.
Dr. Bianco again assessed limitations including sitting for one hour, standing or walking for one hour, and lifting or carrying less than five pounds. Tr. at 1349-50. Ott would need to take unscheduled breaks to rest. Tr. at 1351. And Dr. Bianco remarked that Ott was not a malingerer. Id.
Ott returned to Syracuse Orthopedic Specialists later that month for complaints of right hip pain. Tr. at 1301. Providers noted that Ott appeared in visible pain. Tr. at 1303. An examination showed limited range of motion, tenderness, and evidence of trochanteric bursitis. Id.
Around this time, Ott began treatment with Dr. Jon Michael Twinning, a rheumatologist. Tr. at 1427. She described diffuse joint pain and stiffness. Id. Dr. Twinning noted poor grip strength, osteoarthritic deformities in her extremities, positive straight leg raises, trochanteric bursitis, and reduced range of motion. Tr. at 1429. He assessed polyarthralgia, lumbar disc disease with radiculopathy, and bilateral trochanteric bursitis. Tr. at 1429-30. Dr. Twinning recommended both steroid and trigger point injections. Tr. at 1430. Ott's condition remained unchanged in a follow-up visit the next month. Tr. at 1431-34.
Dr. Twinning reviewed earlier hip x-rays that showed "bone-on-bone" degenerative changes in Ott's hips joint. Tr. at 1433. He prescribed medications to Ott and recommended that she continue her pain management treatment. Tr. at 1434.
The next month, Ott reported muscle cramps and pain in her lower extremities, as well as neck and right shoulder pain radiating into her upper extremity. Tr. at 1453. An examination found poor grip strength, osteoarthritic deformities and changes, positive straight leg raise tests, trochanteric bursitis, and reduced range of motion because of pain. Tr. at 1455. Dr. Twinning adjusted Ott's medications. Tr. at 1456. A follow-up visit the next month found no change in Ott's condition. Tr. at 1458-61.
Ott began pain management treatment with Dr. Channing Willoughby in October 2013. Tr. at 1631. Ott reported pain in her neck, back, and hip. Id. Dr. Willoughby noted an antalgic gait, hip pain, and tenderness in Ott's spine and shoulders. Tr. at 1633. Dr. Willoughby assessed Ott with chronic pain syndrome, erosive inflammatory arthritis, lumbar and cervical spondylosis, left hip osteoarthritis, and cervical degenerative disc disease. Id. He recommended that Ott continue her physical therapy and medication regimen. Tr. at 1633-34. Later that month, Dr Willoughby administered an inter-articular hip injection, which he repeated the next month. Tr. at 1637-40. Dr. Willoughby also administered a cervical steroid injection to Ott in December 2013. Tr. at 1642-43.
In December 2013, Dr. Twinning completed an Arthritis Impairment Questionnaire. Tr. at 1484-90. Dr. Twinning noted Ott's diagnoses of severe end stage erosive osteoarthritis of the hands and feet, with bone-on-bone degenerative changes in her left hip, and severe degenerative disc disease of her cervical and lumbar spines. Tr. at 1484. Dr. Twinning observed that Ott displayed clinical signs including limited range of motion, tenderness, swelling, joint deformities, joint redness and warmth, crepitus, reduced grip strength, positive straight leg raises, and an abnormal gait. Tr. at 1484-85. And he remarked that x-rays showed severe osteoarthritis with erosive changes in the hands, feet, and right hip. Tr. at 1485. Dr. Twinning stated these symptoms and limitations were present since 2010. Tr. at 1490.
Dr. Twinning opined that Ott could sit for less than one hour and stand or walk less than one hour in an eight-hour workday. Tr. at 1487. Ott could occasionally lift and carry no more than ten pounds along with postural and manipulative limitations. Tr. at 1486. Dr. Twinning concluded that Ott's pain, fatigue, and other symptoms would interfere with her attention and concentration. Tr. at 1489. Because of her impairments, Dr. Twinning determined that Ott would require unscheduled breaks and she would be absent from work more than three times per month. Tr. at 1490.
In a narrative report later that month, Dr. Twinning observed that he had treated Ott for chronic pain related to her erosive osteoarthritis for four months. Tr. at 1494. Dr. Twinning pointed out that the clinical examination findings and x-rays supported his diagnoses. Id. Dr. Twinning noted that Ott's condition was so severe that he placed her on strong narcotic pain medications and Methotrexate, a treatment usually reserved for rheumatoid arthritis. Id. Her medications caused fatigue. Id. Dr. Twinning opined that Ott had a poor prognosis, and he did not expect her condition to improve. Id.
Seven months later, Dr. Willoughby completed a Multiple Impairment Questionnaire in which he noted that he continued to treat Ott bi-monthly for chronic pain syndrome, erosive inflammatory arthritis, lumbar spondylosis, cervical degenerative disc disease, and failed back surgery syndrome. Tr. at 1580. Dr. Willoughby's clinical findings included decreased spinal range of motion, antalgic gait, and decreased joint range of motion because of pain. Id. Ott's symptoms included pain, gait disturbance, and deconditioning. Tr. at 1581. Dr. Willoughby remarked that MRI studies supported his assessment. Id. Dr. Willoughby opined that Ott's symptoms and limitations fit with the documentation of her conditions and had been present for several years. Tr. at 1581, 1586.
Dr. Willoughby concluded that in an eight-hour workday, Ott could sit for two hours and stand or walk for two hours. Tr. at 1582. He also found significant limitations in Ott's ability to reaching, handling, and fingering. Tr. at 1583-84. Dr. Willoughby determined that Ott's symptoms would interfere with her attention and concentration. Tr. at 1585. And because of her impairments, Dr. Willoughby found that Ott would require unscheduled breaks and be absent from work more than three times per month. Tr. at 1585-86.
At the hearing, Ott testified that she stopped working in 2011 because she could no longer perform her work duties. Tr. at 59. Although she tried to return to work the next year, Ott could not do the work and stopped after just two months. Id. Ott stated that she cannot sit for a prolonged period, walk long distances, or lift items, and she has trouble turning her head. Tr. at 60. Ott also described pain in her back, neck, left leg, and right arm and shoulder. Tr. at 60-61. She experienced numbness in her right lower extremity. Tr. at 63.
Ott estimated that she could sit for 15 to 30 minutes and stand for 15 minutes. Tr. at 61-62. And poor hand coordination caused Ott to drop objects. Tr. at 64. Ott also testified that she had trouble keeping track of things. Tr. at 61. She estimated that she spends half of her day lying down. Tr. at 65. Although Ott can perform some chores, she can do so for only 15 to 20 minutes at a time. Id. Ott also stated that she rarely drives and needs assistance with grocery shopping. Tr. at 67.
D. Medical Opinion Evidence
Ott contends that ALJ Vogel erred in considering the medical opinion evidence and failed to follow the requirements of SSR 83-20. The Commissioner argues that ALJ Vogel properly explained his evaluation of the medical opinion evidence. The undersigned cannot conclude that that substantial evidence supports ALJ Vogel's assessment of this evidence.
"Medical opinions are statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [the claimant's] symptoms, diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and [the claimant's] physical or mental restrictions." 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). An ALJ must consider all medical opinions in a case in determining whether a claimant is disabled. See id. §§ 404.1527(c), 416.927(c); Nicholson v. Comm'r of Soc. Sec., 600 F. Supp. 2d 740, 752 (W.D. Va. 2009) ("Pursuant to 20 C.F.R. §§ 404.1527(b), 416.927(b), an ALJ must consider all medical opinions when determining the disability status of a claimant.").
Opinions of treating physicians and psychologists on the nature and severity of impairments must be given controlling weight if they are well supported by medically acceptable clinical and laboratory diagnostic techniques and are not inconsistent with the other substantial evidence in the record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996); Ward v. Chater, 924 F. Supp. 53, 55-56 (W.D. Va. 1996); SSR 96-2p, 1996 WL 374188 (July 2, 1996). Otherwise, the opinions are to be given significantly less weight. Craig, 76 F.3d at 590. In determining the weight to be ascribed to an opinion, the ALJ should consider the length and nature of the treating relationship, the supportability of the opinions, their consistency with the record, any specialization of the source of the opinions, and other factors that tend to support or contradict the opinions. 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6).
The ALJ's "decision must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the [ALJ] gave to the treating source's medical opinion and the reasons for that weight." SSR 96-2p, 1996 WL 374188, at *5; see also 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); Ashmore v. Colvin, No. 0:11-2865-TMC, 2013 WL 837643, at *2 (D.S.C. Mar. 6, 2013) ("In doing so [i.e., giving less weight to the testimony of a treating physician], the ALJ must explain what weight is given to a treating physician's opinion and give specific reasons for his decision to discount the opinion.").
Opinions from "other sources" who do not qualify as "acceptable medical sources" cannot be given controlling weight, but are evaluated under the same factors used to weigh the assessments of physicians and psychologists. SSR 06-03p, 2006 WL 2329939, at *2, 4 (Aug. 9, 2006); see also 20 C.F.R. §§ 404.1513(d)(1), 416.913(d)(1) (identifying "other sources"). An ALJ must explain the weight given opinions of "other sources" and the reasons for the weight given. SSR 06-03p, 2006 WL 2329939, at *6; Napier v. Astrue, No. TJS-12-1096, 2013 WL 1856469, at *2 (D. Md. May 1, 2013).
Similarly, evaluations from sources who neither treat nor examine a claimant are considered under the same basic standards as evaluations of medical opinions from treating providers whose assessments are not given controlling weight. See 20 C.F.R. §§ 404.1527(c), (e), 416.927(c), (e). The ALJ must offer an explanation of the weight given to these opinions. Id.; Casey v. Colvin, No. 4:14-CV-00004, 2015 WL 1810173, at *3 (W.D. Va. Mar. 12, 2015), adopted by, 2015 WL 1810173, at *1 (Apr. 21, 2015); Napier, 2013 WL 1856469, at *2.
More weight is generally given to the opinion of a treating source over the opinion of a non-treating examining source. Similarly, the opinion of an examining source is typically given more weight than the opinion of a non-examining source. See 20 C.F.R. §§ 404.1527(c)(1), (2), 416.927(c)(1), (2). Under appropriate circumstances, however, the opinions of a non-treating examining source or a non-examining source may be given more weight than those of a treating source. See, e.g., Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001) (affirming ALJ's attribution of greater weight to the opinions of a non-treating examining physician than to those of a treating physician); SSR 96-6p, 1996 WL 374180, at *3 (July 2, 1996) ("In appropriate circumstances, opinions from State agency medical and psychological consultants and other program physicians and psychologists may be entitled to greater weight than the opinions of treating or examining sources.").
Opinions from medical sources on issues reserved to the Commissioner, such as disability, are not entitled to any special weight. See 20 C.F.R. §§ 404.1527(d), 416.927(d); SSR 96-5p, 1996 WL 374183, at *2, 5 (July 2, 1996). But the ALJ must still evaluate these opinions and give them appropriate weight. SSR 96-5p, 1996 WL 374183, at *3 ("[O]pinions from any medical source on issues reserved to the Commissioner must never be ignored. The adjudicator must evaluate all evidence in the case record that may have a bearing on the determination or decision of disability, including opinions from medical sources about issues reserved to the Commissioner.").
Here, ALJ Vogel gave significant weight to Dr. Twinning's opinion, but found that the evidence did not support his conclusion that Ott was disabled as of August 2013. Tr. at 42. But the record supported a conclusion of disability at a later time when Ott sought treatment for her severe hip problems. Id. ALJ Vogel determined that the Dr. Willoughby's July 2014 medical source statement supported Dr. Twinning's conclusion that Ott was could not perform the demands associated with sedentary work as of December 2013. Tr. at 43.
Ott contends that ALJ Vogel's evaluation of Dr. Twinning's assessment was flawed. Ott argues that ALJ Vogel erred in not crediting Dr. Twinning's finding that she became disabled before December 2013. Dr. Twinning concluded that Ott's bone-on-bone osteoarthritis in her left hip existed before he issued his December 2013 assessment. Tr. at 1494. He based his opinion on earlier x-rays of Ott's hip. Because the only hip x-rays in the record are from September 2011, Ott maintains that her disability onset date reaches back to that time and Dr. Twinning's retrospective opinion deserves full credit.
The Commissioner asserts that ALJ Vogel's consideration of the medical evidence was proper. She points to examination findings which note that Ott displayed normal gait and strength and full range of motion. As ALJ Vogel noted, records reflect that Ott exercised and bicycled. And in 2011, state agency physicians opined that Ott could perform a reduced range of light work. Tr. at 42.
In support of her argument, Ott points to SSR 83-20, which sets forth guidelines for determining the onset date of disability. In disabilities of nontraumatic origin, determining onset involves consideration of the applicant's allegations, work history, and the medical and other evidence about impairment severity. SSR 83-20, 1983 WL 31249, at *2. An applicant's allegation about when disability began "should be used if it is consistent with all the evidence available." Id. at *3.
After ALJ Vogel's decision, SSR 83-20 was rescinded and replaced October 2, 2018, by SSR 18-01p ("Disability Claims") and SSR 18-02p ("Blindness Claims"). But under the Administration's instruction, the curt will analyze this issue using the rules in effect at the time of the ALJ's determination.
The Fourth Circuit held that "if the evidence of onset is ambiguous, the ALJ must procure the assistance of a medical advisor in order to render the informed judgment that the Ruling requires." Bailey v. Chater, 68 F.3d 75, 79 (4th Cir. 1995) (further explaining that, absent "clear evidence documenting the progression of [the claimant's] condition, the ALJ did not have the discretion to forgo consultation with a medical advisor").
Substantial evidence does not support ALJ Vogel's conclusion as to Ott's onset date. His finding appears based on the date of Dr. Twinning's statement, even though the physician related his assessment back to an earlier time. And SSR 83-20 requires retrospective consideration of medical evidence where earlier records are unavailable.
Treatment notes show Ott occasionally displayed normal results and sometimes engaged in activities, but they fail to capture the overall import of the medical evidence showing consistent reports of symptoms and reduced functional abilities. Ott's own statements, providers' examinations, and objective studies in the record spanning several years show repeated support for Ott's claims.
While the Commissioner relies on the significant weight ALJ Vogel granted to the state agency physicians' assessments, it bears noting that these providers did not examine Ott. And ALJ Vogel even concluded that she was more limited than they found. Tr. at 42.
In finding Ott became disabled in December 2013, ALJ Vogel discounted the opinions of Drs. Twinning and Willoughby. Both providers concluded that Ott's condition became disabling before December 2013. And these two treating providers' opinions tracked Ott's testimony, work history, statements made to them and other medical providers, and the objective medical evidence, including examination findings and imaging results. The undersigned can find no support in the record for the supposition that Ott's chronic and degenerative hip condition became disabling on the exact date Dr. Twinning completed the Arthritis Impairment Questionnaire.
In assessing Ott's condition, Dr. Twinning's December 2013 statement notes that her "end stage osteoarthritis of her left hip" is supported by x-rays showing "bone on bone[.]" Tr. at 1494. A reasonable reading of Dr. Twinning's December 2013 statement suggests Ott's condition existed since at least 2011 when x-rays showed bone-on-bone in her left hip. And in his 2014 statement, Dr. Willoughby opined that Ott's symptoms and limitations had been present for several years.
ALJ Vogel found that as a result of her left hip bone-on-bone contact, Ott could not perform the sitting and standing requirements associated with sedentary work and she was, therefore, disabled. Tr. at 42. Because the only left hip x-rays in the record are from 2011, and they show bone-one-bone contact, it is reasonable to infer that the left hip bone-on-bone condition on which Dr. Twinning based his evaluation and which ALJ Vogel found disabling existed since 2011. So the December 2013 onset date determined by ALJ Vogel appears erroneous.
As the record is ambiguous about the date of onset, ALJ Vogel could have sought input from a medical advisor to determine the when a disability began. And a medical advisor's assessment may be especially pertinent where, as here, there is reason to infer a linkage between the Ott's condition in December 2013 and her earlier status.
Dr. Twinning's opinion echoes the findings made by Dr. Chambers in connection with Ott's workers compensation claim in December 2011. Dr. Chambers's examination noted many normal findings including gait, reflexes, and range of motion and also remarked that Ott went to the gym. ALJ Vogel granted significant weight to this evaluation, finding it consistent with the overall medical evidence. Tr. at 41.
Dr. Chambers also opined that Ott was totally disabled for two years. While his assessment may be limited to Ott's previous job as a teaching assistant, a light work occupation, and not directly address her ability to perform sedentary work, it is still informative in showing that Ott had significant limitations in performing routine work activity. Importantly, Dr. Chambers's assessment matches the opinions of Drs. Twinning and Willoughby that Ott's impairments presented significant restrictions on her functional abilities well before December 2013.
Because ALJ Vogel failed to determine properly Ott's onset date or sought counsel from a medical advisor on this issue, remand is appropriate.
After the ALJ's decision, the SSA superseded SSR 96-7p with SSR 16-3p, 2016 WL 1119029 (effective Mar. 28, 2016). SSR 16-3p eliminates use of the term "credibility," and clarifies that subjective symptom evaluation is not an examination of an individual's character. Although SSR 16-3p eliminates the term credibility, it requires assessment of most of the factors considered before under SSR 96-7p. Because this case was decided before March 28, 2016, the court analyzes the decision based on the provisions of SSR 96-7p, which required assessment of the claimant's credibility. See Best v. Berryhill, No. 0:15-CV-02990-DCN, 2017 WL 835350, at *4 n.3 (D.S.C. Mar. 3, 2017) (applying SSR 96-7p under the same circumstances).
Ott also argues that ALJ Vogel erred in finding that she was not fully credible. The Commissioner submits that ALJ Vogel's credibility analysis is supported by the record. The undersigned concludes ALJ Vogel did not support his credibility determination with sufficient reasons he found Ott less than fully credible.
The Social Security Regulations provide the authoritative standard for the evaluating subjective complaints of pain and symptomology. See Craig, 76 F.3d at 593; 20 C.F.R. § 404.1529(a). Under the Regulations, "the determination of whether a person is disabled by pain or other symptoms is a two-step process." Id. at 594. First, as an objective matter, the ALJ must determine whether the claimant has a medical impairment which could reasonably be expected to produce the pain or other symptoms alleged. Id.; see also SSR 96-7p, 1996 WL 374186, at *2 (July 2, 1996). If this threshold question is satisfied, then the ALJ evaluates the actual intensity and persistence of the pain or other symptoms, and the extent to which each affects a claimant's ability to work. Id. at 595. The step two inquiry considers "all available evidence," including objective medical evidence (i.e., medical signs and laboratory findings), medical history, a claimant's daily activities, the location, duration, frequency and intensity of symptoms, precipitating and aggravating factors, type, dosage, effectiveness and adverse side effects of any pain medication, treatment, other than medication, for relief of pain or other symptoms and functional restrictions. Id.; see also 20 C.F.R. § 404.1529(c)(3); SSR 96-7p, 1996 WL 374186, at *3. The ALJ may not discredit a claimant solely because his subjective complaints are not substantiated by objective medical evidence. See id. at 595-96. Yet neither is the ALJ obligated to accept the claimant's statements at face value. Instead, the ALJ "must make a finding on the credibility of the individual's statements based on a consideration of the entire case record." SSR 96-7p, 1996 WL 374186, at *2.
The ALJ has full discretion to weigh the subjective statements with the objective medical evidence and other matters of record. Craig, 76 F.3d at 595 (holding that claimant's allegations of pain need not be accepted to extent that they are inconsistent with the record); see also Hawley v. Colvin, No. 5:12-CV-260-FL, 2013 WL 6184954, at *15 (E.D.N.C. Nov. 14, 2013) (ALJ need not accept claimant's claims at face value). In a district court's review, the ALJ's findings are entitled to great weight because of the ALJ's ability to observe and evaluate testimony firsthand. Shively, 739 F.2d at 989-90.
ALJ Vogel partially credited Ott's statements about her functioning. Tr. at 41. But he determined that her activities of daily living, such as driving, attending church, exercising, and visiting family, did not support the degree of limitation she alleged. Id. ALJ Vogel also found that Ott's medical records failed to corroborate her claims. Id.
Although an ALJ's credibility determination is due deference, the undersigned cannot agree with ALJ Vogel's assessment and the reasons he cites to discount Ott's statements. First, Ott's statements about her daily activities do not contradict the limitations she alleges. ALJ Vogel noted that Ott was independent in personal care activities and she could perform chores such as shopping, preparing meals, and caring for pets.
"While a claimant's ability to perform [activities of daily living] is an appropriate factor to consider in evaluating a claimant's credibility regarding pain, it is also important to consider whether the claimant can sustain effort over the length of a workday." Morgan v. Colvin, No. 9:12-562-RMG, 2013 WL 1786408, at *7 n.2 (D.S.C. Apr. 25, 2013). Ott testified that she could only do chores for 15 or 20 minutes before she needed to take an hour break. In 2013, Ott stated she had trouble lifting a laundry basket, a gallon of milk, or things out of the oven. Tr. at 62. By 2015, Ott dropped things like a casserole dish from the oven. Tr. at 78.
Ott also stated that others assist her with grocery shopping. Tr. at 66. In 2013, she testified that her companion did most of the grocery shopping. Tr. at 67. By 2015, Ott stated she could no longer go shopping. Tr. at 79. And although she could drive, Ott did not do it a lot because she had trouble turning her neck. Id.
And playing cards, watching television, and visiting with family are not activities that are exertional or inform a person's ability to engage in full-time work. See Brown v. Comm'r of Soc. Sec. Admin., 873 F.3d 251, 263 (4th Cir. 2017) (finding that the ALJ erred in discounting the plaintiff's credibility based on his ADLs without acknowledging their limited extent or explaining how the particular activities "showed that he could persist through an eight-hour workday"). Ott stated that she resolved herself to such passive activities because of her pain. Tr. at 78-79. So without additional explanation, the undersigned cannot agree with ALJ Vogel's finding that Ott's activities contradict her claimed restrictions.
Treatment records also fail to discredit Ott's allegations of the limitations caused by her symptoms. ALJ Vogel points to an October 2011 entry where Ott remarked that she was not interested in additional spinal surgery. Tr. at 41. And seven months later, Ott declined pain management treatment. Id.
But Ott also testified that additional back surgeries would not make sense because her range of motion would not improve. Tr. at 75. Because of the significant amount of scar tissue resulting from the many surgeries Ott has undergone, additional surgical procedures had failed. Tr. at 76. After having five back surgeries, yet still experiencing significant symptoms, it is not unreasonable that Ott would pass on further surgical intervention. So to decline an invasive procedure, where past results did not succeed, fails to suggest that Ott's symptoms were less-severe than she claimed.
Ott also contends that declining pain management in May 2012 was not unreasonable as she experienced a short-lived improvement in her symptoms around this time. But later records show Ott's symptoms persisted. In September 2012, Ott reported increased back pain and radiation into her lower left extremity with numbness and tingling. Examinations found tenderness, limited flexation and extension, decreased sensation, a positive straight leg raise, and an antalgic gait. Ott reported continued pain the next month, where an examination noted similar findings as well as pain with all movement.
Ott continued to report multiple areas of pain in November 2012. Her treatment included medications, injections, and physical therapy. Three months later, following an MRI which showed multiple findings in Ott's cervical spine, treatment notes reflect she walked with an antalgic gait and displayed tenderness, limited flexation and extension, and a positive straight leg raise. Six months later, providers noted Ott's condition remained unchanged.
An examination in August 2013 noted tenderness and limited range of motion, and remarked that Ott appeared in visible pain. Records from this time reflect Ott's reports of diffuse pain, and examination showed poor grip strength, osteoarthritic deformities in the extremities, positive straight leg raises, trochanteric bursitis, and reduced range of motion. The next month, providers observed that Ott's condition remained the same. Treatment notes in October 2013 and November 2013 reflects similar complaints of symptoms and identical examination findings. And the evidence also shows that Ott was participating in pain management treatment at this time.
In sum, during the relevant period, Ott attempted multiple modalities to address her symptoms, including surgeries and pain management with injections, physical therapy, and medications. So the evidence overwhelmingly shows that Ott pursued treatments of all types and that she was proactive in addressing her symptoms. The instances when she declined to pursue more treatment were rare and not unreasonable.
So while an ALJ's credibility determination is entitled to deference, ALJ Vogel's reasons for failing to credit fully Ott's statements of her symptoms and limitations lack the support of substantial evidence. Medical records, including her reports to providers of her symptoms, examination findings, and objective evidence through imaging studies, corroborate Ott's statements. Ott's reports fit with the objective findings over the course of several years. And her statements about her daily activities do little to detract from the overwhelming evidence of her limited functioning. Thus, these daily activities do not meaningfully apprise an inquiry into Ott's ability to engage in full-time work.
Because substantial evidence does not support ALJ Vogel's reasons to discount Ott's statements, the undersigned cannot defer to his evaluation of Ott's credibility. So Ott's motion on this issue warrants remand.
III. Conclusion
For these reasons, the undersigned recommends that the court grant Ott's Motion for Judgment on the Pleadings (D.E. 35), deny Saul's Motion for Judgment on the Pleadings (D.E. 37), and remand this matter to the Commissioner for further consideration.
The Clerk of Court must serve a copy of this Memorandum and Recommendation ("M&R") on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals. Dated: July 16, 2019.
/s/_________
ROBERT T. NUMBERS, II
UNITED STATES MAGISTRATE JUDGE