Opinion
Civil Action 5:23-2180-MGL-KDW
05-30-2024
Jerry Brice Roof, Jr., Plaintiff, v. Martin O'Malley, Commissioner of Social Security,[1] Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE.
This appeal from a denial of social security benefits is before the court for a Report and Recommendation (“Report”) pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying his claim for Disability Insurance Benefits (“DIB”) pursuant to the Social Security Act (“the Act”). For the reasons that follow, the undersigned recommends that the Commissioner's decision be remanded for further administrative action as addressed herein.
I. Relevant Background
A. Procedural History
On September 23, 2015, Plaintiff protectively filed for DIB under Title II of the Act, 42 U.S.C. §§ 401-433, alleging he became disabled on March 19, 2013. Tr. 157-58. After being denied initially, Tr. 72, and upon reconsideration, Tr. 88, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), Tr. 99-100. ALJ Wendell M. Sims conducted a hearing on March 15, 2018. Tr. 33-61. The ALJ denied Plaintiff's claim in a decision dated May 25, 2018. Tr. 15-28. Plaintiff requested review of this decision from the Appeals Council. Tr. 153-55. After granting Plaintiff's request for an extension, Tr. 9-10, the Appeals Council denied his request on March 29, 2019, making the ALJ's May 2018 decision the Commissioner's final decision for purposes of judicial review, Tr. 1-5.
After the Appeals Council denied his requests for review, on May 30, 2019 Plaintiff appealed the unfavorable decision to the United States District Court for the District of South Carolina arguing that the ALJ failed to explain his residual functional capacity (“RFC”) finding as required by SSR 96-8p, and the ALJ failed to properly assess medical source opinion evidence. See Tr. 1056-79, Report and Recommendation in Roof v. Saul, C/A No. 5:19-cv-1571-MGL-KDW, ECF No. 25. Plaintiff obtained an Order, filed June 30, 2020, reversing the Commissioner's decision and remanding the case for further proceedings based on the findings in the Report and Recommendation of the Magistrate Judge. Tr. 1053-54. Based on the court's Order, on September 17, 2020, the Appeals Council vacated the final decision of the Commissioner and remanded the matter “for further proceedings consistent with the order of the court.” Tr. 1084.
ALJ Ronald Fleming conducted a second administrative hearing on January 21, 2021 taking testimony from Plaintiff and VE Robert Brabham. Tr. 985-1021. On February 16, 2021, ALJ Fleming issued an unfavorable decision denying Plaintiff's claim. Tr. 967-79. On March 23, 2021, Plaintiff filed Written Exceptions to the ALJ's decision with the Appeals Council. Tr. 1133-37. On September 10, 2021, the Appeals Council declined to assume jurisdiction, thereby making the ALJ's February 2021 decision the final decision of the Commissioner. Tr. 958-62.
Plaintiff filed a new civil action on November 11, 2021, see Roof v. Kijakazi, C/A No. 5:21-cv-3702-KDW, ECF No. 1, and on May 12, 2022, the Commissioner filed a motion to remand the case because it “determined that additional evaluation of Plaintiff's claim is warranted and further administrative proceedings are necessary.” Defendant's Uncontested Motion to Remand in Roof v. Kijakazi, C/A No. 5:21-cv-3702-KDW, ECF No. 17. The court remanded the case on May 13, 2022. Tr. 1419-20.
On July 16, 2022 the Appeals Council issued an order vacating the final decision of the Commissioner and remanding the case to an ALJ. Tr. 1426-30. The Appeals Council ordered the ALJ on remand to give further consideration to Plaintiff's maximum RFC and, if warranted, obtain supplemental evidence from a VE. Tr. 1429-30.
ALJ Fleming conducted Plaintiff's third administrative hearing on October 28, 2022. Tr. 1388-1418. ALJ Fleming issued his decision denying Plaintiff's claim on January 31, 2023. Tr. 1360-72. Plaintiff filed a new civil action with this court on May 22, 2023, seeking review of the Commissioner's final decision after remand. ECF No. 1.
B. Plaintiff's Background
Plaintiff was born in June 1970 and was 42 years old as of his alleged onset date of March 19, 2013. Tr. 177. At the second administrative hearing Plaintiff amended his alleged onset date to October 1, 2014. Tr. 990, 1152. On that date he would have been 44 years old. In his form Disability Report-Adult dated September 24, 2015, Plaintiff indicated that he completed high school, did not attend special education classes, and had no other specialized job training, trade, or vocational schooling. Tr. 182. He listed his past relevant work (“PRW”) as driver for Evans Petroleum (Apr. 2006-Dec. 2007), driver for TNT Trucking (July 2007-Apr. 2008), driver for CTR Transport (Apr. 2008-Sept. 2009), driver for East Coast Towing (Sept. 2008-Apr. 2009), and driver for Propane delivery and service (May 2010-March 2011). Id. Plaintiff indicated he stopped working on March 19, 2011, due to his medical conditions that he listed as depression, anxiety, and back and hips. Tr. 181. Plaintiff indicated that he was 6'1” tall, weighed 275 pounds, and his conditions caused him pain or other symptoms. Id.
In a Disability Report-Appeal dated February 22, 2016, Plaintiff reported changes in his medical conditions which occurred December 10, 2015. Tr. 208. Plaintiff described the changes as follows:
With degenerative disk disease, my disks in my spine have continued to degenerate. I have two that no longer cushion between my vertebrae. Bending is no longer an option. Dr. Cahill (neurologist) has informed me that there is no surgery that can help with pain or give me any movement or range of motion back. My hip limits movement also. My depression is controlled by medication but it is always there. My anxiety is ok as long as I stay away from people and small places. I have driven a truck most of my life. I had to give up my CDL license because I could no longer sit or safely operate a commercial vehicle.Id. Regarding his daily activities Plaintiff indicated: “Loss in range of motion in bending and reaching down. I have to use a cane to walk, I have fallen several times after losing my balance.” Tr. 212. In a subsequent Disability Report-Appeal dated May 19, 2016, Plaintiff reported changes to his medical conditions that occurred in Spring 2016. Plaintiff described these changes as follows:
The ability to walk unaided is no longer an option. Sitting is a chore because of my hip and back. My back does not allow me to do any lifting, turning or twisting. I have had to increase my pain medication. I cannot put my shoes and socks on. I have to have help to get dressed daily. I am not able to cut grass on a riding mower. I have stopped driving, because of my reflexes are not as they should be. I would be a danger on the road. My arthritis in my hands is limiting the movement in my fingers and hands.Tr. 231.
C. The Second and Third Administrative Hearings
A summary of Plaintiff's first administrative hearing on March 15, 2018 before ALJ Wendell M. Sims is available in C/A No. 5:19-cv-1571-MGL at ECF No. 25. The complete hearing transcript is available at Tr. 33-61.
1. Plaintiff's Second Administrative Hearing
Plaintiff appeared with his attorney for his second administrative hearing on January 21, 2021, before ALJ Fleming in Columbia, South Carolina. Tr. 985-1021. VE Robert Brabham also appeared and testified. Id. Due to the extraordinary circumstances of the coronavirus pandemic, the hearing was conducted telephonically. Tr. 988. Plaintiff amended his onset date to October 1, 2014. Tr. 990, 1152.
The ALJ noted the impairments he found for Plaintiff which included depression, anxiety, degenerative disc disease of the lumbar spine, hypertension, osteoarthritis of the right hip with a labrum tear, obesity, headaches, insomnia, hyperlipidemia or high cholesterol, acid reflux, and degenerative joint disease of the right knee. Tr. 990. Plaintiff's counsel noted that Plaintiff also was diagnosed with diabetes in 2015. Id. The ALJ indicated that he would take all of these impairments into consideration. Id.
a. Plaintiff's Testimony
In response to questions from the ALJ Plaintiff confirmed his current age of 50 years old, his height of 6'2”, weight of 288 pounds, and that he is right-handed. Tr. 991. Plaintiff testified that he is married and has adult children. Id. He stated that he lives in “a double-wide” with his wife and pets. Tr. 992. Plaintiff testified that he has no income, but that his wife works as a teacher for Orangeburg County. Id. He stated that they do not get food stamps. Id. Plaintiff testified that he has a driver's license but that he has not driven in three years. He stated that his wife takes him where he needs to go, and that he only needs to go to the doctor as his pharmacy delivers his medications. Id. Plaintiff testified that he completed the 12th grade, can read and write, and he could pay bills if he had the money. Tr. 993. Plaintiff stated that he has not worked since October 1, 2014. He affirmed that he had a shaved ice business and his income was between $7000 and $8000 a year as it was seasonal and only in the summer. Id. He stated that his last full-time job was with a propane company, TNT of York County. Id. He testified that he “was doing sales and installs of lawns and propane tanks, and with some delivery if [they] got behind.” Id. Plaintiff stated that the most he had to lift was 25 or 30 pounds as the trucks had cranes or hydraulics that lifted the tanks. Id. Plaintiff testified that prior to that job he worked for Premium of North Carolina working for a towing company doing roadside assistance. Tr. 994. He stated that the maximum amount he had to lift was between 50 and 60 pounds. Id. Plaintiff testified that in 2007 he worked for Format, Inc. as a driver-dispatcher for their dump truck division. Id. He stated that in that position he did not lift “much more than 20 or 25 pounds.” Id. Plaintiff testified that in 2005 he worked for Evans Petroleum delivering petroleum products. He stated that he moved 55-gallon drums using specialized hand-trucks and the weight was between 50-100 pounds. Tr. 994-95. Plaintiff testified that prior to that he worked for Colt Petroleum. Tr. 995. Plaintiff stated that he started as a delivery driver and worked his way “up to a market manager.” Id. He stated that as a delivery driver he lifted “50 to 100 pounds” and as market manager he lifted “25 to 30.” Id.
The ALJ noted that his next line of questioning applied to the period prior to December 31, 2016. Tr. 996. The ALJ asked Plaintiff if he was taking medications for his diagnosed depression and anxiety. Plaintiff testified that he was and they helped to “a certain extent[.]” Id. Plaintiff testified that he was not seeing a counselor or therapist, and he had never been hospitalized in a mental ward overnight for depression or anxiety. Id. Plaintiff testified that when he has an “episode” he goes to his room and it “may take a couple of hours, it may take a couple of days” before he “come[s] out of it” and is okay. Id. Plaintiff testified that he has panic attacks if he is “in a crowd of people.” Tr. 997. He stated that the attacks last “30 to 45 minutes, sometimes several hours.” Id. Plaintiff affirmed that he was having problems with his back-he had pain in his lower back and problems with range of motion. Id. He rated his back pain as “2 to a 4” on a ten-point scale, and he was taking Norco. Id. Plaintiff testified that he was told by a doctor at Ortho Carolina that he needed fusion surgery on L1, 2, and 3. Tr. 998. Plaintiff testified that he never had the surgery on his back. Tr. 999. Plaintiff stated that he was having problems with his right hip, but he “thought it was all coming from [his] back.” Id. He rated that pain as two on a ten-point scale. Id. Plaintiff stated that he was also having problems with his right knee, and that it “clicks and pops and jumps out of joint.” Id. He stated that “[i]f it gets out of joint, that pain when it pops can be a 4 to a 5, and as much as a 7 or 8.” Tr. 1000. Plaintiff testified that there were occasions when he his knee popped and he “went to the floor.” Id. He stated that he used a cane that was prescribed by Dr. Hanrahan. He stated the cane helped with balance and prevented him from falling. Id. Plaintiff stated that he did not need to use the cane in the house because he can use walls or furniture for balance, but if he goes anywhere he always uses the cane. Id. Plaintiff affirmed that he was diagnosed with diabetes in 2015 and was on oral medication. Tr. 1001. He stated that he checked his blood sugar every morning and it was “170 to 190.” Id. Plaintiff stated that he did not have any diabetic ulcers. He testified that his blood sugar is not under control and when he went to the doctor last month his A1c was 8.9, and it “usually runs between 6.2 to 6.8, 6.9.” Id. Plaintiff stated the doctor “doubled” his oral medication and he will be re-evaluated in March. Id. The ALJ and Plaintiff briefly discussed his diet and need to control his diabetes. Tr. 1002. Plaintiff testified that prior to December 2016 he could sit for seven or eight minutes before needing to stand up, and he could stand and “walk around a few minutes and sit back down.” Tr. 1002-03. He stated that he could walk “maybe 40, 45 feet at the most” before needing to stop and rest. Tr. 1003. He stated that back then he “wouldn't carry a gallon of milk” and if he dropped a pencil on the floor he could not reach down and pick it up, he could not have kneeled down on one knee, he could not squat down, nor could he have been able to crawl across the floor. Id. Plaintiff testified that his wife has to put on his socks and shoes, and “anything below mid-thigh, like at [his] knee, she has to wash. She washes [his] back and [his] butt.” Id. Plaintiff stated that he cannot stand long enough to cook; he cannot wash dishes, vacuum, mop, or sweep; he does not do laundry; and he does not grocery shop. Tr. 1003-04. Plaintiff stated that he does not go to church, visit friends, or go out to eat. Tr. 1004. He testified that on a typical day he would “watch TV and have my fur baby.” Id. He stated that his wife would leave food for him in the refrigerator or microwave, and he would eat lunch and then would usually be in bed by the time she got home. Id.
In response to questions from his attorney, Plaintiff testified that he sat watching TV with his dog in a modified recliner that is higher than a regular recliner which makes it easier for him to get in and out of it. Tr. 1005. Plaintiff confirmed that he spent the majority of the day in the recliner. Id. Plaintiff stated that it was in the Fall of 2015, after he reported some episodes of falling, that he was prescribed the cane. Tr. 1006. Plaintiff testified that the cane helped with the issues of falling or losing his balance as a result of weakness in his right leg. Id. Plaintiff testified that he has had laparoscopic surgery to repair his torn labrum, bone spurs, and damaged cartilage in his right hip. Id. Plaintiff stated the surgery helped, but he still has pain and his right side is “still really weak.” Id. Plaintiff testified that it helped “a little bit” with his walking, but that his pelvis is not level and he has one leg that is shorter than the other. Tr. 1007. Plaintiff affirmed that he has a shoe insert that helps with balancing. Id. Plaintiff stated that he sometimes still feels like he is unable to lift his leg up and that is why he does not drive anymore. Id. Plaintiff testified that when he is driving in a car, he is forced to sit up to be able to see, and that puts a lot of pressure on his spine which causes pressure on his nerves and his legs go numb which affects his reaction time. Tr. 1008. Counsel noted, and Plaintiff affirmed that Dr. Hanrahan was his longtime treating doctor who is “very familiar” with his condition. Tr. 1009. Counsel noted that in September 2016 Dr. Hanrahan noted in his record that Plaintiff had given up the shaved ice business. Id. Plaintiff testified that he had someone running the business for him and he found out they were stealing from him so he sold the business. Tr. 1009-10. Plaintiff confirmed that since that time he has not had any other type of money-making business. Tr. 1010.
Plaintiff testified that in 2015-2016 his pain level was “between a 4 to a 6.” Tr. 1010. He stated that the “pain meds would take the edge off and allow [him] to be able to function a little bit[.]” Id. He confirmed that activities like standing or walking, or sitting upright for periods of time would make his pain level higher. Id. Plaintiff testified that he needs help getting dressed, and that his wife has to help him on the toilet because he is unable to reach behind himself. Tr. 1011.
b. VE's Testimony
The VE classified Plaintiff's past work CDL driver, Dictionary of Occupational Titles (“DOT”) code 904.383-010, SVP 4, at medium; tow driver, DOT code 919.663-026, SVP 3, medium; propane tank driver, DOT code 905.663-014, SVP 4, medium; service truck dispatcher, DOT code 239.367-022, SVP 4, light; market manager, DOT code 186.167-042, SVP 7, sedentary; and office manager, DOT code 169.167-034, SVP 7, sedentary. Tr. 1013. The VE clarified that the last position, office manager, referred to Plaintiff's management of the shaved ice business and the ALJ declined to consider that position. Id. The VE noted that the market manager and service truck dispatcher were composite jobs performed at the medium level. Tr. 1014. The VE noted that the various positions as drivers are defined as medium, but at times they become heavy. Id.
The ALJ asked the VE to assume a hypothetical individual of Plaintiff's age, education, and past job experience with the following limitations:
Further assume this hypothetical individual would be limited to light work, meaning occasional climbing of ramps and stairs. No climbing of ladders, ropes, or scaffolds. Occasional balancing and stooping; no kneeling, crouching, or crawling. The hypothetical individual would need a cane for ambulating.
They would need to avoid concentrated exposure to dangerous machinery and heights. They would be further limited to occupations requiring no more than simple, routine, repetitive tasks not performed in a fast-paced production environment involving only simple work-related instructions and decisions and relatively few workplace changes.
They would be further limited to occupations requiring no more than occasional interaction with coworkers, and none with members of the general public. The hypothetical individual wouldn't be able to maintain concentration, persistence, and pace for two-hour increments.Tr. 1014. The ALJ asked the VE if this hypothetical individual could perform any of Plaintiff's past relevant work and the VE responded in the negative noting that Plaintiff's past work was not light or simple, and the individual “would not be available to do that [work] without being with customers and the public and folks.” Tr. 1015. The VE testified there would unskilled light jobs available including various assembler/fabricator jobs, light, simple, approximately 360,000, sample DOT code 739.687-078; various types of hand packers, light, 400,000 jobs, sample DOT code 753.687-038; and various machine tender jobs, light, unskilled, 400,000 jobs, sample DOT code 689.685-130. Tr. 1015-16. The VE stated that “[a]ll of these are 2, they're all light, indoors, meet your requirements.” Tr. 1016.
The ALJ's second hypothetical was the same as the first “except it would be limited to sedentary work.” Tr. 1016. The ALJ asked if there would be work the hypothetical individual could perform and the VE responded:
Yes. There's some of, but not all, some of the same categories for example. In the sedentary assembler/fabricator positions, most of these are
like medical products; tubing, syringes, eyedroppers, those kinds of things.
There are approximately 80,000 sedentary, SVP 2 assembler/fabricator positions. An example would include assembling medical products, 739687-086.
The hypothetical would also allow us to consider some of the machine tenders that are also sedentary. There are about 40,000 of these positions as well. Sample code here, Your Honor, is 731-685-014.
And finally, your hypothetical would allow us to consider some of the cutters, C-U-T-T-E-R-S, cutters. Label cutters, fabric cutters, those kinds of things. There are approximately 40,000 of those that are sedentary. The sample DOT code here is 585-685-062.Tr. 1016-17.
For his final hypothetical, the ALJ posed a hypothetical “the same as hypothetical number 2, except take out the part where I said they could maintain concentration, persistence, and pace for two-hour increments, and add to it due to symptomology, the hypothetical individual would be off task 20 percent of the workday and would miss three days' work per month.” Tr. 1017. The VE testified that there would be no work available and pointed out that the issue of being off-task is not addressed in the DOT but based on his 50 years' experience, 20 percent off task would add up to “essentially 50 days, 10 weeks a year, that you have not been a productive employee, and that is simply not going to be acceptable.” Id. The VE noted that the issue of being off task is addressed by the Department of Labor and that the “Bureau of Labor statistics says the average job in America allows about one absence per month or approximately two weeks a year. In your hypothetical, three may not sound like much, but you do three times 12 months, you're up to seven weeks of absences, and that is simply not going to be available.” Id. The VE also noted that the jobs he cited “are not the kind of jobs that you can come early or stay late or take it home or make it up. You've got to be at the appointed place at the appointed time. So the absences are even more critical for the unskilled and simple or sedentary jobs.” Tr. 1018.
Plaintiff's counsel asked if the individual had to recline or lie down would that be off task, and the VE responded affirmatively. Tr. 1018. The VE stated that work would be precluded if an individual had to lie down or recline for more than 15 percent of the day. The VE noted that “15 percent ends up being seven weeks a year and that is not acceptable either.” Id. Counsel asked if the person had to change position and move around every ten minutes would that take them off task too much to maintain the jobs and the VE responded affirmatively. Id. The VE noted that “is not addressed in the DOT per se, but I think most of my counterparts and various records that I have read, if we're spending most of our time just jumping up and down changing positions, we can't be doing what we were doing if we've taken just a few moments to change position.” Tr. 1018-19. The VE stated that the expectation is the individual would stay in position for about 30 minutes. Tr. 1019.
Counsel asked if the hypothetical positions of machine tender and assembler-type work required repetitive use of arms and hands. Tr. 1019. The VE responded that it was frequent but not constant use. Id.
The VE confirmed that his testimony was consistent with the DOT except for as already noted. Id. With no further questions, the hearing adjourned. Tr. 1020.
2. Plaintiff's Third Administrative Hearing
Plaintiff appeared with his attorney for his third administrative hearing on October 28, 2022, before ALJ Fleming in Florence, South Carolina. Tr. 1388. VE Renee Smith also appeared. Id. Due to the coronavirus pandemic, the hearing was conducted telephonically. Tr. 1390. Plaintiff's counsel indicated that the amended onset of October 1, 2014 was still appropriate along with the same impairments as outlined in the prior hearing. Tr. 1393.
a. Plaintiff's Testimony
In response to questions from the ALJ Plaintiff testified that he was 52 years old, 6'2” tall, weighed 296 pounds, was right-handed, married, and had three adult daughters. Tr. 1393-94. Plaintiff testified that he moved from Lancaster to Gaston, South Carolina and lived with his wife in a double-wide trailer. Tr. 1394. Plaintiff confirmed that he has not worked anywhere since October 1, 2014. Id. Plaintiff stated that he has a driver's license but has not driven in three years because when he sits in a car his “legs go numb.” Tr. 1394-95. Plaintiff stated that his wife takes him where he needs to go. Tr. 1395. Plaintiff confirmed that he completed the 12th grade, is able to read and write, and could pay bills if he had the money. Id.
The ALJ, with consent of Plaintiff's counsel, used the jobs identified at the last decision as it related to Plaintiff's past relevant work. Tr. 1395-96. Plaintiff's counsel noted for Plaintiff that his questioning would entail the relevant period from when he stopped working in October 2014 through his date last insured of December 31, 2016. Tr. 1398. Plaintiff's counsel asked Plaintiff what were the main issues that he was having during that period and Plaintiff responded: “My back and my hip and my right leg.” Id. Plaintiff described pain in his back that prevented him from bending over, and pain in his hip and when moving his leg. Id. Plaintiff testified that he sits in his recliner and props up both feet to relieve some of the pressure and pain from his legs. Id. Plaintiff stated that he spent most of the day in his recliner and if he was not in the recliner he was in bed. Tr. 1399. He stated that the pain was worse in his lower back. Plaintiff stated he could not remember when he was prescribed pain medication, but thought it was in that timeframe. Id. Plaintiff testified that doctors discussed hip replacement surgery but at that time said he was too young. Tr. 1399-1400. Plaintiff stated that due to increasing problems with pain he had surgery in 2019 to repair a torn labrum, remove “another piece floating in there[,]” and to shave off calcified places around the top of the hip. Tr. 1400. Plaintiff testified that after the surgery he went through physical therapy, and after physical therapy his “pain came back.” Id. He stated that the situation with his hip is as bad now as it was in 2015-2016, and he is going to have hip replacement surgery but doctors want to wait until he is 55 years old. Tr. 1400-01. Plaintiff testified that doctors have also recommended surgery to fuse his spine but Plaintiff is “holding off as long as [he] can.” Tr. 1401. Plaintiff was unable to recall when he first started using the cane, but he indicated that it was needed to help with balance because he kept falling and he was dragging his right leg when he walked. Tr. 1401-02. Plaintiff testified that initially he needed the cane for walking longer distances, but as time progressed, he needed it more and now he needs it “just to be able to stand.” Tr. 1402. Plaintiff testified that he needs the cane for standing because he does not have proper balance, and if he puts weight on his right leg he will fall. Tr. 1403. Counsel referenced a note from Ortho Carolina in 2015 which indicated that Plaintiff continued to work. Id. Plaintiff testified that he was not working in 2015, but he stated that he owned a shaved ice business and had employees who worked for him. He stated that in early 2016 he found out the employees were stealing from him so he sold the business. Id.
Plaintiff stated that during the relevant period he could sit upright for “seven to ten minutes at the most.” Tr. 1404. He testified if he had to sit for longer periods that he “would have pain in [his] back and [his] hip, and then [his] leg would go numb.” Id. He stated that if he tried to stand up his right leg would be so weak that “it would give way.” Id. He stated he would have to get up “real easy and use [his] cane.” Id. Plaintiff testified that he could stand for five to seven minutes with his cane before getting tired. Tr. 1405. Plaintiff testified that on a typical day he would get up between 8:00 and 8:30 and go in the kitchen where his wife had prepared his breakfast. After eating breakfast he would sit in the recliner and watch TV until 1:00 or 2:00, eat his lunch, and then go lie down in the bed. Id. Plaintiff affirmed that when he was in the recliner his legs would be propped up so they would not get numb and cause him to have pain. Tr. 140506. Plaintiff testified that his 2019 hip surgery did not help the numbness issue but it helped with the pain from the labrum tear, “[b]ut after a short period of time, the pain c[a]me back.” Tr. 1406.
Counsel asked Plaintiff about his treatment in 2016 with Dr. Gata at Southern States Orthopedic. Tr. 1406. Plaintiff testified that he was going to the doctor twice a week and the doctor was very familiar with his condition. Tr. 1407. Plaintiff agreed with the doctor's statement that he could sit for a total of two hours in a day, but he did not think he could stand for four hours a day. Id. Counsel asked about his treatment with Dr. Hammerhan, who Plaintiff stated was his primary care physician and was very familiar with Plaintiff's hip and back problems. Tr. 1407-08. Plaintiff testified that he would have been unable to work because he “couldn't sit long to do anything” without needing to get up and walk around to “shake off some of the numbness and some of the pain.” Tr. 1408. Plaintiff also stated that he “can only take so many pain pills throughout the day.” Id. Plaintiff testified that during that time he had “[n]egative concentration” in terms of focusing or staying focused. Tr. 1408-09. Plaintiff attributed his lack of concentration to his ADHD for which he takes medication. Tr. 1409. Plaintiff testified that he has gotten worse as he has aged, he does not get along with people, and he is being treated for bipolar disorder. Id. Plaintiff testified that his chiropractic treatment helps keep his spine aligned and keeps him from having pain in his neck and shoulders. Tr. 1410. Plaintiff stated that he “never got benefit” from any injections that he had. Id.
Although spelled phonetically in the transcript, the medical records indicate the physician's name is Dr. Hanrahan. See Tr. 906.
The ALJ had no questions for Plaintiff. Tr. 1410.
b. VE's Testimony
The VE summarized Plaintiff's prior work experience as follows:
Semi-truck driver, [DOT] 904.383-010, medium, semiskilled, SVP of 4. We then have tow-truck driver, [DOT] 919.663-026,medium, semiskilled, SVP of 3. We then have heavy-truck driver, [DOT] 905.663-014, medium, semiskilled, SVP of 4. We then have service-truck dispatcher, [DOT] 239.367-022, light, semiskilled, SVP of 4. And finally, we have market manager, [DOT] 186.167-042, sedentary, skilled, with an SVP of 7.Tr. 1411. The ALJ asked the VE to assume a hypothetical individual of Plaintiff's age, education, and past job experience with the following limitations:
Further assume this hypothetical individual would be limited to light work, with occasional climbing of ramps and stairs, no climbing of ladders, ropes, or scaffolds, occasional balancing and stooping, no kneeling, crouching, or crawling. The claimant would need the use of a cane when ambulating and would need to avoid concentrated exposure to dangerous machinery and heights. Would be further limited to occupations requiring no more than simple, routine, repetitive tasks not performed in a fast-paced production environment, involving only simple, work-related instructions and decisions, and relatively few workplace changes. They'd be further limited to occupations requiring no more than occasional interaction with coworkers and none with the members of the general public. The hypothetical individual would be able to maintain concentration, persistence, and pace for two-hour increments.Tr. 1411-12. The VE testified that the hypothetical individual would be unable to perform any of the past relevant work of Plaintiff, but could perform the following exemplar jobs: marker, DOT 209.587-034, light, unskilled, SVP of 2, approximately 200,000 nationally; routing clerk, DOT 222.687-022, light, unskilled, SVP of 2, approximately 40,000 nationally; and laundry folder, DOT 369.687-018, light, unskilled, SVP of 2, approximately 75,000 nationally. Tr. 1412.
For his next hypothetical, the ALJ limited the first hypothetical to sedentary work, with all other limitations remaining the same. Tr. 1413. The VE testified there would be work available and identified the following positions: table worker, DOT 739.687-182, sedentary, unskilled, SVP of 2, approximately 125,000 nationally; dowel inspector, DOT 669.687-014, sedentary, unskilled, SVP of 2, approximately 115,000 nationally; and bench worker/charger II, DOT 700.687-026, sedentary, unskilled, SVP of 2, approximately 80,000 nationally. Id.
The ALJ asked the VE if her answers would change if he changed the second hypothetical to add that the individual needed the cane both for ambulating and for balance. Tr. 1413. The VE testified the individual could perform the jobs identified in response to the second hypothetical because the individual still could do sedentary work, but she would reduce the number of available jobs by 30%. Tr. 1414.
The ALJ modified the third hypothetical to “take out the part where I said they could maintain concentration, persistence, and pace for two-hour increments and add to it, due to the impairments and symptoms discussed herein, the hypothetical individual would be off task 20% of a workday and would miss three days' work per month.” Tr. 1414. The VE testified “that individual would be unable to sustain full-time gainful employment.” Id.
Plaintiff's counsel asked the VE if her testimony regarding the jobs cited would change if the third hypothetical was modified to include a sit-stand option such that the individual would need to stand for ten minutes an hour. Tr. 1415. The VE responded affirmatively noting that if the individual had to stand to do part of the sedentary job, he would be unable to do that with the other restrictions. The VE agreed with counsel that was because using a cane would have a hand occupied and the jobs generally require two hands to perform the jobs. Id.
Counsel asked if the sedentary jobs would be precluded if the individual needed to elevate his legs waist high for more than one hour a day, and the VE stated it would. Tr. 1415. Counsel asked if sedentary work would be precluded if “an individual w[as] limited to sitting in a normal sitting position for two hours a day and standing for a total of four hours a day, not continuously, but in total, with those restrictions, and then lifting no more than ten pounds no more than two hours a day[.]” Id. The VE responded affirmatively. Tr. 1416. Counsel asked how much time an individual can miss from work, and the VE responded that typically, “no more than one day per month is allowed.” Id.
The VE confirmed that her testimony was consistent with the DOT, except that “the DOT does not address such factors as off-task behavior, sit-stand options, absences, the need to elevate your legs. It does not break out climbing between stairs and ladders. And it also does not specifically address interaction in the workplace. So for those parts of my testimony, or any part that cannot be found directly int the DOT, I rely on my training, education, and experience in the field.” Tr. 1416.
In closing, Plaintiff's counsel asked the ALJ to consider the combination of issues related to Plaintiff's impairments, and that under SSR 96-9p Plaintiff would be incapable of performing sedentary work. Tr. 1416-17.
With no further questioning, the hearing adjourned. Tr. 1418.
II. Discussion
A. The ALJ's Findings
In his January 31, 2023 decision, the ALJ made the following findings of fact and conclusions of law:
1. The claimant last met the insured status requirements of the Social Security Act on December 31, 2016.
2. The claimant did not engage in substantial gainful activity during the period from his amended alleged onset date of October 1, 2014, through his date last insured of December 31, 2016 (20 CFR 404.1571 et seq.).
3. Through the date last insured, the claimant had the following severe impairments: degenerative disc disease of the lumbar spine with radiculopathy, osteoarthritis of the right hip with history of labrum tear of the right hip, degenerative joint disease of the right knee, generalized anxiety disorder, and depressive disorder (20 CFR 404.1520(c)).
4. Through the date last insured the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a). He could do occasional climbing of ramps and stairs; however, he could not climb ladders, ropes, or scaffolds. He could do occasional balancing and stooping; however, he could not kneel, crouch, or crawl. He would need the use of a cane when ambulating. He had to avoid concentrated exposure to dangerous machinery and heights. He was limited to occupations requiring no more than simple, routine, repetitive tasks not performed in a fast-paced production environment. The tasks could involve no more than simple work-related instructions and decisions and relatively few workplace changes. He was limited to occupations requiring no more than occasional interaction with coworkers and no interaction with members of the general public. He would have been able to maintain concentration, persistence, and pace for two-hour increments.
6. Through the date last insured, the claimant was unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on June 16, 1970, and was 46 years old, which is defined as a younger individual age 18-44, on the date last insured. The claimant subsequently changed age category to a younger individual age 45-49 (20 CFR 404.1563).
8. The claimant has at least a high school education (20 CFR 404.1564).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports finding that the claimant is “not disabled,” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Through the date last insured, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 CFR 404.1569 and 404.1569a).
11. The claimant was not under a disability, as defined in the Social Security Act, at any time from March 19, 2013, the amended alleged onset date, October 1, 2014, through December 31, 2016, the date last insured (20 CFR 404.1520(g)).Tr. 1363-64, 1366, 1371-72.
B. 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,” defined 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, 460 (1983) (discussing considerations and noting “need for efficiency” in considering disability claims). An examiner must consider the following: (1) whether the claimant is working; (2) whether the claimant 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 the claimant from performing specific jobs that exist in significant numbers in the national economy. See 20 C.F.R. § 404.1520. 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) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).
The Commissioner's regulations include an extensive list of impairments (“the Listings” or “Listed impairments”) the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the listed impairments, found at 20 C.F.R. Part 404, Subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. § 404.1525. If the medical evidence shows a claimant meets or equals all criteria of any of the listed impairments for at least one year, he will be found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that his impairments match several specific criteria or be “at least equal in severity and duration to [those] criteria.” 20 C.F.R. § 404.1526; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
A claimant is not disabled within the meaning of the Act if the claimant can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, § 404.1520(a), (b); Social Security Ruling (“SSR”) 82-62 (1982). The claimant bears the burden of establishing the inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the regional 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 the inability to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen, 482 U.S. at 146, n.5 (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 v. Barnhart, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to “try these cases de novo or resolve mere conflicts in the evidence.” Vitek v. Finch, 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. “Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005); see also Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (explaining that, “whatever the meaning of ‘substantial' in other contexts, the threshold for such evidentiary sufficiency is not high,” as it means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion”). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings, and that the conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed “even should the court disagree with such decision.” Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
III. Analysis
Plaintiff alleges that (1) the ALJ did not properly explain his RFC findings, (2) the ALJ failed to properly assess medical source opinion evidence, and (3) the ALJ did not properly evaluate Plaintiff's subjective symptomology. Pl.'s Br. 16-36, ECF No. 16. The Commissioner argues that the ALJ's RFC analysis allows for meaningful judicial review, the ALJ did not err in giving the opinion no weight, and Plaintiff's argument regarding the ALJ's evaluation of his subjective complaints lacks merit. Def.'s Br. 6-12, ECF No. 25.
A. The ALJ's RFC Assessment
An RFC assessment is a determination of an individual's ability to perform sustained work-related activities on a regular and continuing basis. SSR 96-8p, 1996 WL 374184 at *1. “RFC is not the least an individual can do despite his or her limitations or restrictions, but the most.” Id. (emphasis in original). At the administrative hearing level the ALJ is responsible for assessing a claimant's RFC. 20 C.F.R. § 404.1546(c). An ALJ's RFC assessment should be based on all relevant evidence and will consider the claimant's ability to meet the physical, mental, sensory, and other requirements of work. 20 C.F.R. § 404.1545(a)(3) and (4). Social Security Ruling 96-8p requires that the RFC assessment “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).” SSR 96-8p, 1996 WL 374184 at *7. The ALJ must discuss the claimant's ability to “perform sustained work activities in an ordinary work setting” on a regular work schedule. Id. Further, “[t]he RFC assessment must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence.” Id.
The ALJ determined that through December 31, 2016, Plaintiff had the RFC to perform sedentary work with some additional postural, environmental, and mental limitations. Tr. 1366. Plaintiff argues that the ALJ did not explain how his RFC accounted for the opinion evidence from Southern States Rehabilitation, the medical evidence regarding Plaintiff's inability to sit for long periods, and the medical evidence regarding balance and Plaintiff's cane use. Pl.'s Br. 1827.
1. ALJ's Alleged Failure to Account for Opinion Evidence in the RFC Assessment
The records from Southern States Rehabilitation included in the medical evidence of record contain a one-page form, South Carolina Department of Social Services (“DSS”) Medical Release/Physician's Statement (“Physician's Statement”), used when persons are applying for benefits from DSS. Tr. 454. The form is undated and unsigned; however, Plaintiff attributes to it the date of the treatment record immediately following the form, February 29, 2016. Tr. 455. The undersigned notes that the date just as easily could have been attributed to the treatment record immediately preceding the form, November 3, 2016. Tr. 453. In his Decision, the ALJ indicated the opinion was from May 2015. Tr. 1370.
The Physician's Statement indicated that Plaintiff's disability was permanent; that with restrictions he was able to work part-time at 10-14 hours/week; and during a workday the maximum number of hours he could sit or walk was two hours each, and the maximum number of hours he could stand was four. Tr. 454. The Physician's Statement also indicated that Plaintiff could climb stairs/ladders, kneel/squat, bend/stoop, push/pull, and lift/carry a maximum of two hours each per workday and that he could keyboard a maximum of four hours. Id. It also noted that he could not lift/carry objects more than ten pounds for more than two hours per day. Id.
The ALJ acknowledged the sit, stand, walk, and lift restrictions in the Physician's Statement, and he also noted a May 18, 2019 treatment record that found due to back, neck, and right hip pain Plaintiff had moderate limitations. Tr. 1370. The ALJ found “[t]hese opinions are supported within the physical therapy records as the claimant was attending regularly scheduled/weekly physical therapy appointments, during this relevant period from mid-2014 through early 2016, including some visits as late as November 2016, for his musculoskeletal pain, and the physical therapist examined, tested, and treated the claimant frequently during his participation in physical therapy (Exhibit 7F, p. 11, 12-66).” Id. Immediately following this sentence, there is an incomplete sentence: “*These opinions are consistent with the record, which shows ***.” Id. It appears the ALJ did not complete his analysis of the opinions from Southern States Rehabilitation.
Plaintiff argues that despite finding the opinion was supported by the treatment records, the ALJ failed to explain why he did not include the restrictions contained in the Physician's Statement in his RFC assessment. Pl.'s Br. 19. The Commissioner contends that because physical therapists are not acceptable medical sources qualified to offer an opinion about a claimant's ability to work, the “ALJ could find the physical therapist's opinion to be supported but decide that Plaintiff was capable of a limited range of sedentary work.” Def.'s Br. 10.
The Commissioner is correct that physical therapists are not considered acceptable medical sources. SSR 06-03p, 2006 WL 2329939, at *1 (Aug. 9, 2006). However, under the regulations for evaluating opinion evidence, the ALJ is charged with explaining “the weight given to opinions from these sources or otherwise ensur[ing] that the discussion of the evidence in the determination or decision allows a claimant or subsequent reviewer to follow the adjudicator's reasoning, when such opinions may have an effect on the outcome of the case.” 20 C.F.R. § 404.1527(f)(2). Although the ALJ found the opinions were supported by the physical therapy records, it appears the ALJ did not complete his evaluation. He did not weigh the opinions, nor did he explain how he considered the opinions in assessing Plaintiff's RFC- especially considering the opined limitations in Plaintiff's ability to work full-time at the sedentary level. The ALJ does not discuss why he disregarded evidence from the Physician's Statement that appears to support more extensive limitations. The ALJ's incomplete narrative discussion of the Physician's Statement does not allow for meaningful review. The ALJ failed to build an accurate and logical bridge from the evidence to conclusions and should provide a more thorough explanation regarding his consideration of the Physician's Statement. Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)).
2. ALJ's Alleged Failure to Consider Medical Evidence
Plaintiff contends the ALJ did not consider medical records that the Appeals Council directed he should consider on remand. Pl.'s Br. 19-20. Plaintiff also argues that beyond the records cited by the Appeals Council, other medical records and opinions-including chiropractic records and imaging studies-show that Plaintiff's “conditions caused difficulties sitting, standing, walking, lifting, bending, twisting, kneeling, and squatting (Tr. 261, 454, 533, 904).” Id. at 20-21. Plaintiff argues the “ALJ failed to engage in the proper function-by-function analysis that would adequately explain the RFC findings.” Id. at 22. The Commissioner argues, citing to Fourth Circuit case law, that remand is not required when an ALJ fails to perform an explicit function-by-function analysis if the ALJ's narrative discussion contains sufficient information to allow for meaningful review. Id. at 7.
In his Decision the ALJ discussed Plaintiff's self reports regarding his impairments, pain, limitations, and his functionality as detailed in his 2015-16 disability reports, his November 2015 Activities of Daily Living report, his March 2016 Function Report, and 2015 medical treatment records-including the records cited specifically by the Appeals Council. Tr. 1366-67. The ALJ provided a narrative discussion of why he found that the medical record does not support “the degree or extent of limitation to have precluded the claimant from all available forms of work.” Tr. 1368-69. The ALJ also discussed the opinion evidence, including the October 2017 opinion of Dr. Hanrahan. Tr. 1370. The ALJ concluded, “based on the entire record, including the testimony of the claimant,” that the evidence failed to support Plaintiff's disability claims. The ALJ noted that “[d]espite the evidence demonstrating that the claimant has underlying severe impairments, the record also establishes the claimant retains the capacity to function adequately to perform many basic activities associated with work.” Id. The ALJ stated that his RFC assessment was supported by the objective medical evidence, and treatment notes did not sustain Plaintiff's allegations of disabling limitations. Id.
The undersigned finds that the ALJ appropriately considered the medical evidence cited by Plaintiff and explained his reasoning for his RFC assessment. However, because of his failure to properly consider the opinion evidence, he will need to reconsider his RFC assessment.
As indicated above, the ALJ needs to revisit his consideration of the opinion by the physical therapy specialists. In a later section of this Report the undersigned also recommends the ALJ reconsider Dr. Hanrahan's opinion.
3. ALJ's Consideration of Plaintiff's Use of a Cane
Plaintiff argues that the ALJ failed to make the required evaluation under SSR 96-9p regarding the circumstances for which he needs to use a cane and failed to comply with the remand order. Pl.'s Br. 25-27. The Commissioner argues that the ALJ complied with SSR 96-9p because he “specified the need to use a cane to ambulate in the hypothetical question, and the VE identified unskilled sedentary occupations in response to the hypothetical question (Tr. 1372, 1413-1414).” Def.'s Br. 10. The Commissioner also asserts that because Plaintiff did not file Written Exceptions to the ALJ's January 2023 Decision (the Decision at issue in this case), “he should not be heard to complain about whether the ALJ sufficiently complied with the Appeals Council's order.” Def.'s Br. 11, n. 3.
SSR 96-9p explains the policies regarding the capability of a claimant to do other work when the claimant has an RFC for less than the full range of sedentary work. Regarding exertional limitations, the Ruling provides:
To find that a hand-held assistive device is medically required, there must be medical documentation establishing the need for a hand-held assistive device to aid in walking or standing, and describing the circumstances for which it is needed (i.e., whether all the time, periodically, or only in certain situations; distance and terrain; and any other relevant information). The adjudicator must always consider the particular facts of a case. For example, if a medically required hand-held assistive device is needed only for prolonged ambulation, walking on uneven terrain, or ascending or descending slopes, the unskilled sedentary occupational base will not ordinarily be significantly eroded.
Since most unskilled sedentary work requires only occasional lifting and carrying of light objects such as ledgers and files and a maximum lifting capacity for only 10 pounds, an individual who uses a medically required hand-held assistive device in one hand may still have the ability to perform the minimal lifting and carrying requirements of many sedentary unskilled occupations with the other hand.7 For example, an individual who must use a hand-held assistive device to aid in walking or standing because of an impairment that affects one lower extremity (e.g., an unstable knee), or to reduce pain when walking, who is limited to sedentary work because of the impairment affecting the lower extremity, and who has no other functional limitations or restrictions may still have the ability to make an adjustment to sedentary work that exists in significant numbers. On the other hand, the occupational base for an individual who must use such a device
for balance because of significant involvement of both lower extremities (e.g., because of a neurological impairment) may be significantly eroded.
In these situations, too, it may be especially useful to consult a vocational resource in order to make a judgment regarding the individual's ability to make an adjustment to other work.
n.7: Bilateral manual dexterity is needed when sitting but is not generally necessary when performing the standing and walking requirements of sedentary work.SSR 96-9p, 1996 WL 374185, at *7.
As noted by the ALJ in his Decision, he was directed by the Appeals Council to “provide further articulation concerning the claimant's use of a cane for balance when walking and standing, and provide appropriate rationale with specific references to evidence of record in support of the assessed limitations (20 CFR 404.1545 and [SSR] 85-16 and 96-8p).” Tr. 1360. In his RFC assessment the ALJ limited Plaintiff to sedentary work and indicated he would need the use of a cane when ambulating. Tr. 1366. The only reference in the Decision regarding Plaintiff's use of a cane was included in the ALJ's discussion of Plaintiff's statements about his impairments and inability to do full-time work. The ALJ noted Plaintiff's statement that “his hip was stiff, locking, catching, weak, and would give out (Exhibit 3F, p. 6; 5F, p. 3). [Plaintiff] wrote that he needed his cane to walk distances greater than 25 feet and for general balancing (Exhibit 4E; 7E; 9E; 3F, p. 6).” Tr. 1367.
As contemplated by SSR 96-9p, the ALJ consulted a VE to determine the effects of cane use on the occupational base. At the October 2022 administrative hearing the ALJ's first two hypotheticals to the VE included the need to use a cane when ambulating, and the VE provided exemplar jobs the individual could perform. Tr. 1411-13. In his third hypothetical the ALJ included the use of a cane for ambulating and for balance when performing sedentary work. Tr. 1413. The VE testified that would reduce the number of available jobs by approximately 30 percent. Tr. 1414. Although he consulted a VE, the ALJ did not, as instructed by the Appeals Council, provide any discussion in his Decision of his consideration of Plaintiff's need to use the cane for balance when considering Plaintiff's RFC. However, the undersigned finds this to be harmless error. The court generally considers an error to be harmless where the ALJ conducted the proper analysis, cited substantial evidence to support his finding, and “would have reached the same conclusion notwithstanding his initial error[.]” Mickles v. Shalala, 29 F.3d 918, 921 (4th Cir. 1994). As discussed above, the ALJ cited substantial evidence to support a finding that Plaintiff was limited to sedentary work. The VE testified that even if Plaintiff needed a cane for ambulating and for balance there would still be a significant number of jobs available; therefore, even if the ALJ erred by not including use of a cane for balance in his RFC assessment, the error would be harmless. The ALJ's failure to comply with the Appeals Council's instructions alone is not a sufficient reason for remand. Gassaway v. Astrue, No. CIVA 8:07-4083-HFF-BHH, 2009 WL 462704, at *11 (D.S.C. Feb. 23, 2009) (“This Court is bound to review the ALJ's decision in light of federal law and the substantial evidence standard of review. The Court is not motivated to remand the decision based on noncompliance with the Appeals Council's instructions, when the Council itself declined to do so.”).
However, should the ALJ determine, after re-evaluation of the opinion evidence, that other postural limitations are appropriate, the ALJ may need to revisit the impact of Plaintiff's cane use on his RFC.
B. The ALJ's Consideration of Medical Opinion Evidence
Plaintiff argues the ALJ erred by giving no weight to the opinion of Dr. Hanrahan. Pl.'s Br. 30-32. The Commissioner contends the ALJ did not err, and he “explained in detail why he gave Dr. Hanrahan's conclusory statement no weight[.]” Def.'s Br. 11.
1. Standard for Weighing the Opinions of Treating Physicians
Generally, the opinions of treating physicians are entitled to greater weight than other evidence and the regulations have enumerated particular factors for ALJs to consider when evaluating those opinions. See 20 C.F.R. § 404.1527(c). If a treating source's medical opinion is “well-supported and ‘not inconsistent' with the other substantial evidence in the case record, it must be given controlling weight[.]” SSR 96-2p; see also 20 C.F.R. § 404.1527(c)(2) (providing treating source's opinion will be given controlling weight if well-supported by medically acceptable clinical and laboratory diagnostic techniques and not inconsistent with other substantial evidence in the record). As explained by the Fourth Circuit Court of Appeals,
For claims filed on or after March 27, 2017, the regulations changed as to how adjudicators would consider and articulate medical opinions. See 20 C.F.R. § 404.1520c. Because Plaintiff's claim was filed prior to March 27, 2017, 20 C.F.R. § 404.1527 is applicable.
SSR 96-2p was rescinded effective March 27, 2017. See 2017 WL 3928305. However, because this claim was filed prior to that date, SSR 96-2p is applicable.
Section 404.1527(c)(2) sets out two rules an ALJ must follow when evaluating a medical opinion from a treating physician. First, it establishes the “treating physician rule,” under which the medical opinion of a treating physician is entitled to “controlling weight” if it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and not inconsistent with the other substantial evidence in [the]case record.” 20 C.F.R. 404.1527(c)(2); see also, e.g., Arakas v. Comm'r of SSA, 983 F.3d 83, 106-07 (4th Cir. 2020) (citing Section 404.1527(c)(2) and applying the treating physician rule); Brown v. Comm'r of SSA, 873 F.3d 251, 255-56 (4th Cir. 2017) (same). Second, if a medical opinion is not entitled to controlling weight under the treating physician rule, an ALJ must consider each of the following factors to determine the weight the opinion should be afforded: (1) the “[l]ength of the treatment relationship and the frequency of examination”; (2) the “[n]ature and extent of the treatment relationship”; (3) “[s]upportability,” i.e., the extent to which the treating physician “presents relevant evidence to support [the] medical opinion”; (4) “[c]onsistency,” i.e., the extent to which the opinion is consistent with the evidence in the record; (5) the extent to which the treating physician is a specialist opining as to “issues related to his or her area of specialty”; and (6) any other factors raised by the parties “which tend to support or contradict the medical opinion.” 20 C.F.R. § 404.1527(c)(2)(i)-(6).Dowling v. Comm'r of Soc. Sec. Admin., 986 F.3d 377, 384-85 (4th Cir. 2021). In Dowling the Court of Appeals noted that, although “an ALJ is not required to set forth a detailed factor-by- factor analysis in order to discount a medical opinion from a treating physician, it must nonetheless be apparent from the ALJ's decision that he meaningfully considered each of the factors before deciding how much weight to give the opinion.” Dowling, 986 F.3d at 385 (emphasis in original). The rationale for the general rule affording opinions of treating physicians greater weight is “because the treating physician has necessarily examined the applicant and has a treatment relationship with the applicant.” Johnson, 434 F.3d at 654 (quoting Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001)). The ALJ has the discretion to give less weight to the opinion of a treating physician when there is “persuasive contrary evidence.” Mastro, 270 F.3d at 176. SSR 96-2p requires that an unfavorable decision contain specific reasons for the weight given to the treating source's medical opinion, supported by evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight. In undertaking review of the ALJ's treatment of a claimant's treating sources, the court focuses its review on whether the ALJ's decision is supported by substantial evidence.
Here, the ALJ stated that he “considered opinion evidence in accordance with the requirements of 20 CFR 404.1527.” Tr. 1366. The ALJ discussed Plaintiff's statements regarding his impairments, and he outlined the medical evidence of record regarding Plaintiff's complaints and treatment for his impairments. Tr. 1366-67. The ALJ evaluated the opinion evidence of a State agency non-treating consultant, physical therapists, and Dr. Hanrahan related to Plaintiff's physical impairments. Tr. 1370. Plaintiff takes issue with the ALJ's consideration of the opinion of his treating physician, Dr. Hanrahan. Pl.'s Br. 27-32.
The ALJ also considered the opinions of consultants related to Plaintiff's mental impairments, but because Plaintiff makes no allegations of error regarding his mental status those opinions are not discussed.
2. Dr. Hanrahan's October 2017 Opinions
Dr. Hanrahan saw Plaintiff on October 16, 2017 for follow-up. Tr. 859. Dr. Hanrahan noted:
The patient seems to be doing poorly. He notes that his legs have been going numb when he drives for any period of time this is probably due to his degenerative disc disease. He thinks his type 2 diabetes has been doing better will have to see today. Hypertension controlled. Reflux control. Arthritis controlled. Erectile dysfunction about the same. Hyperlipidemia controlled. Insomnia control. The patient is otherwise about as well as can be expected.Id. Dr. Hanrahan's diagnoses included: Type 2 diabetes mellitus without complication, without long-term current use of insulin; degenerative disc disease, lumbar; essential hypertension; gastroesophageal reflux disease without esophagitis; arthritis; combined arterial insufficiency and corpora-venous occlusive erectile dysfunction; mixed hyperlipidemia; Class 2 obesity due to excess calories without serious comorbidity with body mass index (BMI) of 39.0 to 39.9 in adult; and primary insomnia. Tr. 863.
Dr. Hanrahan provided a Physical Medical Source Statement on October 17, 2017. Tr. 902-06. He listed his diagnoses as degenerative disc disease, right hip pain, chronic back pain, arthritis, and bilateral low back pain with sciatica. Tr. 902. His prognosis was: “Patient is at his best capacity. No more improvement.” Id. Dr. Hanrahan indicated Plaintiff's symptoms were “leg numbness after prolonged sitting, right knee pain when extended, arthritis on hip, bone spurs cause pain, labrum tear [right] side, back pain.” Id. In describing the severity of Plaintiff's pain, Dr. Hanrahan noted: “Patient's pain is unbearable at times. He is not able to sit prolonged period of times, can't stand, reach or pull due to pain.” Id. He indicated Plaintiff's treatment included spinal therapy and medications including Naproxen and Aleve which provided “no relief.” Tr. 903. In response to questions related to Plaintiff's functional limitations if placed in a competitive work situation, Dr. Hanrahan indicated that Plaintiff could not walk a city block without rest, he could not continuously sit or stand for any period of time, and he could do no prolonged sitting or standing. Tr. 904. He indicated that Plaintiff would need to walk around every five minutes for three minutes, and he would need a job that permitted shifting positions at will from sitting, standing, or walking. Id. He indicated Plaintiff would need to take an unscheduled break every five minutes to rest for five minutes before returning to work. Tr. 90405. Dr. Hanrahan did not find that Plaintiff would need to elevate his legs with prolonged sitting, but he indicated that Plaintiff must use a cane or other assistive device while engaging in occasional standing or walking. Tr. 905. He opined that Plaintiff could not lift even less than 10 pounds and would have significant limitations in doing repetitive reaching, handling, or fingering. Id. Dr. Hanrahan indicated Plaintiff would be unable to use his hands, fingers, and arms for any repetitive activities such as grasping/turning/twisting objects, fine manipulation, or reaching. Id. He indicated Plaintiff could not bend or twist. Id. Dr. Hanrahan indicated Plaintiff's impairments would not produce good days and bad days, but on average his impairments or treatment would cause him to be absent from work more than three times a month. Tr. 906. Dr. Hanrahan indicated that the earliest date that the symptoms and limitations applied was 2007. Id.
3. The ALJ's Consideration of Dr. Hanrahan's Opinions
The ALJ considered and gave “no weight” to Dr. Hanrahan's Medical Source Statement, noting that it was completed “well past the date last insured.” Tr. 1370. The ALJ found that Dr. Hanrahan's statement was “inconsistent with his treatment note that same day, stating, ‘arthritis controlled' other than his legs going numb after he drives, and he was otherwise as well as could be expected (Exhibit 10F/120).” Id. The ALJ stated that Dr. Hanrahan gave “absolutely no reason for why [Plaintiff] is so limited” and his “medical records do not support his findings with normal exams.” Id. The ALJ posited that it did “not even appear someone with medical training completed the forms” and Dr. Hanrahan's findings were inconsistent with the “MRI scans, x-rays and physical examinations by orthopedics and neurosurgery.” Id.
4. Discussion
Plaintiff notes that the Appeals Council specifically directed the ALJ to consider Dr. Hanrahan's opinion regarding Plaintiff's need to use a cane for walking and standing but the ALJ did not discuss or assign weight to that portion of the opinion. Pl.'s Br. 30. Plaintiff also takes issue with the ALJ's findings related to the October treatment note. Plaintiff asserts the note indicated that he was “doing poorly, a conclusion that supports the opinion.” Id. at 31. The Commissioner argues that as a checkbox-type report, Dr. Hanrahan's opinion lacked supporting explanation, had limited probative value, and “accordingly, the ALJ did not err in giving the opinion no weight.” Def.'s Br. 11.
The Fourth Circuit has clarified how ALJs are to consider physician opinions under the treating physician rule. See Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 106 (4th Cir. 2020) (determining that the ALJ erred failing to adhere to the “treating physician rule”); Dowling, 986 F.3d at 385-86 (finding that substantial evidence did not support negligible weight given to treating physician's opinion without considering regulatory factors); Triplett v. Saul, 860 Fed.Appx. 855, 857 (4th Cir. 2021) (finding the ALJ erred by failing to consider each of the factors listed in 20 C.F.R. § 404.1527(c) before affording only negligible weight to the plaintiff's treating physician's medical opinion); and Shelley C. v. Comm'r of Soc. Sec. Admin., 61 F.4th 341 (4th Cir. 2023) (determining that the ALJ did not properly consider length, frequency, and nature of claimant's relationship with her treating psychiatrist in giving little weight to psychiatrist's opinion, and the ALJ inappropriately afforded more weight to non-examining physicians' opinions than to her treating psychiatrist's opinion).
As noted above, it must be apparent from the ALJ's decision that he “meaningfully considered each of the factors before deciding how much weight to give the opinion.” Dowling, 986 F.3d at 385 (emphasis in original). Here the ALJ addressed the supportability and consistency factors in a cursory and incomplete fashion, but he did not acknowledge any of the other factors to be considered. Tr. 1370. “[I]t is an elemental principle of administrative law that agency determinations must ‘be made in accordance with certain procedures which facilitate judicial review.' One such procedure is Section 404.1527(c)'s requirement that ALJs consider each of the enumerated factors before assigning less than controlling weight to a medical opinion from a treating physician.” Dowling, 986 F.3d at 386 (quoting Patterson v. Comm'r of SSA, 846 F.3d 656, 662 (4th Cir. 2017)). Accordingly, the undersigned recommends remand so that the ALJ may provide information demonstrating that he considered all of the 20 C.F.R. § 404.1527(c) factors in evaluating Dr. Hanrahan's opinion.
C. The ALJ's Evaluation of Plaintiff's Subjective Symptoms
Plaintiff argues the ALJ did not properly evaluate his subjective symptomology. Pl.'s Br. 33. Plaintiff contends ALJ “failed to evaluate key pieces of [his] testimony that were supported by the record . . . about his balance problems and his troubles with falling.” Id. Plaintiff also argues that the ALJ failed to properly consider physicians' statements that confirmed his pain was consistent with the objective findings. Id. at 34. The Commissioner contends that Plaintiff's argument lacks merit as it “essentially rehashes Plaintiff's argument concerning the ALJ's RFC assessment[.]” Def.'s Br. 11-12.
Because this issue is related to the ALJ's consideration of Plaintiff's RFC, and because the undersigned recommends remand regarding the opinion evidence (which could impact the RFC assessment on remand), the Commissioner should also consider this remaining allegation of error raised by Plaintiff.
IV. Conclusion and Recommendation
The court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported as a matter of fact and law. Based on the foregoing, the undersigned cannot determine that the Commissioner's finding was supported by substantial evidence or reached through application of a correct legal standard.
Plaintiff has requested that the court reverse the Commissioner's decision with instruction to order benefits, noting that he “began his quest for disability over eight years ago, in 2015” and that further remand for “more administrative development is dubious at this point, as the period under review ended in 2016.” Pl.'s Br. 37.
“While the Court certainly has the authority under certain circumstances to reverse and award benefits, the preferred course is to reverse and allow the Commissioner to address the matter on remand.” Saxon v. Colvin, No. CIV.A. 6:10-1144-RMG, 2013 WL 4051037, at *4 (D.S.C. Aug. 9, 2013). The undersigned recommends that the ALJ's decision be reversed and remanded for further, expedited action by the Commissioner. The ALJ should consider all evidence, including all opinion evidence, paying heed to the rule recently reiterated in Dowling that specific consideration must be given to all of the factors of 20 C.F.R. § 404.1527(c)(2). See Dowling, 986 F.3d at 385. If the district judge accepts this recommendation to remand, the undersigned further recommends that the court direct the agency to issue a decision by the Administrative Law Judge within 90 days and a final agency decision within 120 days. Additionally, should a further appeal to the district court be necessary, Plaintiff should designate this case as related on the Civil Cover Sheet.
Alternatively, should the court find that a remand would serve no useful purpose, then it may reverse the case with instructions to award benefits. Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974) (finding it “appropriate to reverse without remanding 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.”).
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”