Opinion
8:22-cv-00101-DCN-JDA
01-17-2023
Terence Maurice Salters, Plaintiff, v. Commissioner of Social Security, 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.
PROCEDURAL HISTORY
In July 2020, Plaintiff filed an application for DIB, alleging an onset disability date of April 1,2014. [R. 230-33; see R. 28 (providing application date).] The claim was denied initially and on reconsideration by the Social Security Administration (“the Administration”). [R. 119-31, 133-51.] Plaintiff requested a hearing before an administrative law judge (“ALJ”), and on July 7, 2021, ALJ Flora Lester Vinson conducted a de novo hearing on Plaintiff's claims. [R. 46-86.] The ALJ issued a decision on August 25, 2021, finding Plaintiff not disabled under the Social Security Act (“the Act”). [R. 25-42.] At Step 1, the ALJ found Plaintiff met the Act's insured-status requirements on December 31, 2015, and had not engaged in substantial gainful activity from the alleged onset date of April 1, 2014, through his last date of insured of December 31, 2015. [R. 31, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had the following severe impairments: post-traumatic stress disorder (“PTSD”), anxiety, knee disorder, and degenerative disc disease of the lumbar and cervical spine. [R. 31, Finding 3.] The ALJ also found Plaintiff had the non-severe impairments of gastroesophageal reflux disease, a hiatal hernia, esophagitis (grade B), tinnitus, headaches, plantar fibroma, idiopathic peripheral neuropathy, hyperlipidemia, osteopenia, mild cardiomegaly, and eczema. [R. 31.] 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. 31, 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 Plaintiff retained the following residual functional capacity (“RFC”):
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) with additional limitations. The claimant could occasionally climb ramps and stairs, but never climb ladders, ropes, or scaffolds. He could occasionally balance and stoop. He could never kneel, crouch, or crawl. His ability to understand, remember and carry out instructions allowed for the performance of uncomplicated, “unskilled tasks” [defined as tasks that can be learned in one month or less by just an on the job demonstration, and that require applying commonsense understanding to carry out one and two step oral or written instructions]. His use of judgment allowed for making “uninvolved work-related decisions” [defined as decisions involving no more than a few concrete variables in or from standardized situations]. He was able to have occasional interaction with coworkers, but no close, team-type or tandem interaction with them. He was able to have no more than incidental contact with the general public. He was able to
tolerate “few changes” in a routine work setting [defined as no more than a few deviations from the core job duties]. He had to use a cane in the right, dominant hand when walking over uneven terrain or walking more than fifty feet.[R. 33-34, Finding 5.] At Step 4, the ALJ found that Plaintiff was unable to perform any past relevant work. [R. 40, Finding 6.] Upon considering Plaintiff's age, education, work experience, RFC, and the testimony of a 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. 40-41, Finding 10.] Thus, the ALJ found that Plaintiff had not been under a disability as defined by the Act from April 1, 2014, the alleged onset date, through December 31, 2015, the date last insured. [R. 42, Finding 11.]
Plaintiff requested Appeals Council review of the ALJ's decision but the Council declined review. [R. 1-4.] Plaintiff filed this action for judicial review on January 11, 2022. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff asserts the ALJ's decision is not supported by substantial evidence and should be remanded for an award of benefits. [Doc. 10.] Plaintiff argues that the ALJ committed reversible error by failing to conclude he was disabled in light of medical records and disability decisions from the Department of Veterans Affairs (“VA”). [Id. at 3-6.]
The Commissioner contends, however, that the ALJ's decision is supported by substantial evidence and should be affirmed. [Doc. 11.] The Commissioner argues that the ALJ properly followed the regulatory framework, and Plaintiff is merely asking the Court to reweigh the evidence in his case. [Id. at 10-16.]
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) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) (citing Woolridge v. Celebrezze, 214 F.Supp. 686, 687 (S.D. W.Va. 1963)) (“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.'” Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971) (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). Sargent v. Sullivan, 941 F.2d 1207 (4th Cir. 1991) (unpublished table decision). 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 residual functional capacity); 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) (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985); 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 (citing Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991)).
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) (citing 42 U.S.C. § 405(g); Mitchell v. Schweiker, 699 F.2d 185, 188 (4th Cir. 1983); Sims v. Harris, 631 F.2d 26, 28 (4th Cir. 1980); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)), 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).
Though the court in Wilkins indicated in a parenthetical that the four-part test set forth in Borders had been superseded by an amendment to 42 U.S.C. § 405(g), courts in the Fourth Circuit have continued to cite the requirements outlined in Borders when evaluating a claim for remand based on new evidence. See, e.g., Brooks v. Astrue, No. 6:10-cv-152, 2010 WL 5478648, at *8 (D.S.C. Nov. 23, 2010); Ashton v. Astrue, No. TMD 09-1107, 2010 WL 3199345, at *3 (D. Md. Aug. 12, 2010); Washington v. Comm'r of Soc. Sec., No. 2:08-cv-93, 2009 WL 86737, at *5 (E.D. Va. Jan. 13, 2009); Brock v. Sec'y of Health & Human Servs., 807 F.Supp. 1248, 1250 n.3 (S.D. W.Va. 1992). Further, the Supreme Court of the United States has not suggested Borders' construction of § 405(g) is incorrect. See Sullivan v. Finkelstein, 496 U.S. 617, 626 n.6 (1990). Accordingly, the Court will apply the more stringent Borders inquiry.
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 his 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. § 404.1521. 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 residual functional capacity with the physical and mental demands of the kind of work he has done in the past to determine whether the claimant has the residual functional capacity to do his past work. 20 C.F.R. § 404.1560(b).
Residual functional capacity is “the most [a claimant] can still do despite [her] limitations.” 20 C.F.R. § 404.1545(a).
E. Other Work
As previously stated, once the ALJ finds that a claimant cannot return to his 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 Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992); 20 C.F.R. § 404.1520(f)-(g). 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); see also 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 vocational expert 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. § 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, as Plaintiff's is, 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. 49,462-03, 49,464 (Oct. 25, 2017); see also 20 C.F.R. § 404.1529(c)(1)-(c)(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
Plaintiff argues generally that the ALJ erred in finding him not disabled. [Doc. 10 at 3-4.] In particular, he relies upon his treatment records with the VA and VA disability decisions. [Id.] Although Plaintiff admits the VA disability ratings are not binding on the Administration, he asserts, “The impairments cited in the VA disability decision are not contradicted by other medical evidence and, therefore, should be viewed as the best indicators of Plaintiff's disability.” [Id. at 3.] According to Plaintiff, the ALJ's decision referenced “Plaintiff's diverse impairments and the accompanying effects on his functionality but inexplicably chose to summarily conclude that the totality of these impairments do not support a finding of disability.” [Id. at 4.] Plaintiff argues the ALJ's finding contradicts the record and is the result of cherry-picking. [Id.]
ALJ's Decision
As noted above, in her decision, the ALJ found Plaintiff had severe impairments of PTSD, anxiety, knee disorder, and degenerative disc disease of the lumbar and cervical spine. [R. 31.] Additionally, Plaintiff had non-severe impairments, including gastroesophageal reflux disease, a hiatal hernia, esophagitis (grade B), tinnitus, headaches, plantar fibroma, idiopathic peripheral neuropathy, hyperlipidemia, osteopenia, mild cardiomegaly, and eczema. [Id.]
The ALJ then determined Plaintiff's RFC, that is, the impact his impairments had on his ability to function in the workplace. [R. 33-40.] The ALJ began her RFC analysis by summarizing Plaintiff's hearing testimony as follows:
The claimant alleges disability based on a number of physical and mental impairments and related limitations. Per hearing testimony, his core disability allegation is that chronic back and knee dysfunction resulted in severe pain and mobility hindrance during the adjudicatory period (alleged onset date of April 1, 2014, through the date last insured on December 31, 2015). He testified that during this period, he used a cane for ambulation, a knee brace, and a back brace. In terms of pain control, he reported use of pain medications (Vicodin and morphine), use of neurologic medication (gabapentin), and use of a Tens unit. He also indicated receipt of injection therapy. He testified that, during the relevant period, he was significantly limited in his ability to stand and walk, and also experienced problems performing postural maneuvers. He reported that due to his impairments, he spend the majority of his time resting in a seated position. He also alleged hand dysfunction during the relevant period, with symptoms such as stiffness and pain, and indicated that he had problems grasping objects. As for the claimant's mental functioning, he testified that he is a combat veteran and experienced traumatic events during deployment. He described PTSD symptoms such as
nightmares, flashbacks, and sleep disturbances. He explained that he slept during the day and was chronically fatigued. He reported additional mental work-related limitations, including diminished concentration, problems with memory, panic attacks, and general difficulty functioning in public. He reported treatment with therapy and use of psychotropic medications. The claimant reported medication side effects, including sleepiness and general mental fatigue. The claimant testified that he has a 100% disability rating from the Department of Veteran Affairs (VA) for his physical and mental impairments (Hearing Testimony, Exhibit B1E).[R. 34.]
The ALJ then summarized Plaintiff's medical history. The ALJ began by considering the medical evidence related to Plaintiff's spine issues. The decision references a lumbar spine MRI in May 2014 that showed “mild” disc protrusion at ¶ 5/S1 and a cervical spine MRI from the same time showing stenosis involving multiple levels, but no radiographic evidence of cervical spine compression. [R. 35.] An x-ray in May 2014 showed degenerative spurring at ¶ 5/C6. [Id.]
The ALJ next summarized the findings by consultative examiner Roland Knight, M.D., who examined Plaintiff in January 2015. [Id.] The ALJ noted Dr. Knight found “a mildly restricted range of motion in cervical and lumbar spine” and “tenderness in the cervical spine” but “a full range of motion in the shoulders, elbows, and writs [sic].” [Id.] Other examination findings by Dr. Knight included normal sensation in the hands, negative straight leg testing, normal gait, normal toe and heel walking, good muscle tone, and normal coordination and reflexes in the upper and lower extremities. [Id.] Dr. Knight's report noted that Plaintiff presented with a cane but it was not required. [Id.] The ALJ recognized Dr. Knight's findings “that the claimant had chronic pain secondary to cervical spine degenerative disc disease, but there was no evidence of neuropathy” and that Plaintiff had “chronic lower back pain secondary to a bulging disc.” [Id.] However, the ALJ further highlighted Dr. Knight's notation “that the reported pain ‘seems disproportionate to the objective findings,' per the neurological signs.” [Id.]
The ALJ recited evidence from orthopedic assessments in February and March 2015, where Plaintiff reported back pain, radiating into his legs and feet, and numbness in his legs. [Id.] The ALJ noted some normal examination findings but also pointed out that Plaintiff displayed signs of an antalgic gait and sciatic nerve abnormalities. [Id.] Plaintiff was thus prescribed a cane for ambulation, a brace, and a Tens unit. [Id.] Other treatment records cited by the ALJ showed treatment with pain medication, including morphine, muscle relaxers, and gabapentin, for Plaintiff's back pain and neuropathic symptoms in his lower extremities. [R. 36.] The ALJ noted, “[t]he record does not include any reference to recommended surgical intervention with respect to claimant's back.” [Id.]
The ALJ next considered Plaintiff's knee pain, noting he was prescribed medication for his pain but there was no imaging in the record indicating significant dysfunction of the knees. [Id.] According to the ALJ, “treatment notes dated September 2014 state that the claimant's complaints of knee pain are generally out of proportion to the findings on MRI (Exhibit B4F/110).” [Id.]
The ALJ then offered the following assessment of Plaintiff's complaints of pain and mobility issues:
While the record confirms the presence of physical impairments, the claimant's allegations of chronic, debilitating pain and mobility hindrance are generally out of proportion to the objective medical evidence documented during physical examinations in or around the adjudicatory period. For example, providers observed the claimant as being comfortable and in no apparent distress (See, e.g. Exhibits
B3F/5, 11, B4F/111, 139). Additionally, the claimant repeatedly exhibited normal strength and muscle mass in his upper and lower extremities with normal neurological functioning, including intact sensation, reflexes, and coordination. The record does not include evidence of muscle atrophy (See, e.g. Exhibits B1F, B2F/5-7, 22, B3F/5, B4F/139). Further, per the consultative examination report above, the claimant maintained a normal range of motion in all joints (including his knees) without signs of joint deformity or instability (Exhibit B1F). Notably, on multiple occasions, the claimant exhibited a normal unassisted gait. As stated previously, the consultative examiner found that the claimant did not need a cane for ambulation (Exhibits B1F, B3F/5, 11, B4F/40, 119). As for the claimant's reports of significant manipulative limitations, he repeatedly exhibited normal strength in his upper extremities. He also exhibited intact grip strength and intact pinch strength without findings indicative of reduced sensation, dexterity, or range of motion of the hands. The record does not include reports of significant manipulative limitations or related treatment (See, e.g. Exhibits B1F, B2F/5). Considering all the evidence, the undersigned finds no meaningful manipulative limitations. Subjectively, the claimant also denied relevant symptoms on occasion, including musculoskeletal pain (See, e.g. Exhibits B2F/4, B4F/41).[Id.]
The ALJ specifically noted that there were medical records subsequent to the relevant time period but “there is no indication that this evidence reasonably relates back to or is probative of the claimant's physical functioning during the relevant period.” [Id.]
The ALJ then offered the following analysis of Plaintiff's complaints and functional abilities:
The undersigned finds that the claimant's allegations about the intensity, persistence, and limiting effects of his physical symptoms are generally inconsistent with the record. Most notably, the claimant alleges he experienced extreme limitations in his exertional abilities during the relevant period to the point that he could not perform any work. However, as discussed, while the claimant was prescribed a cane, multiple treatment notes show a normal unassisted gait, intact lower
extremity strength, negative straight leg raise testing, and generally normal neurological functioning. The record belies the claimant's reports of manipulative limitations, as it contains signs of normal neurological functioning in the upper extremities, normal inspection of the hands, and intact grip strength. Further, the lack [of] follow up back and/or knee imaging showing any progression is somewhat inconsistent with the claimant's reports of a debilitating physical condition. The only referenced imaging of the lumbar spine showed “mild” abnormalities. Treating providers and the consultative examiner both commented that the claimant's pain symptom reports seemed out of proportion to the objective signs and imaging evidence. This too is inconsistent with claimant's reports of a debilitating condition during the relevant period. In all, the undersigned finds the record inconsistent with the claimant's core allegation of physical disability.
This is not to say the claimant did not experience any diminished capacity to perform work-related activities during the relevant period. The record confirms medically determinable back impairments and references abnormal electro-diagnostic testing with respect to the lower extremities. While the claimant repeatedly exhibited a normal unassisted gait, there is also evidence of gait disturbances and the claimant was prescribed a cane. While the record does not reference surgical intervention, claimant was treated with a number of prescription pain medications, including narcotics. Considering this evidence, the undersigned finds that during the relevant period, the claimant was limited to sedentary work, use of a cane for ambulation (as specified in the residual functional capacity), and additional postural limitations (as specified in the residual functional capacity).[R. 37.]
The ALJ then considered Plaintiff's mental health records. [R. 37-38.] The ALJ recognized a PTSD evaluation with the VA in November 2015 where Plaintiff was assessed with a 30% disability rating attributed to PTSD. [R. 37.] The ALJ highlighted Plaintiff's complaints of mental health symptoms, including depression, decreased energy and motivation, difficulty with short-term memory, irritability, and hypervigilance. [Id.] The ALJ also included that there were notes indicating Plaintiff displayed anxious and depressed mood with blunted affect but no objective evidence of psychosis. [Id.] The ALJ further highlighted parts of the medical records that were inconsistent with Plaintiff's complaints of debilitating mental symptoms. [R. 38.]
Again, regarding the records subsequent to Plaintiff's date last insured, the ALJ found those records not probative of his functioning during the relevant period. [Id.]
The ALJ explained her findings regarding Plaintiff's mental functional abilities as follows:
The undersigned finds that the claimant's allegations about the intensity, persistence, and limiting effects of his mental symptoms are somewhat inconsistent with the record evidence. Most notably, other than at the formal PTSD assessment, other mental status examinations yielded overall unremarkable signs indicative of intact basic mental functioning abilities. Again, the claimant exhibited normal memory, intact attention and concentration, intact insight and judgment, and not signs of significant behavioral or cognitive abnormalities. Further, there is no record of inpatient treatment, psychiatric emergencies, or an inability to live independently. Nonetheless, the record references a number of PTSD symptoms, documents treatment provided by the VA, and the presence of some signs of mood disturbances, including depression and anxiety. In addition, as noted, the claimant used a number of pain medication prescriptions, which could be expected to cause some diminished mental alertness and/or tiredness. Considering this evidence and the claimant's allegations, the undersigned finds “moderate” limitations in the “Paragraph B” criteria, as articulated above. Consistent with these limitations, the claimant was limited to understanding, remembering, and carrying out simple tasks. He was limited to uninvolved work decisions with few changes in the work setting. The reports of depression, anxiety, and problems with social interaction support these and additional and significant social interaction limitations.[Id.]
Finally, the ALJ addressed other administrative findings regarding Plaintiff's function.
The ALJ found the state agency consultants' opinions that Plaintiff was capable of light work with additional postural limitations to be generally persuasive as it was consistent with other record evidence, but the ALJ further limited Plaintiff to sedentary work based on Plaintiff's “symptom reports, disability allegations, some signs of gait disturbances, and treatment with a number of pain medications ....” [R. 39.] As to Plaintiff's mental functioning, the ALJ found the state agency consultants' opinions to be somewhat persuasive “because the core assessment that the claimant is generally capable of the demands of simple work is consistent with the lack of appreciable signs of cognitive dysfunction.” [Id.] The ALJ further noted “some of the assessed limitations are stated in vague, equivocal, and vocationally imprecise terms and therefore are not especially probative of the claimant's precise work-related mental limitations.” [Id.]
Regarding the VA disability ratings in the record, the ALJ explained those were not medical opinions under the regulations. [Id.] “[A]s part of the VA review process, treatment notes dated March 2015 include an assessment that the claimant can stand or walk for sustained periods of five minutes to two hours, and . . . the claimant's feet go to sleep if he sits in an upright position[,]” but the ALJ found that “only somewhat persuasive as a finding of significant radiculopathy-related limitations with sitting” since it was inconsistent with other evidence showing normal neurological functioning in the lower extremities and a normal unassisted gait. [Id.]
The ALJ then noted that she had evaluated a prior ALJ decision issued in 2013 finding that, from April 2010 through the date of that decision, Plaintiff had an RFC of light work with additional physical limitations (none manipulative) and generally moderate work- related mental limitations. [R. 40.] The ALJ gave that prior decision only partial weight, finding physical limitations had further restricted Plaintiff's exertional abilities since then and, further, that the mental RFC was specific to the relevant time period the ALJ was assessing. [Id.]
Based on the ALJ's RFC determination, she found Plaintiff could not perform his past relevant work, but there were other jobs in the economy that he could perform. [R. 40-41.]
Discussion
Plaintiff contends that substantial evidence does not support the ALJ's conclusion that he was not disabled and further argues the ALJ cherry-picked from the evidence “to suit her pre-conceived conclusion of non-disability.” [Doc. 10 at 4.] The undersigned disagrees. As set forth above, the ALJ offered a thorough and wide-ranging analysis of Plaintiff's medical records, which were mostly comprised of his VA records. The ALJ's analysis further demonstrates that she considered both how the records supported Plaintiff's allegations of disability and how they were inconsistent with his reported symptoms. The RFC crafted by the ALJ included numerous restrictions to account for Plaintiff's physical and mental functional limitations.
Plaintiff argues “[t]he impairments cited in the VA disability decision are not contradicted by other medical evidence and, therefore, should be viewed as the best indicators of Plaintiff's disability.” [Doc. 10 at 3.] However, he offers no support for that contention. Furthermore, the functional assessments by the state agency consultants in this case are not consistent with Plaintiff's reported disability rating of 100%, and the ALJ explained how she otherwise considered the VA disability ratings found in the record. Finally, the ALJ made clear in the decision that evidence from outside the relevant period was reviewed but found not to reasonably relate back to Plaintiff's functioning during the relevant period. Plaintiff has not pointed to evidence in the record that he had a 100% VA disability rating during the relevant period or how that rating relates back to the relevant period.
Before a regulation change in March 2017, an ALJ was required to either give substantial weight to a VA disability rating or clearly demonstrate that a deviation giving less weight to the VA disability rating was appropriate. Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 343 (2012). However, “this court and at least one other court within the Fourth Circuit have concluded amendments to 20 C.F.R. § 404.1504 and § 404.1512 and rescission of SSR 06-03p rendered the portion of Bird addressing VA disability decisions inapplicable to cases filed after March 27, 2017.” McClellon v. Kijakazi, Case No. 6:20-cv-3216-SAL, 2021 WL 6133847, at *3 (D.S.C. Dec. 28, 2021) (further noting a split in the circuit as to the applicability of Bird following the regulation change). Plaintiff has not cited to Bird or made any similar argument here.
Plaintiff testified he had a VA disability rating of 100%. [R. 59.] The record also includes a letter from the VA on May 19, 2020, which indicates Plaintiff's combined service-connected evaluation is 80%, and he is considered to be totally and permanently disabled due to his service-connected disabilities. [R. 87.]
Plaintiff's arguments to this Court are very generalized and overly broad. He asserts the ALJ's decision is not supported by substantial evidence but he has failed to provide support in the record or the case law for his arguments. The fact that Plaintiff has reweighed the same evidence weighed by the ALJ and come to a different conclusion does not create reversible error dictating remand by this Court. See Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (holding that a reviewing court should not undertake to reweigh conflicting evidence, make credibility determinations, or substitute its judgment for that of the ALJ). The Plaintiff has provided the Court with no basis for finding the ALJ's decision is not supported by substantial evidence. Therefore, the Court declines to recommend remand on this basis.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that the Commissioner's decision be AFFIRMED.
IT IS SO RECOMMENDED.