Opinion
Civil Action No. 6:16-3997-CMC-KFM
01-22-2018
Wallace Duncan Sellers, IV, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
REPORT OF MAGISTRATE JUDGE
This case is before the court for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a)(D.S.C.), concerning the disposition of Social Security cases in this District, and Title 28, United States Code, Section 636(b)(1)(B).
A report and recommendation is being filed in this case, in which one or both parties declined to consent to disposition by the magistrate judge.
The plaintiff brought this action pursuant to Sections 205(g) and 1631(c)(3) of the Social Security Act, as amended (42 U.S.C. 405(g) and 1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security denying his claims for disability insurance benefits and supplemental security income benefits under Titles II and XVI of the Social Security Act.
ADMINISTRATIVE PROCEEDINGS
The plaintiff filed applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") benefits on August 12, 2013, alleging that he became unable to work on April 1, 2013. Both applications were denied initially and on reconsideration by the Social Security Administration. On June 27, 2014, the plaintiff requested a hearing. The administrative law judge ("ALJ"), before whom the plaintiff, his attorney, and Tonetta Watson-Coleman, an impartial vocational expert, appeared on October 15, 2015, considered the case de novo, and on November 16, 2015, found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 119-32). The plaintiff amended his alleged onset date to August 1, 2013, at the hearing. The ALJ's finding became the final decision of the Commissioner of Social Security when the Appeals Council denied the plaintiff's request for review on November 8, 2016 (Tr. 1-6). The plaintiff then filed this action for judicial review.
In making the determination that the plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant meets the insured status requirements of the Social Security Act through December 31, 2017.
(2) The claimant has not engaged in substantial gainful activity since August 1, 2013, the alleged onset date (20 C.F.R §§ 404.1571 et seq., and 416.971 et seq.).
(3) The claimant has the following severe impairment: osteoarthritis(OA) (20 C.F.R. §§ 404.1520(c) and 416.920(c)).
(4) The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 416.920(d), 416.925 and 416.926).
(5) After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform medium work as defined in 20 C.F.R. 404.1567(c) and 416.967(c) except with some limitations. Due to postural limitations, the claimant is capable of frequent balancing, stooping, kneeling, crouching, crawling, and climbing of ramps or stairs. However, the claimant must avoid all climbing of ladders, ropes, and scaffolds. Due to manipulative limitations, the claimant is limited to only occasional overhead reaching with his dominant upper extremity, but is capable of frequent overhead reaching with the non-dominant upper extremity.
(6) The claimant is capable of performing past relevant work as a grocery store manager, convenience store manager, and security alarm salesman. This work does not require the performance of work-related activities precluded by the
claimant's residual functional capacity (20 C.F.R. §§ 404.1565 and 416.965).
(7) The claimant has not been under a disability, as defined in the Social Security Act, from August 1, 2013, through the date of this decision (20 C.F.R. §§ 404.1520(g) and 416.920(g)).
The only issues before the court are whether proper legal standards were applied and whether the final decision of the Commissioner is supported by substantial evidence.
APPLICABLE LAW
Under 42 U.S.C. § 423(d)(1)(A), (d)(5) and § 1382c(a)(3)(A), (H)(i), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do 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." 20 C.F.R. §§ 404.1505(a), 416.905(a).
To facilitate a uniform and efficient processing of disability claims, the Social Security Act has by regulation reduced the statutory definition of "disability" to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment that meets or medically equals an impairment contained in the Listing of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1, (4) can perform his past relevant work, and (5) can perform other work. Id. §§ 404.1520, 416.920. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. §§ 404.1520(a)(4), 416.920(a)(4).
A claimant must make a prima facie case of disability by showing he is unable to return to his past relevant work because of his impairments. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). Once an individual has established a prima facie case of disability, the burden shifts to the Commissioner to establish that the plaintiff can perform alternative work and that such work exists in the national economy. Id. (citing 42 U.S.C. § 423(d)(2)(A)). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Id. at 192.
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings "are supported by substantial evidence and were reached through application of the correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Id. In reviewing the evidence, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Id. Consequently, even if the court disagrees with Commissioner's decision, the court must uphold it if it supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
EVIDENCE PRESENTED
The plaintiff was 44 years old on his amended alleged onset date (August 1, 2013) and 46 years old on the date of the ALJ's decision (November 16, 2015) (Tr. 194). He graduated from high school and earned an associate's degree (Tr. 148-49). The plaintiff has past relevant work experience as a grocery store manager, convenience store manager, and security alarm salesman (Tr. 130). He last worked as a stocker at a retail store; he stopped working in July 2013 (Tr. 148-49).
On April 15, 2009, the plaintiff saw Brandy Bryant-Herndon, FNP-C, at Latta Internal Medicine Associates ("Latta"), for arthritis, pain, and high blood pressure. When the plaintiff returned on February 8, 2010, his blood pressure was 160/100, he was out of Toprol, and he was nervous, depressed, and sad.
On August 18, 2009, Robert Turner, III, M.D., a rheumatologist, examined the plaintiff for seronegative arthritis with reports of morning stiffness, anemia, and crepitation in his shoulders and knees. The plaintiff was prescribed prednisone in addition to his other pain medications and gout medication. The plaintiff's condition was unimproved in December 2009 and April 2010. On April 15, 2010, the plaintiff told Dr. Turner he was still having morning stiffness; his pain was unimproved; and he was having difficulty with shoelaces and buttons, getting in and out of bed, picking up clothes off the floor, using faucets, and getting in and out of car. Dr. Turner felt that the plaintiff was experiencing a flare of gout (Tr. 508-11).
On December 17, 2010, James R. Carroll, M.D., treated the plaintiff for gout, severe rheumatoid arthritis, and chronic obstructive pulmonary disease ("COPD"). When the plaintiff returned to Dr. Carroll on January 3, 2011, he continued to report severe pain from rheumatoid arthritis. On January 7, 2011, Dr. Carroll stated that the plaintiff had severe rheumatoid arthritis, as well as fibromyalgia with chronic pain. When the plaintiff saw Dr. Carroll again on February 3, 2011, the doctor noted that the plaintiff had severe pain from rheumatoid arthritis, and his blood pressure was 142/92 (Tr. 536-40). On January 10, 2011, Dr. Carroll noted that the plaintiff suffered from multiple major medical problems, including severe rheumatoid arthritis, fibromyalgia, chronic pain, anxiety, and depression. Dr. Carroll stated that, in his opinion, the plaintiff was totally and permanently disabled (Tr. 529).
On January 3, 2012, Dr. Carroll examined the plaintiff for withdrawal symptoms from discontinuation of his pain medication. In February 2012, the plaintiff was treated for bronchitis, and in March 2012, he reported to Dr. Carroll that his depression medications were not working (Tr. 1015-19).
On October 3, 2012, Dr. Carroll indicated that the plaintiff had bilateral knee pain with swelling. His blood pressure was 140/90. The plaintiff received Decadron and Depo-Medrol injections in November 2012 and January, February, April, May, June, and August 2013 for bilateral knee, shoulder, and back pain. (Tr. 559-72).
The plaintiff was treated at the Marion Regional Hospital Emergency Room on February 13, 2013, for left shoulder pain when he fell off of a ladder at work. X-rays revealed no fracture or dislocation, and the plaintiff was diagnosed with ligamentous sprain (Tr. 651). The plaintiff began physical therapy on his shoulder, and by April 2013, he reported increased function and more ease using his left arm at work. The plaintiff's physical therapist said he could return to work (Tr. 638-39).
On February 20, 2013, the plaintiff was examined at Marion Orthopaedics Associates for left shoulder injury with positive impingement signs. He was diagnosed with left shoulder pain and possible rotator cuff tear. On February 28, 2013, an MRI of the plaintiff's left upper extremity showed that he had a possible tear of the infraspinatus tendon with a fairly marked amount of fluid in the subdeltoid and subacromial bursa and fairly marked degenerative changes at the acromioclavicular joint with capsular hypertrophy. On March 4, 2013, when the plaintiff returned for a followup, he still had limited range of motion and pain in his left shoulder. On March 18, 2013, Kimberly Spivey, a nurse practitioner at Marion Orthopaedics, diagnosed left shoulder pain, possible tear of the infraspinatus tendon, and possible inflammation. She sent the plaintiff for an evaluation by occupational therapy. On April 8, 2013, the plaintiff was told to continue physical therapy for another three weeks. He reported increased fatigue and discomfort at the end of the day, but he reported increased function and use and decreased pain (Tr. 548-54, 638).
On May 31, 2013, Dr. Carroll noted that he was giving the plaintiff injections for chronic pain and arthritis. On June 14, 2013, Dr. Carroll examined the plaintiff for bilateral knee pain with reduced range of motion and arthritis. On July 15, 2013, the plaintiff had bilateral knee x-rays, which showed degenerative/osteoarthritis change of his right knee and minimal joint space narrowing of the left knee (Tr. 642-45).
On July 30, 2013, Janet Woolery, M.D., a psychiatrist, examined the plaintiff, who reported episodes of mania with passing out; violent episodes; episodes of losing time; either being wide open or asleep; having an inability to focus on anything; and episodes of being hyper and then being depressed. Dr. Woolery diagnosed mood disorder, not otherwise specified, and opiate dependence in full remission. She prescribed Seroquel and continued the plaintiff's Cymbalta. On August 30, 2013, Dr. Woolery noted that the plaintiff still could not sleep, and she increased his Seroquel (Tr. 579-81).
On September 4, 2013, Dr. Carroll stated that the plaintiff had generalized anxiety disorder and depression and prescribed Cymbalta. Dr. Carroll indicated that the plaintiff had depressed mood/affect, poor attention/concentration, and poor memory. Dr. Carroll also felt that the plaintiff had serious work-related limitation of function due to his mental condition (Tr. 583).
On September 30, 2013, Dr. Nicholas DePace examined the plaintiff for a one-time consultative examination at the request of the Social Security Administration. As part of the examination, the plaintiff reported a very limited tolerance for frustration due to pain. Dr. DePace's diagnostic impression was chronic, mild adjustment disorder with anxiety. He noted that the plaintiff was able to perform three-step commands, his concentration appeared to be relatively well-intact, and he had the cognitive ability to perform all activities of daily living (Tr. 587-90).
On October 11, 2013, Dr. Carroll examined the plaintiff for shortness of breath, wheezing, and edema of the lower extremities. On November 1, 2013, the plaintiff had a HbA1C of 8.6 (Tr. 606, 613).
The HbA1c test provides information about a person's average levels of blood glucose over the past three months. A normal level is below 5.7 percent. See https://www.niddk.nih.gov/health-information/diabetes/overview/tests-diagnosis/a1c-test (last visited Jan. 2, 2018).
On October 2, 2013, Melissa J. Tercheck, M.D., examined the plaintiff for arthritis, joint pain, joint swelling, joint stiffness, and decreased joint range of motion. The plaintiff reported pain in his bilateral shoulders, wrists, hands, and fingers, and he indicated that the pain worsened with grasping, working overhead, sitting, standing, kneeling, climbing stairs, humid weather, and cold weather. He was also experiencing extremity numbness and tingling. The plaintiff complained of fibromyalgia symptoms, including joint pain, muscle pain, fatigue, diffuse tenderness, bilateral shoulder pain, knee pain, morning stiffness, headaches, cognitive impairment, anxiety, depression, and insomnia. Dr. Terchek noted osteoarthritis deformity of the hand and finger joints and positive bilateral tender point examination for fibromyalgia. Dr. Terchek's diagnosis was fibromyalgia, and she gave the plaintiff injections of methylprednisone and Depo Medrol. The plaintiff also had a high sedimentation rate on his blood work (Tr. 653-71).
The plaintiff returned to Dr. Terchek on November 6, 2013, for recheck of fibromyalgia with no improvement in his symptoms. Dr. Terchek noted that the plaintiff had daytime drowsiness, fatigue, blurred vision, headaches, neck pain and stiffness, shortness of breath, rapid heartbeat, back and joint pain, anxiety, depression, and insomnia. He complained of widespread pain and fatigue (Tr. 653). Dr. Terchek diagnosed rheumatoid arthritis with pain in wrists, ankles, and knees, as well as osteoarthritis and insomnia. She once again injected methylprednisone and Depo-Medrol. The plaintiff continued to be prescribed prednisone daily. Dr. Tercheck recommended decreasing prednisone because "films and knee fluid and exam are not suggestive of [rheumatoid arthritis]." Dr. Terchek diagnosed osteoarthritis and removed joint fluid from plaintiff's knee (Tr. 655).
On December 13, 2013, Dr. Carroll gave the plaintiff an injection of Decadron and Depo Medrol for pain and inflammation. On January 23, 2014, blood work showed that the plaintiff had a very high sedimentation rate (Tr. 602-16).
On December 14, 2013, the plaintiff had a consultative examination with Taylor Vaughan, M.D., during which the plaintiff reported that he had left and right shoulder pain, as well as rheumatoid arthritis, osteoarthritis, and bilateral knee pain. Dr. Vaughan noted that the plaintiff was moderately obese at 235 pounds, his blood pressure was 182/98, and he had significant tenderness along his left biceps tendon and left AC joint and minimal tenderness along the right AC joint. The plaintiff told Dr. Vaughn that he could handle his personal hygiene, walk a block, and, with some difficulty, climb a flight of stairs. The plaintiff also reported smoking a pack and a half of cigarettes each day for more than 20 years. The plaintiff reported joint tenderness, but otherwise, Dr. Vaughn's physical examination was unremarkable. Specifically, the plaintiff could perform tandem gait and Romberg testing without difficulty or assistive devices. His lungs and heart were normal. His straight leg testing was negative. Dr. Vaughn diagnosed likely left rotator cuff injury, mild right shoulder pain, and opined that the plaintiff would have mild carrying limitations and significant overhead reaching limitations. Dr. Vaughn concluded that the plaintiff had "no significant lower extremity limitations" and no limitations with regard to handling, fingering, and feeling (Tr. 593-97).
On December 29, 2013, state agency physician Irene Richardson, M.D., examined the plaintiff's records and opined that the plaintiff could work at the medium exertional level with postural limitations. Dr. Richardson opined that the plaintiff could occasionally lift and carry up to 50 pounds and could frequently carry up to 25 pounds. She determined that the plaintiff could sit for six hours in an eight-hour workday and could stand or walk for the same amount of time. She also concluded that the plaintiff could frequently climb ramps and stairs, balance, stoop, kneel, crouch, and crawl, but he could never climb ladders, ropes, or scaffolds. Dr. Richardson opined that the plaintiff was limited to occasional left hand overhead reaching and frequent right hand overhead reaching, but had no handling, fingering, or feeling limitations. In evaluating the medical record and the plaintiff's allegations, Dr. Richardson opined that the plaintiff's "functional limitations are out of proportion to the objective evidence" (Tr. 199-202).
On January 17, 2014, the plaintiff was treated by Robert E. Elvington, Jr., M.D., for bilateral knee pain that had been ongoing for several years. The plaintiff described swelling, snapping, and popping of both knees. Dr. Elvington found moderate patellofemoral crepitus with active range of motion and manipulation, as well as tenderness at the patellofemoral joint line. Dr. Elvington diagnosed severe degenerative disc disease of both knees and injected both of the plaintiff's knees with a corticosteroid (Tr. 627-29),
On February 1, 2014, the plaintiff was treated in the emergency room at McLeod Regional Medical Center for progressively worsening shortness of breath, despite smoking cessation one week prior to admission. He reported trouble for the previous six months, even getting too short of breath to take a bath. When he failed to improve, he was admitted to McLeod. At the time of his admission, his glucose level was 557, and he was diagnosed with acute hypoxic respiratory failure with acute lung injury and possibly acute respiratory distress syndrome; bilateral pneumonia; mediastinal and hilar lymphadenopathy; history of chronic bronchitis; severe lactic acidosis; severe sepsis; rheumatoid arthritis on chronic steroid use; uncontrolled diabetes; and mild hypokalemia and hyponatremia. He was placed in intensive care on oxygen. On February 4, 2014, a chest x-ray showed that the plaintiff had cardiomegaly with persistent vascular congestion and probably pulmonary edema suggestive of mild or chronic congestive failure. He was discharged from the hospital on February 10, 2014 (Tr. 673-745).
The plaintiff returned to Dr. Elvington on February 20, 2014, for severe degenerative disc disease in both knees. At this visit, Dr. Elvington noted that the previous corticosteroid injection only lasted five days and that bed rest did not provide relief for his bilateral knee pain. Dr. Elvington suggested Synvisc injections for the plaintiff's knees. On March 20, 2014, the plaintiff returned to Dr. Elvington with continuing bilateral knee pain and bilateral shoulder pain, left greater than right. The plaintiff reported that reaching above shoulder height was painful, as was picking up objects. Dr. Elvington found positive impingement signs in the shoulders. His diagnosis was severe degenerative disease in both knees, rotator cuff tendonitis/bursitis in both shoulders, and possible rotator cuff tear in the left shoulder. Dr. Elvington also gave the plaintiff Synvisc injections in both knees. Dr. Elvington restricted the plaintiff to no overhead work with the left shoulder and no pushing, pulling, carrying, or lifting greater than 15 pounds (Tr. 748-53).
On March 3, 2014, Dr. Carroll completed a Physical Capacities Evaluation for the plaintiff. Dr. Carroll indicated that the plaintiff could lift and/or carry ten pounds occasionally and five pounds frequently in an eight-hour work day; he could sit four hours in an eight-hour work day; stand or walk two hours in an eight-hour work day; he should avoid dust, fumes, gases, extremes of temperature, humidity, and other environmental pollutants; he could occasionally push and pull (arm and/or leg controls), perform gross and fine manipulation, reach (including overhead), and operate motor vehicles; he could never climb (stairs or ladders), balance, bend, stoop, or work with or around hazardous machinery. Dr. Carroll felt that the plaintiff would miss more than four days a month from work as a result of his impairments or treatment. The medical basis for these restrictions according to Dr. Carroll was that the plaintiff had arthritis, lumbosacral disc disease, severe COPD, and chronic pain (Tr. 746).
Dr. Carroll also completed a Clinical Assessment of Pain on March 3, 2014, in which he opined that the plaintiff's pain was present and found to be intractable and virtually incapacitating. Physical activity, such as walking, standing, sitting, bending, stooping, moving of extremities, etc., greatly increased the plaintiff's pain and to such a degree as to cause distraction from tasks or total abandonment of task. Dr. Carroll further felt that side effects of the plaintiff's prescribed medication would cause the plaintiff to be totally restricted and thus unable to function at a productive level of work (Tr. 747). In September 2015, Dr. Carroll provided nearly identical opinions (Tr. 1020-21). He opined that the plaintiff did not need an assistive device to "ambulate even minimally in a normal work day" (Tr. 1021). He did not check any box for that opinion in March 2014 (Tr. 746).
On March 20, 2014, Dr. Elvington examined the plaintiff in connection with his knee and shoulder pain. Dr. Elvington gave the plaintiff knee injections and noted pain with resisted abduction and forward flexion and positive impingement signs upon examination of the plaintiff's shoulders. Dr. Elvington concluded that the plaintiff could return to work, provided that he have no overhead work and no pushing, pulling, carrying, or lifting greater than 15 pounds (Tr. 748-51).
On April 21, 2014, J. Harrell Docherty, Jr., M.D., a rheumatologist, began treating the plaintiff for rheumatoid arthritis. Dr. Docherty prescribed methotrexate for the rheumatoid arthritis. When the plaintiff returned to Dr. Docherty in October 2014, he reported joint pain and swelling, decreased range of motion, and morning stiffness. The plaintiff told Dr. Docherty that he had some difficulty with dressing himself, doing buttons, tying shoelaces, getting in and out of bed, walking outdoors on flat ground, bending and picking up clothes off the floor, and getting in and out of a car. The plaintiff weighed 263 pounds, and his blood pressure was 154/90. Dr. Docherty noted that there had been no improvement in the plaintiff's condition on the methotrexate. In reviewing his systems, the plaintiff denied chest pains, shortness of breath, back pain, joint pain, and numbness (Tr. 758-66).
On May 19, 2014, state agency consultant Darla Mullaney, M.D., opined that the plaintiff could perform light level exertional work with postural limitations. Dr. Mullaney opined that the plaintiff could occasionally lift and carry up to 20 pounds and could frequently carry up to ten pounds. She concluded that the plaintiff could sit for six hours and stand or walk for two hours in an eight-hour workday. She determined that the plaintiff could frequently balance, stoop, kneel, and crouch; could occasionally climb ramps and stairs, kneel, and crawl; but the plaintiff could never climb ladders, ropes, or scaffolds (Tr. 224-27). Dr. Mullaney opined that the plaintiff was limited to occasional left hand overhead reaching and frequent right hand overhead reaching, but had no handling, fingering, or feeling limitations (Tr. 225-26). Dr. Mullaney relied primarily on Dr. Richardson's summary of the evidence, but also considered urology records and orthopedic notes discussing the plaintiff's knee examinations (compare Tr. 201 with Tr. 226-27).
On June 6, 2014, W. Dickson Schaefer, M.D., at Fayetteville Orthopaedics, examined the plaintiff for bilateral knee pain. Dr. Schaefer noted that the plaintiff had tried corticosteroid injections and Synvisc injections for his knee pain. Dr. Schaeffer noticed that the plaintiff had an antalgic gait, he had moderate effusion of both knees, and there was bone on bone articulation medially bilaterally with spurring and subchondral sclerosis. Dr. Schaefer diagnosed the plaintiff with rheumatoid arthritis and primary osteoarthrosis of the knee. He felt that the plaintiff was not a good candidate for unicompartmental knee arthroplasty due to the plaintiff's rheumatoid arthritis. After discussing this with the plaintiff, Dr. Schaefer scheduled surgery (Tr. 754-57). The plaintiff underwent right knee replacement surgery in July 2014 and did well thereafter (Tr. 1071, 1095).
From December 15 until December 27, 2014, the plaintiff was admitted at McLeod Seacoast Hospital for severe respiratory distress, sepsis, acute hypoxemic respiratory failure, pulmonary edema secondary to Acute Respiratory Distress Syndrome ("ARDS"), diabetic ketoacidosis, and possible atypical pneumonia. The plaintiff was initially admitted to the intensive care unit on BiPap, but when he did not improve, he was intubated, and a central line was placed. He also received a transfusion of two units of blood. During this admission, the plaintiff was in critical condition, and his family was informed that he could die from hypoxemic respiratory failure. X-rays during this admission showed bilateral pulmonary lung disease. The plaintiff's immune system was felt to be compromised due to chronic steroid use for rheumatoid arthritis (Tr. 865-1004).
The plaintiff was again admitted to intensive care at McLeod from February 3 until February 10, 2015, for progressive weakness and shortness of breath. He was treated for acute respiratory failure secondary to pneumonia, history of recurrent respiratory failure with the etiology indeterminate, rheumatoid arthritis, type 2 diabetes that was poorly controlled due to steroid therapy, hyponatremia, hyperkalemia, mood disorder, chronic pain syndrome, and history of bronchitis and bronchospasm (Tr. 816-64).
On February 23, 2015, the plaintiff saw Carol R. Young, M.D., in followup for shortness of breath, rheumatoid arthritis, pneumonia, and hypoxemia. He was no longer experiencing fever or chills. After examining the plaintiff, Dr. Young discontinued his home oxygen. Dr. Young observed that the plaintiff's shortness of breath was "markedly improved." She referred him to a rheumatologist for injection therapy and for x-rays to verify that his pneumonia had cleared. When the plaintiff returned to Dr. Young on March 24, 2015, she indicated that he weighed 257 pounds, was still on prednisone, was disabled, but needed to work (Tr. 767-69, 1022-23). The plaintiff had not seen a rheumatologist or gone for chest x-rays. The plaintiff had normal examination findings and walked without a limp. Dr. Young again urged the plaintiff to see a rheumatologist (Tr. 1022, 1023). The plaintiff's lungs were clear three days later (Tr. 770).
David Johnson, M.D., examined the plaintiff on March 27, 2015, for rheumatoid arthritis, chronic pain, one plus pitting edema to the mid tibia bilaterally, diabetes with an elevated HbA1C of 8.6, hypertension, gastroesophageal reflux disease, hypercholesterolemia, and chronic tachycardia (Tr. 770-72).
On March 10, 2015, Michael D. Wilcox, M.D., Ph.D., began treating the plaintiff for bipolar II disorder. Dr. Wilcox noted that the plaintiff had fair energy, concentration, and interest, with mild anxiety. On June 30, 2015, the plaintiff returned to Dr. Wilcox. He reported poor sleep and fair energy, concentration, and interest with mild anxiety (Tr. 1114-17).
The plaintiff was admitted again at McLeod from May 2 until May 6, 2015, for sepsis secondary to pneumonia, acute hypoxemic respiratory failure, and COPD with acute exacerbation. The plaintiff was hypoxic after trying to move furniture. While in the hospital, the plaintiff had sinus tachycardia and one plus edema, and he was placed back on oxygen after having only been off of it for three weeks prior to hospitalization. Sherif R. Abdou, M.D., noted that the plaintiff had a history of poorly controlled diabetes, but Dr. Abdou felt that the chronic prednisone use for rheumatoid arthritis likely made the plaintiff's sugar poorly controlled. The plaintiff was discharged back to home with home oxygen (Tr. 773-815).
On July 8, 2015, David Johnson, M.D., saw the plaintiff for hypercholesterolemia, gastroesophageal reflux disease, diabetes with an elevated HbA1C of 8.9, hypertension, and tachycardia. The plaintiff reported he had no "muscle pain or tenderness" and had no complaints of chest pressure or palpitations. The plaintiff's cardiovascular and respiratory examinations were normal. He had intact musculoskeletal motor strength. Also, the plaintiff demonstrated no mental health issues. Dr. Johnson reported that the plaintiff was cooperative, fully alert, oriented to person, and had an appropriate mood and affect. Dr. Johnson prescribed Lantus insulin for the plaintiff's diabetes and increased his Metoprolol to help with the tachycardia (Tr. 1024-27).
On July 12, 2015, the plaintiff was treated in the emergency room at McLeod for abdominal pains due to opioid withdrawal since he had stopped taking Suboxone after four years (Tr. 1099-1113).
The plaintiff was examined by Dr. Carroll in July and August 2015. Dr. Carroll gave the plaintiff medical clearance for knee surgery on August 28, 2015 (Tr. 1005-06).
On August 7, 2015, the plaintiff began treatment with Eric Heimberger, M.D., when the plaintiff reported increasing pain in his left knee and some residual pain and stiffness in his right knee, despite total right knee replacement surgery in July 2014. Dr. Heimberger noted trace effusion in the right knee, and he diagnosed primary osteoarthritis of the left knee and history of right knee arthroplasty. X-rays of the plaintiff's right knee showed that his replacement implants were in good position with no signs of loosening (Tr. 1097). On August 31, 2015, Dr. Heimberger performed total left knee arthroplasty on the plaintiff. The plaintiff was also treated for tachycardia at this time since his heart rate was running in the 140's and 150's. When he returned to Dr. Heimberger in followup of surgery on September 15, 2015, his knee was doing well. Dr. Heimberger diagnosed rheumatoid arthritis, osteoarthritis of the left knee, and history of bilateral knee replacement (Tr. 1028-98, 1121-23).
On September 30, 2015, the plaintiff was treated at McLeod after he slipped and fell directly on his left knee. He was diagnosed with contusion of the knee, placed in a knee immobilizer, and prescribed crutches. He followed up with Dr. Heimberger on October 6, 2015, and Dr. Heimberger felt that the fall had exacerbated his postoperative pain, but no damage was done to the knee (Tr. 1118-20, 1128-46).
On December 27, 2015, the plaintiff was treated at McLeod Emergency Room for abdominal pain resulting from pancreatitis and bipolar disorder. He was admitted to the hospital, and Fady Grace, M.D., indicated that several of the plaintiff's medications, namely Abilify, Depakote, and Fenofibrate, could provoke acute pancreatitis (Tr. 100-03).
On January 1, 2016, the plaintiff was admitted to McLeod due to persistent abdominal pain secondary to pancreatitis caused by hypertriglyceridemia. During this admission, the plaintiff was also treated for Type 2 diabetes, fatty liver, bipolar disorder, hypertension, hyponatremia, kidney stones, rheumatoid arthritis, anxiety disorder, and chronic anemia (Tr. 62-84).
The plaintiff was again admitted at McLeod from February 12-15, 2016, for severe abdominal pain due to acute pancreatitis secondary to hypertriglyceridemia. While in the hospital, it was noted that he had been prescribed multiple doses of prednisone despite having uncontrolled diabetes. His blood sugar was 590, and he was admitted to the intensive care unit. While hospitalized, he began to have multi-organ system failure. Due to acute hypoxemic respiratory failure with subsequent intubation, he was transferred to McLeod Regional Medical Center in Florence, South Carolina (Tr. 8-61).
At the hearing, the plaintiff testified that he lived with this wife and infant daughter. He testified that he was able to drive for short distances but could drive no longer than 30 minutes because it hurt his knees and back to sit for longer than that. His wife drove for longer distances, and he would lie back in the passenger seat. He also got sleepy from some of his medication. He had a high school diploma and an online associate's degree in Bible seminary (Tr. 145-49, 163).
The plaintiff last worked as a stocker at Hobby Lobby, where he worked from 2012 until July 31, 2013. On this job, he was required to lift 50 pounds. He was asked to resign due to his health. Prior to Hobby Lobby, he worked at the Pantry as a manager-in-training, which meant that he did daily reports, deposits, ran the cash register, did inventory, and managed the employees. He also previously worked at Sav-A-Lot as a stocker, where he lifted up to 50 pounds. He drove a truck for Coastal Sanitary Supply, he was a salesman for ADT, and he drove a delivery truck for Franklin Bread. He also worked at Sellers and Sellers IGA, which was a family-owned company, as a manager (Tr. 149-52, 163-64).
The plaintiff testified that he became a volunteer associate pastor at his church starting in late 2014 and ending in 2015. There were only eight people in the church. As part of this position, he befriended an individual and counseled the man at the plaintiff's home twice weekly. He filled in for the pastor once in a year, and he was not involved in any other duties at the church (Tr. 154-56, 165-66).
The plaintiff testified that he was diagnosed with rheumatoid arthritis in 2009, and it caused pain throughout his body, especially in his hands. He described having difficulty using his hands. He stated that his is rotator cuffs were torn, so he had limited range of motion in both shoulders and arms, with his left shoulder being worse than his right. He had physical therapy on his left shoulder. He tried Synvisc injections in both knees prior to bilateral total knee replacements, and he was still trying to recover from his last knee replacement at the time of the hearing. He testified that he took arthritis medication for his low back pain. He also stated that he suffered from bipolar disorder, with the manic side of it being controlled with medication, but the depression continued to be problematic. He took four bipolar prescription medications, but he still experienced depression and anxiety. He took medication for anxiety, since he got nervous, shaky, and anxious. He testified that he stopped drinking four to five years prior to the hearing, he quit smoking two years before the hearing, and he was able to get off of controlled substance pain medication three to four years before the hearing (Tr. 156-60, 164, 177)
The plaintiff testified that he had also been diagnosed with fibromyalgia. He took prescription ibuprofen for pain three times daily, as well as Tylenol Arthritis two tablets, three times daily. He has also been on prednisone for six years. He described having trouble gripping due to pain and swelling in his hands. His hands would swell every other week for several days each time. He took Lasix for swelling in his hands, stomach, and legs. His stomach and legs would swell once monthly for about a week. It was easier for him to hold smaller objects like a ballpoint pen when his hands are swollen, and he had difficulty at times with opening a bottle or a jar. He had trouble reaching overhead and behind him, which was one of the reasons he had trouble bathing and shaving. He was able to help his wife bring in groceries, if he carried the light items like bread, and the heaviest item he could carry was a gallon of milk. Due to pain in his legs and back, he was unable to walk for more than 15 minutes without sitting; he was unable to stand for more than 15 to 20 minutes; and he was unable to sit for more than 30 minutes. The plaintiff had to change from sitting to standing during the hearing. He had problems bending over and kneeling (Tr. 161, 166-71).
The plaintiff testified that he is diabetic, and he was prescribed Lantus insulin, Januvia, and metformin. Despite multiple medications, he testified that he still had trouble controlling his blood sugar. His blood sugars consistently ran 200 or more, and when his blood sugar was high, he got anxious, nervous, and his vision was blurry. He used a ProAir inhaler for COPD about once weekly when he had trouble breathing or the humidity was high. He also had a home nebulizer and albuterol solution for use in treating the COPD, but he testified that he had not used it in the couple of months before the hearing because he had been in the hospital during that time. In the two years before the hearing, the plaintiff had been hospitalized four times for extended periods during which he was in the intensive care unit on oxygen, and he was on a ventilator during one of the hospitalizations (Tr. 172-76).
The plaintiff's wife fixed his breakfast daily and got his medication. After taking his morning medication, he fell asleep for approximately two hours. The plaintiff's wife shaved and bathed him, and he sat in the recliner most of the day. Occasionally the plaintiff used a self-propelled mower to cut his yard, but he could not cut for more than 15 minutes at a time and then needed to rest for 30 minutes. The plaintiff was unable to keep up with his medications without help. He also took a nap in the afternoon for about an hour. He did not sleep well at night, sleeping only about four hours nightly. He was not able to do household chores, except for occasionally taking out trash. During the day, he read his Bible and watched television. He could not watch television for an hour since he could not focus and keep his mind on it, and he could not read the Bible for more than 20 minutes due to lack of concentration and focus. The plaintiff testified that he was unable to write the monthly bills or manage the checkbook since his memory was bad (Tr. 160-62, 164-65, 177-79).
The vocational expert testified that the plaintiff's past relevant work included route delivery driver, which is medium in exertional level with a specific vocational preparation ("SVP") of 4 and Dictionary of Occupational Titles ("DOT") number 905.663-014; grocery store manager, light as described and medium to heavy in exertional level as performed, SVP of 7, DOT number 185.167-046; delivery driver, medium exertionally, with an SVP of 3, DOT number 292.353-010; convenience store assistant manager, light in exertional level, SVP of 6, DOT number 189.167-018; stocker, heavy exertionally, with an SVP of 4, and DOT number 299.367-014; and security alarm salesman, medium in exertional level, with an SVP of 5, and DOT number 259.257-022. (Tr. 181-182)
The ALJ asked the vocational expert a hypothetical question with the following limitations: the individual is limited to medium work, he can never climb ladders, ropes, or scaffolds; he can frequently climb ramps and stairs; he can frequently balance, stoop, kneel, crouch, and crawl; he can occasionally reach overhead with the dominant left arm; he can frequently reach overhead with the non-dominant upper extremity. The vocational expert replied that the individual could perform the past relevant work of grocery store manager as generally performed, assistant convenience store manager as generally and actually performed, and the security alarm salesman as generally and actually performed. The vocational expert also opined that the individual could perform other medium, unskilled jobs including a laboratory equipment cleaner, SVP of 2; DOT number 381.687-022; 2,137,730 jobs nationwide; hand packager, SVP of 2; DOT number 920.587-018; 693,170 jobs nationwide; and hospital cleaner, SVP of 2; DOT number 323.687-010; 929,540 jobs nationwide (Tr. 183-84).
The ALJ asked another hypothetical question, which assumed an individual who is limited to light work with the inability climb ladders, ropes, or scaffolds; frequently able to climb ramps or stairs, balance, and crouch; occasionally able to kneel, and crawl; with the same overhead reaching requirements as stated in the previous hypothetical. The vocational expert indicated that the person could still perform the past relevant work of grocery store manager and convenience store manager as generally performed. He could also perform light, unskilled jobs of ticket seller, SVP of 2; DOT number 211.467-030; 3,398,330 jobs nationwide; order caller, SVP of 2: DOT number 209.667-014; 2,889,970 jobs nationwide; and sorting machine operator, SVP of 2; DOT number 649.665-010; 489,750 jobs nationwide (Tr. 185-86).
The plaintiff's counsel asked the vocational expert to consider an individual who would need to alternate sitting and standing with 30 minutes of sitting at one time and then standing for 15 minutes at one time. The vocational expert replied that the individual would not be able to retain and maintain employment on the past relevant jobs since those jobs would not allow for change of position that frequently and still remain on task. The jobs of order caller and ticket seller would allow for a sit-stand option (Tr. 186-87).
The plaintiff's counsel also asked the vocational expert to assume that the hypothetical person would not be able to lift more than ten pounds occasionally and five pounds frequently; he could sit for four hours in an eight-hour day; he could stand and walk for two hours in an eight-hour day; he would need to avoid dust, fumes, gases, extremes of temperature, and humidity; he could occasionally push and pull with his arms or use leg controls; he could occasionally perform gross and fine manipulation; he could occasionally reach overhead; he could never climb stairs or ladders, balance, bend, or stoop; and he would be absent for more than four days monthly due to his medical problems. The vocational expert replied that the individual would not be able to retain or maintain employment since he would be capable of work below sedentary level, and his absenteeism would be more than is tolerable in the workplace (Tr. 187-88).
The plaintiff's counsel also asked the vocational expert to consider how employment would be affected if an individual who, due to side effects of medication, would need to lie down two to three hours daily outside of normal work breaks. The vocational expert stated that the person would not be able to retain or maintain employment since he would not be able to complete his work due to being away from the work station for too much time (Tr. 188).
The ALJ then asked the vocational expert to consider the effect of a limitation of no concentrated exposure to pulmonary irritants. The vocational expert responded that the jobs of grocery store manager, convenience store manager, salesman, ticket seller, order caller, sorting machine operator, laboratory equipment cleaner, hand packer, and hospital cleaner would all be available since there would not be concentrated exposure (Tr. 188-89).
ANALYSIS
The plaintiff argues that the ALJ erred by (1) finding a number of his conditions were not severe impairments; (2) failing to address several of his impairments and failing to consider the combined effect of all his impairments in the residual functional capacity ("RFC") assessment; (3) failing to properly consider the opinion of treating physician Dr. Carroll; (4) giving great weight to the opinion of state agency consultant Dr. Richardson; and (5) failing to include all of his limitations in the hypothetical to the vocational expert.
Severe Impairments
The ALJ found that the plaintiff had one severe impairment: osteoarthritis (Tr. 121). The plaintiff argues that the ALJ erred in failing to find that his COPD, diabetes, affective disorder, anxiety disorder, rheumatoid arthritis, bilateral shoulder pain due to possible left rotator cuff tear and tendonitis/bursitis, osteoarthritis and degenerative joint disease of both knees status post bilateral knee replacement surgeries, chronic pain syndrome, fibromyalgia, bipolar disorder, sinus tachycardia, gout, and depression were also severe impairments (doc. 18 at 21-25).
The plaintiff provides no support or argument for his contention that the ALJ erred in failing to find that his chronic pain syndrome, sinus tachycardia, hypertension, and gout were severe impairments (doc. 18 at 21-24). With regard to his fibromyalgia, the plaintiff states only that it was "diagnosed by Dr. Carroll and by a treating rheumatologist with positive tender points on examination" (doc. 18 at 24 (citing tr. 540, 659)). He provides no analysis or medical evidence that would suggest that fibromyalgia affected his ability to work. See Washington v. Astrue, 698 F. Supp. 2d 562, 580 (D.S.C. 2010) (concluding that the diagnosis of an impairment, without evidence of how the impairment limited the claimant's ability to work, was insufficient to establish severity at step two). Accordingly, these impairments will not be discussed further herein.
A severe impairment is one that "significantly limits [a claimant's] physical or mental ability to do basic work activities." 20 C.F.R. §§ 404.1520(c), 416.920(c). Pursuant to Social Security Ruling ("SSR") 96-3p, "[A]n impairment(s) that is 'not severe' must be a slight abnormality (or a combination of slight abnormalities) that has no more than a minimal effect on the ability to do basic work activities." 1996 WL 374181, at *1.
The ALJ found that the plaintiff's COPD was a non-medically determinable impairment since "no such diagnosis appears in the medical record" (Tr. 122). The plaintiff argues that this was error. The plaintiff notes that Dr. Carroll diagnosed him with COPD on December 17, 2010 (Tr. 538). The Commissioner acknowledges that the plaintiff is correct that the ALJ erred in stating that there was no diagnosis of COPD in the record (doc. 19 at 11). However, the Commissioner argues that the "mistake makes little difference . . . because the ALJ provided a thorough examination of Plaintiff's pulmonary functioning and explained why his COPD did not affect Plaintiff's ability to work" (id. (citing Tr. 122)).
At step two of the sequential evaluation process, the ALJ supported her finding that the plaintiff's COPD was a non-medically determinable impairment as follows:
Although the claimant testified about symptoms related to this condition, no such diagnosis appears in the medical record. Instead, claimant was hospitalized and treated for pneumonia, which was likely related to his history of heavy cigarette smoking (Exhibits 23F, 30F, and 35F). On February 4, 2015, the claimant reported a shortness of breath episode (Exhibit
30F/48). However, the claimant also reported that he had been "lifting furniture and doing hard labor" (Exhibit 30F/48).(Tr. 122).
On February 23, 2015, the claimant presented for diagnostic spirometric diagnostic testing (Exhibit 28F). Significantly, Carol Young, M.D., noted that the claimant was back to his baseline (Exhibit 28F/1). Additionally, Dr. Young examined the claimant with "markedly improved" pulmonary functioning (Exhibit 28F/2). On August 26, 2015, x-rays of the claimant's chest were unremarkable (Exhibit 35F/66). . . . [I]n the absence of laboratory or clinical findings or medical observations validating symptoms the existence of a physical impairment cannot be medically determined.
As noted by the plaintiff, in a Physical Capacities Evaluation dated March 3, 2014, Dr. Carroll listed severe COPD as one of the medical reasons for the plaintiff's limitations he had listed therein, which included lifting ten pounds occasionally and five pounds frequently; sitting for up to four hours; standing or walking up to two hours; avoiding environmental pollutants; and never climbing stairs or ladders, working around hazardous machinery, or bending or stooping (Tr. 746). Further, during his hospitalization for several days in May 2015, COPD with acute exacerbation was listed as one of the admitting and discharging diagnoses (Tr. 773). During that hospitalization, it was noted that the plaintiff "had multiple hospitalizations secondary to pneumonia" (Tr. 775). Upon admission, it was noted that the plaintiff was hypoxic after trying to move furniture, and he had productive cough, hypoxemia, shortness of breath, chills, and achiness, and it was his "third or fourth hospitalization with the same symptoms" (Tr. 777). He was discharged on oxygen after having only been off of it for three weeks prior to hospitalization (Tr. 775). It was noted that it was "unclear why he continues to get these recurrent events" (Tr. 779). Also, in a Physical Capacities Evaluation completed by Dr. Carroll in September 2015, Dr. Carroll again listed severe COPD as one of the medical reasons for the plaintiff's limitations, which were identical to those he found in March 2014 (Tr. 1021). The plaintiff testified that he was prescribed an inhaler and albuterol for his nebulizer due to COPD (Tr. 174-75).
Based upon the foregoing, substantial evidence does not support a finding that the plaintiff's COPD was a non-severe impairment. However, as argued by the Commissioner (doc. 19 at 11), there is "no reversible error where the ALJ does not find an impairment severe at step two provided that he or she considers that impairment in subsequent steps." Washington v. Astrue, 698 F. Supp. 2d 562, 580 (D.S.C. 2010). Here, the ALJ does not appear to have considered the plaintiff's pulmonary and respiratory issues, and specifically his COPD, at subsequent steps of the sequential evaluation process. Given the plaintiff's multiple hospitalizations for respiratory distress, hypoxia, and pneumonia and evidence of the plaintiff experiencing shortness of breath with exertion, consideration of the plaintiff's COPD would be of particular importance here as the ALJ found the plaintiff had the RFC to perform medium work with additional postural and manipulative limitations.
Notably, the ALJ did not include any environmental limitations in the RFC assessment. However, in the hearing, the ALJ asked the vocational expert whether a limitation to no concentrated exposure to pulmonary irritants would change any of the jobs that were identified in response to the previous hypothetical. The vocational expert testified that the identified jobs could still be performed with that additional limitation (Tr. 188-89).
Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. 20 C.F.R. §§ 404.1567(c), 416.967(c). --------
The plaintiff further argues that the ALJ erred in failing to find that his diabetes was a severe impairment. The ALJ found that "nothing in the medical records specify that this impairment causes any significant functional limitations. Instead, a review of all of the objective evidence of record indicates that this impairment is well treated and so it is therefore determined to be non-severe" (Tr. 122).
The undersigned finds that the ALJ's determination that the plaintiff's diabetes was not a severe impairment because it did not cause any significant functional limitations and was "well treated" is not based upon substantial evidence. At the hearing, the plaintiff testified that he took insulin, Januvia, and metformin for his diabetes, and he had trouble controlling his blood sugars. The plaintiff further testified that when his blood sugar was high, he felt anxious and nervous and his eyes got blurry (Tr. 172-74). The medical evidence shows that, in November 2013, the plaintiff's HbA1C was 8.6 (Tr. 606, 613). In February 2014, when the plaintiff was admitted to the hospital for progressively worsening shortness of breath, his glucose level was 557, and he was diagnosed with, among other things, uncontrolled diabetes (Tr. 673-745). When the plaintiff was hospitalized in December 2014, one of the admitting diagnoses was diabetic ketoacidosis (Tr. 865-1004). During his hospitalization in February 2015 due to progressive weakness and shortness of breath, the plaintiff was treated for Type 2 diabetes that was poorly controlled due to steroid therapy (Tr. 816-64). In March 2015, the plaintiff's HbA1C was 8.6 (Tr. 770-72). When the plaintiff was hospitalized in May 2015, Dr. Abdou noted that the plaintiff had a history of poorly controlled diabetes, and he felt that the chronic prednisone use for his rheumatoid arthritis likely made the plaintiff's sugar poorly controlled (Tr. 773-815). In July 2015, the plaintiff saw Dr. Johnson for diabetes with an elevated HbA1C of 8.9, and Dr. Johnson prescribed Lantus insulin for the plaintiff's diabetes (Tr. 1024-27). When the plaintiff was admitted to the hospital in February 2016, it was noted that he had been prescribed multiple doses of prednisone despite having uncontrolled diabetes, and his blood sugar at that time was 590 (Tr. 8-61).
Based upon the foregoing, substantial evidence does not support a finding that the plaintiff's diabetes was a non-severe impairment. Moreover, the ALJ does not appear to have considered the plaintiff's diabetes at subsequent steps of the sequential evaluation process. Accordingly, the undersigned recommends remand for further consideration of the plaintiff's COPD and diabetes at step two and in subsequent steps of the sequential evaluation process.
The plaintiff next argues that the ALJ erred in determining that his mental health impairments were non-severe, "especially since [he] is on multiple bipolar medications and an anxiety medication and testified that his depression is still problematic" (doc. 18 at 23). At step two of the sequential evaluation process, the ALJ discussed the plaintiff's alleged mental impairments in detail, noting the medications the plaintiff was prescribed and his testimony that he sometimes felt depressed even on his medications (Tr. 122). The ALJ found that the plaintiff's mental impairments were "well treated" and analyzed the medical opinions as to the plaintiff's mental limitations (Tr. 122-23). Specifically, the ALJ explained that she gave little weight to the opinion of Dr. Carroll, who opined that the plaintiff had "serious" work related mental limitations, as it was an overly broad statement without any supporting explanation (Tr. 122-23). The ALJ further explained that she gave great weight to the consultative mental status examination by Dr. DePace, who opined that the plaintiff was capable of performing three-step commands and that his concentration was "relatively well-intact" (Tr. 123). The ALJ also discussed the plaintiff's recent mental health treatment with Dr. Wilcox, who determined that the plaintiff had only mild symptoms and was complying with his course of treatment (Tr. 123 (citing Tr. 1114)). Lastly, the ALJ evaluated the plaintiff's alleged mental limitations under the 12.00C Listing of Impairment Criteria, and determined that the plaintiff had no limitations in activities of daily living and social functioning; mild limitations in concentration, persistence, or pace; and no episodes of decompensation (Tr. 123-24). The plaintiff has failed to point to any specific error in the ALJ's analysis of his mental impairments at step two, and the undersigned finds that the ALJ's determination that the plaintiff's mental impairments were non-severe was based upon substantial evidence. Furthermore, the ALJ also considered the plaintiff's alleged mental limitations in the RFC assessment (Tr. 128). However, as the undersigned has recommended that this case be remanded for consideration of other impairments as discussed above, upon remand, the ALJ should also specifically consider the plaintiff's alleged mental impairments at all steps of the sequential evaluation process
Next, the plaintiff argues that the ALJ erred "in failing to even address many of [his] impairments," including his rheumatoid arthritis, knee pain, and shoulder pain (doc. 18 at 23-24). With regard to his rheumatoid arthritis, the plaintiff notes that "[w]hile the Commissioner designated [his] osteoarthritis as his only severe impairment, osteoarthritis and rheumatoid arthritis are very different diagnoses" (doc. 18 at 23). In the RFC assessment, the ALJ noted that the "objective medical evidence supports a finding for severe impairments related to the claimant's osteoarthritis" (Tr. 126). The ALJ then went on to discuss the plaintiff's diagnosis with rheumatoid arthritis as well as his shoulder pain and knee pain (Tr. 126-30). Thus, it appears that the ALJ considered these issues under the umbrella term of osteoarthritis.
The ALJ addressed the plaintiff's testimony concerning his rheumatoid arthritis, his diagnosis, his failure to follow up with a rheumatologist, and described his treatment with orthopedic providers who, in part, treated his rheumatoid arthritis (Tr. 126-28). The ALJ also addressed the plaintiff's testimony as to bilateral knee pain (Tr. 125-26). The ALJ noted that x-rays revealed degenerative osteoarthritic changes in both knees and that knee injections had provided the plaintiff with "some relief" (Tr. 127). The ALJ also addressed examination records showing full strength, flexion, and extension and the plaintiff's knee replacement surgeries in both knees, after which he did well (Tr. 127). The ALJ also discussed the plaintiff's testimony regarding his bilateral shoulder pain (Tr. 125-26), his diagnosis of inflamed bursitis in his left shoulder (Tr. 126), physical examinations of his left shoulder due to ligament sprain (Tr. 127), and the consultative examiner's evaluation of the plaintiff's shoulder pain (Tr. 129). The ALJ then specifically "accounted for [the plaintiff's] reduced left and right shoulder ability by limiting his overhead reaching" (Tr. 130) to occasional for his dominant (left) arm and frequent for his non-dominant arm (Tr. 125).
As noted above, there is "no reversible error where the ALJ does not find an impairment severe at step two provided that he or she considers that impairment in subsequent steps." Washington, 698 F. Supp. 2d at 580. While the ALJ did not find the plaintiff's rheumatoid arthritis, knee pain, and shoulder pain were severe impairments at step two, she considered the impairments in subsequent steps, and, therefore, there is no reversible error. However, as the undersigned has recommended that this case be remanded for consideration of other impairments as discussed above, upon remand, the ALJ should also specifically consider these impairments at all steps of the sequential evaluation process.
Remaining Allegations of Error
The court has found sufficient basis to recommend remand of this matter based on the ALJ's failure to properly consider certain of the plaintiff's impairments at step two of the sequential evaluation process. The plaintiff further argues that the ALJ erred in the RFC assessment by failing to address several of his impairments and failing to consider the combined effect of all his impairments; failing to properly consider the opinion of treating physician Dr. Carroll; giving greater weight to the opinion of state agency consultant Dr. Richardson, who did not have access to the entire medical record, than to the opinion of state agency consultant Dr. Mullaney, who opined that he could perform a reduced range of light work with additional postural and exertional limitations; and failing to include all of his limitations in the hypothetical presented to the vocational expert (doc. 18 at 24-28). Should the district court adopt this recommendation, upon remand, the ALJ will be able to reconsider and re-evaluate the evidence as part of the reconsideration. Hancock v. Barnhart, 206 F. Supp.2d 757, 763-64 n.3 (W.D. Va. 2002) (on remand, the ALJ's prior decision has no preclusive effect as it is vacated and the new hearing is conducted de novo). Accordingly, as part of the overall reconsideration of this claim upon remand, the ALJ should also consider and address these additional allegations of error raised by the plaintiff. See Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3rd Cir.2003) (remanding on other grounds and declining to address claimant's additional arguments).
CONCLUSION AND RECOMMENDATION
Now, therefore, based on the foregoing, it is recommended that the Commissioner's decision be reversed pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be remanded to the Commissioner for further consideration as discussed above.
s/ Kevin F. McDonald
United States Magistrate Judge January 22, 2018
Greenville, South Carolina