Opinion
Civil Action 8:22-cv-04301-DCN-JDA
01-25-2024
Rapheal M. S.,[1] Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Jacquelyn D. Austin United States Magistrate Judge
This matter is before the Court for a Report and Recommendation pursuant to Local Civil Rule 73.02(B)(2)(a), D.S.C., and 28 U.S.C. § 636(b)(1)(B). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of a final decision of the Commissioner of Social Security (“the Commissioner”), denying Plaintiff's claim for disability insurance benefits (“DIB”). For the reasons set forth below, it is recommended that the decision of the Commissioner be affirmed.
A Report and Recommendation is being filed in this case, in which one or both parties declined to consent to disposition by a magistrate judge.
PROCEDURAL HISTORY
In February 2020, Plaintiff filed an application for DIB alleging disability beginning June 30, 2014. [R. 249-50.] The claim was denied initially and on reconsideration by the Social Security Administration (“the Administration”). [R. 98-138, 144-47, 149-52.] Plaintiff requested a hearing before an administrative law judge (“ALJ”), and on November 10, 2021, ALJ Richard LaFata conducted a de novo telephonic hearing on Plaintiff's claim. [R. 35-97.]
The ALJ issued a decision on January 27, 2022, finding Plaintiff not disabled under the Social Security Act (the “Act”). [R. 15-34.] At Step 1, the ALJ found Plaintiff met the Act's insured-status requirements through December 31, 2023, and had not engaged in substantial gainful activity since June 30, 2014, the alleged onset date. [R. 17, Findings 1 & 2.] At Step 2, the ALJ found that Plaintiff had a severe impairment of degenerative disc disease of the cervical and lumbar spine. [R. 17, Finding 3.] The ALJ also found that Plaintiff had non-severe impairments of diabetes mellitus, post trauma headaches, and depression. [R. 18-19.] At Step 3, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 19, Finding 4.]
The five-step sequential analysis used to evaluate disability claims is discussed in the Applicable Law section, infra.
Before addressing Step 4, Plaintiff's ability to perform his past relevant work, the ALJ found that Plaintiff retained the following residual functional capacity (“RFC”):
[Plaintiff] has the [RFC] to perform sedentary work as defined in 20 CFR 404.1567(a) except lifting, carrying, pushing, or pulling 10 pounds occasionally and less than 10 pounds frequently; sitting for 6 hours; standing or walking for 2 hours; operation of hands controls would be frequent on the left and frequent on the right; push/pull as much as can lift/carry. He is further limited to occasionally reaching overhead on a bilateral basis and performing all other reaching frequently and bilaterally; as well as frequently and bilaterally handling, fingering, or feeling items. He can climb ramps and stairs, balance, stoop, kneel, and crouch occasionally but can never climb ladders, ropes, or scaffolds or crawl. He can never work at unprotected heights and must avoid concentrated exposure
to extreme cold and to tools and work processes that would expose [Plaintiff] to vibration on a concentrated basis as to the upper and lower extremities. He would require the use of a handheld assistive device in the nature of a cane for prolonged ambulation and for ascending or descending slopes or for traversing over uneven terrain. He would need a sit/stand option defined as a brief postural change at or near the workstation, no more frequently than up to twice an hour and a duration no greater than up to 5 minutes each. His time off task would be accommodated by normal breaks.[R. 20, Finding 5.] Based on this RFC finding, the ALJ determined at Step 4 that Plaintiff was unable to perform his past relevant work as a dock hand. [R. 28, Finding 6.] Upon considering Plaintiff's age, education, work experience, RFC, and the testimony of the vocational expert (“VE”), however, the ALJ found that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. [R. 28, Finding 10.] Thus, the ALJ found that Plaintiff had not been under a disability as defined by the Act from June 30, 2014, through the date of the decision. [R. 29, Finding 11.]
Plaintiff requested Appeals Council review, which was denied. [R. 1-6.] Plaintiff filed this action for judicial review on November 29, 2022. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff contends the ALJ's decision is not supported by substantial evidence and should be reversed and remanded. [Docs. 16; 18.] Specifically, Plaintiff argues the ALJ erred in evaluating opinion evidence and, thus, erred in his findings regarding Plaintiff's RFC. [Docs. 16 at 14-18; 18.] The Commissioner, on the other hand, contends that the ALJ's decision is supported by substantial evidence. [Doc. 17.]
STANDARD OF REVIEW
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla-i.e., the evidence must do more than merely create a suspicion of the existence of a fact and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) (“Substantial evidence, it has been held, is evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is ‘substantial evidence.'”).
Where conflicting evidence “allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ),” not on the reviewing court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991) (stating that where the Commissioner's decision is supported by substantial evidence, the court will affirm, even if the reviewer would have reached a contrary result as finder of fact and even if the reviewer finds that the evidence preponderates against the Commissioner's decision). Thus, it is not within the province of a reviewing court to determine the weight of the evidence, nor is it the court's function to substitute its judgment for that of the Commissioner so long as the decision is supported by substantial evidence. See Bird v. Comm'r, 699 F.3d 337, 340 (4th Cir. 2012); Laws, 368 F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).
The reviewing court will reverse the Commissioner's decision on plenary review, however, if the decision applies incorrect law or fails to provide the court with sufficient reasoning to determine that the Commissioner properly applied the law. Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980); see also Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner's decision “is in clear disregard of the overwhelming weight of the evidence, Congress has empowered the courts to modify or reverse the [Commissioner's] decision ‘with or without remanding the cause for a rehearing.'” Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013) (quoting 42 U.S.C. § 405(g)). Remand is unnecessary where “the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no purpose.” Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974).
The court may remand a case to the Commissioner for a rehearing under sentence four or sentence six of 42 U.S.C. § 405(g). Shalala v. Schafer, 509 U.S. 292, 296 (1993). To remand under sentence four, the reviewing court must find either that the Commissioner's decision is not supported by substantial evidence or that the Commissioner incorrectly applied the law relevant to the disability claim. See, e.g., Jackson v. Chater, 99 F.3d 1086, 1090-91 (11th Cir. 1996) (holding remand was appropriate where the ALJ failed to develop a full and fair record of the claimant's RFC); Brenem v. Harris, 621 F.2d 688, 690-91 (5th Cir. 1980) (holding remand was appropriate where record was insufficient to affirm but was also insufficient for court to find the claimant disabled). Where the court cannot discern the basis for the Commissioner's decision, a remand under sentence four is usually the proper course to allow the Commissioner to explain the basis for the decision or for additional investigation. See Radford v. Comm'r, 734 F.3d 288, 295 (4th Cir. 2013);see also Smith v. Heckler, 782 F.2d 1176, 1181-82 (4th Cir. 1986) (remanding case where decision of ALJ contained “a gap in its reasoning” because ALJ did not say he was discounting testimony or why); Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (remanding case where neither the ALJ nor the Appeals Council indicated the weight given to relevant evidence). On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. See Smith, 782 F.2d at 1182 (“The [Commissioner] and the claimant may produce further evidence on remand.”). After a remand under sentence four, the court enters a final and immediately appealable judgment and then loses jurisdiction. Sargent, 941 F.2d 1207.
In contrast, sentence six provides:
The court may . . . at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding ....42 U.S.C. § 405(g). A reviewing court may remand a case to the Commissioner on the basis of new evidence only if four prerequisites are met: (1) the evidence is relevant to the determination of disability at the time the application was first filed; (2) the evidence is material to the extent that the Commissioner's decision might reasonably have been different had the new evidence been before him; (3) there is good cause for the claimant's failure to submit the evidence when the claim was before the Commissioner; and (4) the claimant made at least a general showing of the nature of the new evidence to the reviewing court. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985), superseded by amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec'y, Dep't of Health & Human Servs., 925 F.2d 769, 774 (4th Cir. 1991). With remand under sentence six, the parties must return to the court after remand to file modified findings of fact. Melkonyan, 501 U.S. at 98. The reviewing court retains jurisdiction pending remand and does not enter a final judgment until after the completion of remand proceedings. See Allen v. Chater, 67 F.3d 293 (4th Cir. 1995) (unpublished table decision) (holding that an order remanding a claim for Social Security benefits pursuant to sentence six of 42 U.S.C. § 405(g) is not a final order).
APPLICABLE LAW
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). “Disability” is defined as:
the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 consecutive months.Id. § 423(d)(1)(A).
I. The Five-Step Evaluation
To facilitate uniform and efficient processing of disability claims, federal regulations have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (noting a “need for efficiency” in considering disability claims). The ALJ must consider whether (1) the claimant is engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the impairment meets or equals an impairment included in the Administration's Official Listings of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents the claimant from performing past relevant work; and (5) the impairment prevents the claimant from having substantial gainful employment. 20 C.F.R. § 404.1520. Through the fourth step, the burden of production and proof is on the claimant. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). The claimant must prove disability on or before the last day of her insured status to receive disability benefits. Everett v. Sec'y of Health, Educ. & Welfare, 412 F.2d 842, 843 (4th Cir. 1969). If the inquiry reaches step five, the burden shifts to the Commissioner to produce evidence that other jobs exist in the national economy that the claimant can perform, considering the claimant's age, education, and work experience. Grant, 699 F.2d at 191. If at any step of the evaluation the ALJ can find an individual is disabled or not disabled, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
A. Substantial Gainful Activity
“Substantial gainful activity” must be both substantial-involves doing significant physical or mental activities, 20 C.F.R. § 404.1572(a)-and gainful-done for pay or profit, whether or not a profit is realized, Id. § 404.1572(b). If an individual has earnings from employment or self-employment above a specific level set out in the regulations, he is generally presumed to be able to engage in substantial gainful activity. Id. §§ 404.1574-.1575.
B. Severe Impairment
An impairment is “severe” if it significantly limits an individual's ability to perform basic work activities. See id. § 404.1522. When determining whether a claimant's physical and mental impairments are sufficiently severe, the ALJ must consider the combined effect of all of the claimant's impairments. 42 U.S.C. § 423(d)(2)(B). The ALJ must evaluate a disability claimant as a whole person and not in the abstract, having several hypothetical and isolated illnesses. Walker v. Bowen, 889 F.2d 47, 49-50 (4th Cir. 1989) (stating that, when evaluating the effect of a number of impairments on a disability claimant, “the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them”). Accordingly, the ALJ must make specific and well-articulated findings as to the effect of a combination of impairments when determining whether an individual is disabled. Id. at 50 (“As a corollary to this rule, the ALJ must adequately explain his or her evaluation of the combined effects of the impairments.”). If the ALJ finds a combination of impairments to be severe, “the combined impact of the impairments shall be considered throughout the disability determination process.” 42 U.S.C. § 423(d)(2)(B).
C. Meets or Equals an Impairment Listed in the Listings of Impairments
If a claimant's impairment or combination of impairments meets or medically equals the criteria of a listing found at 20 C.F.R. Pt. 404, Subpt. P, App.1 and meets the duration requirement found at 20 C.F.R. § 404.1509, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience. 20 C.F.R. § 404.1520(d).
D. Past Relevant Work
The assessment of a claimant's ability to perform past relevant work “reflect[s] the statute's focus on the functional capacity retained by the claimant.” Pass v. Chater, 65 F.3d 1200, 1204 (4th Cir. 1995). At this step of the evaluation, the ALJ compares the claimant's RFC with the physical and mental demands of the kind of work he has done in the past to determine whether the claimant has the RFC to do his past work. 20 C.F.R. § 404.1560(b).
RFC is “the most [a claimant] can still do despite [his] limitations.” 20 C.F.R. § 404.1545(a)(1).
E. Other Work
As previously stated, once the ALJ finds that a claimant cannot return to her prior work, the burden of proof shifts to the Commissioner to establish that the claimant could perform other work that exists in the national economy. See 20 C.F.R. § 404.1520(f)-(g); Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992). To meet this burden, the Commissioner may sometimes rely exclusively on the Medical-Vocational Guidelines (the “grids”). Exclusive reliance on the “grids” is appropriate where the claimant suffers primarily from an exertional impairment, without significant nonexertional factors. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e); Gory v. Schweiker, 712 F.2d 929, 930-31 (4th Cir. 1983) (stating that exclusive reliance on the grids is appropriate in cases involving exertional limitations). When a claimant suffers from both exertional and nonexertional limitations, the grids may serve only as guidelines. Gory, 712 F.2d at 931. In such a case, the Commissioner must use a VE to establish the claimant's ability to perform other work. 20 C.F.R. § 404.1569a; see Walker, 889 F.2d at 49-50 (“Because we have found that the grids cannot be relied upon to show conclusively that claimant is not disabled, when the case is remanded it will be incumbent upon the [Commissioner] to prove by expert vocational testimony that despite the combination of exertional and nonexertional impairments, the claimant retains the ability to perform specific jobs which exist in the national economy.”). The purpose of using a vocational expert is “to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform.” Walker, 889 F.2d at 50. For the vocational expert's testimony to be relevant, “it must be based upon a consideration of all other evidence in the record, . . . and it must be in response to proper hypothetical questions which fairly set out all of claimant's impairments.” Id. (citations omitted).
An exertional limitation is one that affects the claimant's ability to meet the strength requirements of jobs. 20 C.F.R. § 404.1569a(a). A nonexertional limitation is one that affects the ability to meet the demands of the job other than the strength demands. Id. Examples of nonexertional limitations include but are not limited to difficulty functioning because of being nervous, anxious, or depressed; difficulty maintaining attention or concentrating; difficulty understanding or remembering detailed instructions; difficulty seeing or hearing. 20 C.F.R. § 404.1569a(c)(1).
II. Developing the Record
The ALJ has a duty to fully and fairly develop the record. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). The ALJ is required to inquire fully into each relevant issue. Snyder, 307 F.2d at 520. The performance of this duty is particularly important when a claimant appears without counsel. Marsh v. Harris, 632 F.2d 296, 299 (4th Cir. 1980). In such circumstances, “the ALJ should scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts, . . . being especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited.” Id. (internal quotations and citations omitted).
III. Medical Opinions
For claims filed on or after March 27, 2017, the applicable regulations require ALJs to consider the persuasiveness of each medical opinion of record in accordance with the following factors: (1) supportability; (2) consistency; (3) relationship with the claimant; (4) specialization; and (5) other factors that tend to support or contradict the opinion. 20 C.F.R. § 404.1520c(b), (c). Regarding supportability, “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion . . . the more persuasive the medical opinion will be.” 20 C.F.R. § 404.1520c(c)(1). As for the relationship with the claimant, ALJs consider the “length of the treatment relationship,” the “[f]requency of examinations,” the “[p]urpose of the treatment relationship,” the “[e]xtent of the treatment relationship,” and whether the source has examined the claimant. 20 C.F.R. § 404.1520c(c)(3).
The new regulations define the term “medical opinion” as “a statement from a medical source about what you can still do despite your impairment(s) and whether you have one or more impairment-related limitations or restrictions.” 20 C.F.R. § 404.1513(a)(2).
IV. Medical Tests and Examinations
The ALJ is required to order additional medical tests and exams only when a claimant's medical sources do not give sufficient medical evidence about an impairment to determine whether the claimant is disabled. 20 C.F.R. § 404.1517; see also Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986). The regulations are clear: a consultative examination is not required when there is sufficient medical evidence to make a determination on a claimant's disability. 20 C.F.R. § 404.1517. Under the regulations, however, the ALJ may determine that a consultative examination or other medical tests are necessary. Id.
V. Pain
Congress has determined that a claimant will not be considered disabled unless he furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing the existence of a medical impairment that could reasonably be expected to produce the pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). Social Security Ruling (“SSR”) 16-3p provides, “[i]n considering the intensity, persistence, and limiting effects of an individual's symptoms, we examine the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record.” Social Security Ruling 16-3p Titles II and XVI: Evaluation of Symptoms In Disability Claims, 82 Fed.Reg. 49,462, 49,464(Oct. 25, 2017); see also 20 C.F.R. § 404.1529(c)(1)-(2) (outlining evaluation of pain).
In evaluating claims of disabling pain, the ALJ must proceed in a two-part analysis. Morgan v. Barnhart, 142 Fed.Appx. 716, 723 (4th Cir. 2005) (unpublished opinion); see also SSR 16-3p, 82 Fed.Reg. at 49,463. First, “the ALJ must determine whether the claimant has produced medical evidence of a ‘medically determinable impairment which could reasonably be expected to produce” the alleged symptoms. Id. (quoting Craig, 76 F.3d at 594); see SSR 16-3p, 82 Fed.Reg. at 49,463. Second, the ALJ must evaluate “the intensity and persistence of an individual's symptoms such as pain and determine the extent to which an individual's symptoms limit his or her ability to perform work-related activities . . . or to function independently.” SSR 16-3p, 82 Fed.Reg. at 49,464; see 20 C.F.R. § 404.1528 (noting that the ALJ must consider all of a claimant's statements about his symptoms, including pain, and determine the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence).
APPLICATION AND ANALYSIS
Medical Evidence
Plaintiff was involved in a work-related motor vehicle accident in June 2014. [See R. 21.] According to a progress note from Dr. Buncher dated July 7, 2014, Plaintiff was driving a 10-foot long U-haul work truck when an 18-wheeler truck hit the trailer portion of the U-haul on the driver side. [R. 565.] On impact, Plaintiff was thrown about and the left side of his body hit the door. [Id.] Plaintiff's employer transported him to AOH for a drug test and then to Nason Medical Center. [Id.] Dr. Buncher assessed Plaintiff with neck sprain and strain, thoracic sprain and strain, lumbosacral joint and ligament sprain and strain, unspecified temporomandibular joint disorders, sprain and strain of the shoulder and upper arm, and post-traumatic headache. [R. 566.] The treatment plan was for Plaintiff to begin acupuncture, therapy, and pharmacologic management. [R. 566-67.] Dr. Buncher scheduled follow up for one week and indicated that Plaintiff should remain out of work until the next visit. [R. 567.]
Plaintiff saw Dr. Buncher again on July 14, 2014. [R. 568.] On that date, Dr. Buncher assessed Plaintiff with displacement of cervical intervertebral disc without myelopathy, neck sprain and strain, thoracic sprain and strain, lumbosacral joint and ligament sprain and strain, unspecified temporomandibular joint disorders, sprain and strain of the shoulder and upper arm, unspecified myalgia and myositis, and thoracic or lumbosacral neuritis or radiculitis. [R. 569.] Dr. Buncher ordered an MRI of the cervical spine based on numbness and tingling in Plaintiff's left upper extremity and concern for cervical disc displacement and radiculitis at ¶ 5/6 left. [R. 569.] He also continued the treatment plan of acupuncture, therapy, and pharmacologic management; scheduled another follow-up visit in one week, and again indicated that Plaintiff should remain out of work until the next visit. [R. 569-70.]
The lumbar MRI revealed findings compatible with degenerative disease as well as annular tears at 3 levels and contact of the L5, S1 nerve roots, making Plaintiff a candidate for lumbar epidural corticosteroid injection. [R. 578.] However, his internal medicine physician Dr. Monica Lominchar recommended against the injection due to poor control of Plaintiff's diabetes. [R. 580, 583.] Treatment notes from August 20, 2014, indicate Plaintiff was discharged from physical therapy because he was not making much progress due to his limitations secondary to pain with exercises done at the therapy facility. [R. 583.]
Dr. Buncher continued to treat Plaintiff regularly and, between 2014 and 2016, documented continued complaints of high pain levels [e.g., R. 572 (9/10), 576 (8/10), 579 (9/10), 581 (8/10), 584 (8/10), 587 (7-8/10), 618 (9/10), 719 (8/10)]; pain, numbness, and tingling L5/S1 bilaterally when sitting and standing for long periods of time [e.g., R. 573, 575, 724]; regular headaches [e.g., R. 576, 584, 587, 688, 703, 724]; and numbness, tingling, and discomfort in the left upper extremity radiating from the upper arm to the left hand [e.g., R. 579, 584, 587, 685, 716, 724.]
In December 2015, Donald R. Johnson II, M.D., at the Southeastern Spine Institute compared Plaintiff's July 2014 MRI with an MRI from November 2015 and noted no significant change. [R. 621.] Given Plaintiff's age at the time and that operative treatment would require complete discectomy and fusion, Dr. Johnson did not recommend surgery and instead recommended continued nonoperative treatment. [Id.] In August 2016, Michael Wildstein, M.D., of the Wildstein Spine Center evaluated Plaintiff and reviewed his MRIs. [R. 755-58.] Dr. Wildstein “did not think that surgery for the low back had a reasonable chance of helping” Plaintiff. [R. 758.] Dr. Wildstein further opined that, “based on [his] experience as a board-certified, fellowship-trained orthopaedic spine surgeon,” he felt that Plaintiff had reached maximum medical improvement with a permanent impairment rating at 6% whole person. [Id.]
In treatment notes dated March 11, 2019, Dr. Buncher noted:
Chronic neck pain - Prior to the wreck, the patient would have neck pain which occur[ed] a few times per week, lasting about a day, rated 7/10. Following the wreck, neck pain is constant and rated 9/10, Chronic low back pain - Prior to the wreck, the patient had daily low back pain rated 6/10. This was associated with radiating pain to both posterior thighs, calves, and into his feet which occurred with sitting, laying, or standing for long periods of time and would last until he repositioned himself. Following the wreck, low back pain is rated 8-9/10. Radiating pain is now also felt in the lateral thighs. This is felt constantly. The posterior radiating pain frequency has remained the same, but the intensity is worse, Headaches -Prior to the wreck headaches were occipital, aching, 2x per week, lasting 8 hours. Denies photophobia, phonophobia, nausea, vomiting, vision change. Following the wreck, headaches are occipital and temporal, throbbing, occur once per day, lasting 8 hours. Admits to photophobia, difficulty concentrating. Denies phonophobia, nausea, vomiting, vision change, memory loss[.][R. 487.]
Dr. Buncher's Opinions
On December 4, 2018, Dr. Buncher completed a form noting that Plaintiff was diagnosed with chronic low back pain, chronic migraines, radiculopathy, and medication effects and that he was “totally and permanently disabled” from his June 2014 work injury. [R. 743-44.] Dr. Buncher also reviewed five different job descriptions-for a reservation sales agent, dispatcher, customer service representative, telecommunicator, and administrative telecommunicator-listing functional requirements for the jobs. [R. 737-42.] Dr. Buncher indicated, without explanation, that Plaintiff was unable to perform any of the jobs. [Id.]
The ALJ's Evaluation of Dr. Buncher's Opinions
The ALJ explained his evaluation of Dr. Buncher's opinions as follows:
Jeffrey Buncher, MD, completed a disability medical evaluation for[m] related to [Plaintiff's] work injury in December 2018. Dr. Buncher stated [Plaintiff's] work injury had left him totally and permanently disabled from chronic low back pain with radiculopathy and medication side effects. (Exhibit 22F) The opinion was provided on a pre-prepared form with vocational information for consideration by the doctor. Dr. Buncher's opinion that the claimant is disabled is not persuasive as that is a determination regarding disability that is an issue explicitly reserved to the Commissioner of the Social Security Administration. See 20 CFR § 404.1527(e). Further, Dr. Buncher's opinion contains no supporting rational[e] or specificity as to what exact symptom and resulting functional limitations cause him to be permanently disabled; nor are there references to support in the clinical examination notes. As such his opinion is not persuasive. Dr. Buncher also reviewed a series of sedentary job descriptions and indicated the claimant could not perform any of them, but he did not specify what limitations the claimant had that made him unable to perform each of the positions. He did not indicate what about each job precluded the claimant's ability to perform and did not provide a rationale to include what his actual functional limits
would be. Further, these opinions are beyond Dr. Buncher's expertise as he is neither an occupational medical doctor nor a vocational rehabilitation professional. These opinions are conclusory and not supported and as such are not persuasive. (Exhibit 21F)[R. 25.]
Discussion
For benefits applications filed on or after March 27, 2017, such as Plaintiff's, the Administration has enacted substantial revisions to the regulations that govern the evaluation of opinion evidence. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed.Reg. 5844-01, 2017 WL 168819 (Jan. 18, 2017). Under these new regulations, ALJs are not required to assign an evidentiary weight to medical opinions or to accord special deference to treating source opinions. See 20 C.F.R. § 404.1520c(a) (providing that ALJs “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from [a claimant's] medical sources”). Rather, an ALJ must determine and “articulate in [the] . . . decision how persuasive [he or she] find[s] all of the medical opinions and all of the prior administrative medical findings in [a claimant's] case record.” 20 C.F.R. § 404.1520c(b). In determining the persuasiveness of an opinion or finding, the ALJ should consider and articulate how persuasive he finds all of the medical opinions in the record based on the following factors: (1) supportability, (2) consistency, (3) relationship with the claimant, (4) specialization, and (5) other factors that tend to support or contradict the opinion, with supportability and consistency being the most important factors. 20 C.F.R. § 404.1520c(b)(2), (c).
In this case, Plaintiff argues that Dr. Buncher's opinions constitute “medical opinions” within the meaning of these provisions and that the ALJ erred in not properly evaluating Dr. Buncher's opinions under the rules applicable for the evaluation of medical opinions. [Docs. 16 at 14-18; 18.] The Commissioner contends that Dr. Buncher's opinions do not constitute medical opinions and thus that the ALJ did not err in applying the rules applicable to such opinions. [Doc. 17 at 11.] The Court agrees with the Commissioner.
Because the Court concludes that affirmance is appropriate on this basis, the Court declines to address the Commissioner's alternative argument.
The regulations provide that
[a] medical opinion is a statement from a medical source about what [a claimant] can still do despite [his] impairment(s) and whether [the claimant has] one or more impairment-related limitations or restrictions in the following abilities: . . .
(i) [The] ability to perform physical demands of work activities, such as sitting, standing, walking, lifting, carrying, pushing, pulling, or other physical functions (including manipulative or postural functions, such as reaching, handling, stooping, or crouching);
(ii) [The] ability to perform mental demands of work activities, such as understanding; remembering; maintaining concentration, persistence, or pace; carrying out instructions; or responding appropriately to supervision, co-workers, or work pressures in a work setting;
(iii) [The] ability to perform other demands of work, such as seeing, hearing, or using other senses; and
(iv) [The] ability to adapt to environmental conditions, such as temperature extremes or fumes.20 C.F.R. § 404.1513(a)(2). Statements that simply detail a claimant's “treatment history and symptoms, diagnos[e]s, and prognos[e]s,” but do not “set forth his abilities or specify limitations to his ability to perform [the] demands of work activities,” do not constitute medical opinions. Stephen R. v. Kijakazi, No. 1:19-cv-3405-BHH, 2021 WL 4237154, at *4 (D.S.C. Sept. 17, 2021) (alterations in original), appeal filed, No. 21-2292 (4th Cir. Nov. 17, 2021). Similarly, a statement that does not identify “particular abilities or restrictions that were imposed by [the claimant's] impairments” does not constitute a medical opinion. Ryant v. Saul, No. 1:19-2377-MGL-SVH, 2020 WL 5128492, at *11 (D.S.C. July 30, 2020), Report and Recommendation adopted by 2020 WL 5107552 (D.S.C. Aug. 31, 2020). The regulations also specifically identify certain categories of statements that are “inherently neither valuable nor persuasive,” including statements on issues reserved to the Commissioner, such as “statements that [the claimant is] or [is] not disabled” and whether the claimant's RFC “prevents [him] from doing past relevant work.” 20 C.F.R. § 404.1520b(c)(3)(i), (vi). A conclusion on one of those topics does not constitute a medical opinion as defined by the applicable regulations. See Cullen v. Kijakazi, No. 6:20-cv-4061-SAL, 2022 WL 92616, at *3 (D.S.C. Jan. 10, 2022).
In this case, Dr. Buncher identified what he considered to be the relevant diagnoses, but did not “set forth [Plaintiff's] abilities or specify limitations to his ability to perform [the] demands of work activities.” Stephen R., 2021 WL 4237154, at *4. Nor did Dr. Buncher identify “particular abilities or restrictions that were imposed by Plaintiff's impairments.” Ryant, 2020 WL 5128492, at *11. Rather, he simply conveyed his unexplained conclusion that Plaintiff was totally disabled and that he could not perform five specific jobs. As such, Dr. Buncher's opinions do not constitute medical opinions within the meaning of the applicable provisions and the rules governing medical opinions do not apply. Stephen R., 2021 WL 4237154, at *4; Ryant, 2020 WL 5128492, at *11.
In arguing that the ALJ's evaluation was erroneous, Plaintiff contends that “the ALJ failed to articulate any specific evidence that undermined Dr. Buncher's opinions.” [Doc. 16 at 17.] However, the ALJ had no reason to cite to such evidence because his finding that the opinions were unpersuasive was not based on a conclusion that they were inconsistent with other evidence.
For this reason, the Court recommends that the ALJ's decision be affirmed.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that the Commissioner's decision be AFFIRMED.
IT IS SO RECOMMENDED.