Opinion
Civil Action 5:20-1667-DCN-KDW
05-13-2021
Barbara Siders, Plaintiff, v. Andrew M. Saul, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
KAYMANI D. WEST UNITED STATES MAGISTRATE JUDGE
This appeal from a denial of social security benefits is before the court for a Report and Recommendation (“Report”) pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying her claim for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) pursuant to the Social Security Act (“the Act”). For the reasons that follow, the undersigned recommends that the Commissioner's decision be affirmed. I. Relevant Background
A. Procedural History
On February 22, 2017, Plaintiff protectively filed applications for DIB and SSI alleging she became disabled on June 8, 2016. Tr. 197-206. Plaintiff's applications were denied initially on July 31, 2017, Tr. 84-85, and on reconsideration on November 21, 2017, Tr. 120-121. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). Tr. 133-34. ALJ Suhirjahaan Morehead conducted an administrative hearing on April 23, 2019, taking testimony from Plaintiff and Vocational Expert (“VE”) Dr. Julia Russell. Tr. 29-50. The ALJ denied Plaintiff's claim in a decision dated July 8, 2019. Tr. 10-22. Plaintiff requested review of this decision by the Appeals Council. Tr. 194-95. After granting Plaintiff's request for additional time, Tr. 7-8, on March 2, 2020 the Appeals Council sent Plaintiff a “Notice of Appeals Council Action” indicating it had denied Plaintiff's request for review of the ALJ's July 2019 decision, Tr. 1-5. Plaintiff brought this action seeking judicial review of the Commissioner's decision in a Complaint filed on April 28, 2020. ECF No. 1.
The initial Disability Determination and Transmittals reflect a filing date of February 22, 2017, for both DIB and SSI. Tr. 84-85. However, on reconsideration the SSI Disability Determination and Transmittal reflects a filing date of March 27, 2017.
B. Plaintiff's Background
Born in September 1956, Plaintiff was 59 years old on her alleged onset date of June 8, 2016. Tr. 227. In her March 27, 2017 form Disability Report-Adult Plaintiff indicated that she was 5'6” tall and weighed 130 pounds. Tr. 230. Plaintiff indicated that she stopped working on June 8, 2016 because of her medical conditions which she listed as sciatica, arthritis, depression, and “bad wrist sprained but never healed.” Id. Plaintiff listed the following jobs in her job history: plant merchandiser in retail stores (March 2011-June 2011); retail live nursery specialist (Sept. 2011-July 2014); retail associate (April 2015-July 2015); and warehouse associate (Aug. 2015-June 2016). Tr. 231. Plaintiff indicated that she completed two years of college and did not attend special education classes. Id. Plaintiff indicated that in 1994 she completed “computer networking at a tech school hardware oriented before the internet.” Id.
In a September 12, 2017 Disability Report-Appeal, Plaintiff indicated a change in her medical condition that occurred January 1, 2017. Tr. 263. Plaintiff indicated that her conditions were getting worse, the chronic blepharitis in her eyes had gotten worse, and she was more depressed. Id. In a subsequent Disability Report-Appeal dated January 22, 2018, Plaintiff again noted that her conditions had “gotten worse” and indicated she was suicidal, and she had “more depression.” Tr. 299-300.
Blepharitis is an inflammation of the eyelids in which they become red, irritated and itchy with dandruff-like scales that form on the eyelashes. It is a common eye disorder caused by either bacteria or a skin condition, such as dandruff of the scalp or rosacea. See https://www.aoa.org/healthy-eyes/eye-and-vision-conditions/blepharitis?sso=y (last visited May 12, 2021).
C. Administrative Proceedings
Plaintiff appeared with counsel on April 23, 2019 before ALJ Morehead for her administrative hearing. Tr. 29. VE Russell also appeared and testified. Id. Plaintiff appeared in Greenville, South Carolina. Tr. 31. The ALJ and VE appeared via videoconference from Chattanooga, Tennessee. Id.
1. Plaintiff's Testimony
The ALJ asked Plaintiff why she felt she was disabled. Tr. 33. Plaintiff responded that she hurts all the time, has a nervous condition, cannot stand or walk for any period of time, and sitting hurts. Id. The ALJ noted that Plaintiff was not seeing a therapist or mental health professional for her nervous condition. Id. Plaintiff responded that she did not know who to see and she had considered going to Regional Hospital or to mental health, but she does not have any insurance. Id. Plaintiff stated that she just deals with it and tries to stay away from stressful situations. Id. The ALJ noted that it did not appear that Plaintiff had been getting a lot of treatment as her treatment record was not very large. Id. Plaintiff responded that she does not trust doctors. Id.
The ALJ reviewed Plaintiff's work history starting with her employment with Swift Transportation Services in 2004. Tr. 34. Plaintiff stated that her job was “driver management” and she was responsible for keeping a fleet of drivers moving, along with dealing with driver issues, and working with planning and payroll. Tr. 34-35. She stated that it was “a sit-down job.” Tr. 35.
Plaintiff testified that she did the same type of work for U.S. Express; she managed drivers and dispatched loads. Id. The ALJ noted that in 2010 Plaintiff had a lot of different jobs. Id. Plaintiff stated that she started working for Plant Partners through the Lowe's garden shop, and then worked for U-Rent-A-Plant where she watered plants at different businesses that had rented plants from the company. Tr. 36. She was then hired by Lowe's as a live nursery specialist and worked there until 2014. Id. Plaintiff testified that in 2015 and 2016 she worked for a temp agency doing seasonal work at Amazon and part-time work in the garden shop at Wal-Mart. Tr. 37. Plaintiff testified that at Amazon she first worked on a line scanning boxes and placing them in a cart and wrapping items in bubble wrap. Tr. 37-38. She stated that before she left Amazon, she was doing quality control work and she pushed a cart. Tr. 38.
The ALJ interrupted her questioning of Plaintiff to pose hypotheticals to the VE. Tr. 38-39. The ALJ then resumed questioning of Plaintiff to ask about her impairments. Tr. 40. Plaintiff testified that she has sciatica which is “arthritis in [her] back pushing on a nerve that goes down the leg.” Id. Plaintiff testified that she “cannot walk very far. Cannot walk at all sometimes if the nerve gets really irritated. [She] cannot stand any period of time.” Id. Plaintiff described “very far” as a “few steps.” Id. Plaintiff stated that the pain “goes across [her] rear, down the leg, into her toes. [Her] toes will be numb sometimes.” Id. The ALJ noted that Plaintiff has stenosis in her “L spine.” Tr. 41. The ALJ asked Plaintiff if she was taking any mental health medications and Plaintiff testified in the negative noting that she had a prescription for Valium for panic attacks, but she did not like the way it made her feel. Id. She also testified that she cannot take antidepressants because she does not like the side effects. Id.
This colloquy is contained in the following section of “VE's Testimony.”
In response to questions from her attorney Plaintiff stated that when she tries to stand up and walk, she bends over. Tr. 42. Plaintiff testified that it is easier if she could bend over almost 90 degrees to relieve pressure on the nerve in her back. Id. Plaintiff testified that when she was nearing the end of her job at Amazon she was leaning on her cart or putting her leg up on a stepstool to get into a “position where it wasn't hurting so bad.” Tr. 43. Plaintiff stated that she would not have been walking around without the cart, and she would have been “squatting down and trying to relieve the pressure on that nerve.” Id. Plaintiff stated that she had a hard time making it from the parking lot to the door and she would have to stop and get into a squatting position. Id.
Plaintiff's counsel noted that based on the opinions of Dr. Early and Plaintiff's treating doctor, Plaintiff would not be able to do light work, and she had no transferable skills. Tr. 45.
2. VE's Testimony
The ALJ instructed the VE to consider the Amazon, Lowe's, U.S. Express, and Swift Transportation jobs as jobs performed at substantial gainful activity (“SGA”) levels. Tr. 38. The VE classified those jobs as follows: warehouse worker, Dictionary of Occupational Titles (“DOT”) number 922.687-058, medium, unskilled, SVP 2; salesperson of horticulture and nursery products, DOT number 272.357-022, light but performed at medium, semi-skilled, SVP 4; a composite job of dispatcher, DOT 249.167-014, sedentary performed at light, skilled, SVP 5 and operations manager, DOT 184.167-118, light performed at light, skilled, SVP of 6; and operations manager performed singularly, DOT 184.167-118, light, skilled, SVP of 6. Tr. 38-39.
The ALJ asked the VE to assume a hypothetical individual of Plaintiff's age, education, and past jobs with the following limitations: limited to light exertional level; left lower extremity push/pull is limited to occasional; all posturals frequent; no ladders, ropes, scaffolds, or hazards; left handling limited to frequent; and left upper extremity handling limited to frequent. Tr. 39.
Plaintiff confirmed that she is right-handed. Id. The ALJ asked the VE if the hypothetical individual could perform Plaintiff's past work, and the VE responded “she could perform the operations manager, the composite dispatcher and operations manager, and she could perform the salesperson, horticultural and nursery products as classified, not as performed.” Id.
After questioning Plaintiff regarding her impairments, the ALJ asked the VE if her answer would change if the person was limited to sedentary work with the same limitations. Tr. 45. The VE testified that at “the sedentary level of exertion she could not perform any of her past work as performed. She could only perform the dispatcher in its singular nature as classified.” Id.
Based on Dr. Early's conclusions, Plaintiff's counsel asked the VE to assume a person of the same age, education, and work experience as in the ALJ's first hypothetical who is limited to sedentary work with the following limitations: she flexes forward 10 degrees when walking; has trouble changing positions from seated to standing; and, due to a combination of pain and physical problems, she would have interruptions to concentration on an occasional basis or one-third of the workday. Tr. 45-46. Noting that would render her off-task behavior at greater than 10% or six minutes an hour, the VE stated “that would be preclusive of maintaining competitive employment.” Tr. 46.
Based on Dr. Weaver's statement, counsel asked the VE to assume a person of the same age, education, and work experience limited to light work “but she would have to take two to three 30-minute unscheduled breaks from working - during the working portion of the workday.” Tr. 46-47. The VE confirmed that would result in no competitive employment. Tr. 47.
The ALJ asked the VE to assume a hypothetical individual of Plaintiff's age, education, and past jobs with the following limitations: limited to the light exertional level; all posturals occasional; no ladders, ropes, scaffolds, or hazards; no extreme temperatures, wetness, humidity, or vibration; no concentrated exposure to dust, fumes, or other pulmonary irritants; the left lower extremity push/pull is occasional; and handling is frequent. Tr. 47. The ALJ asked if the hypothetical individual could perform Plaintiff's past work and the VE testified that she could perform the jobs of operations manager and the composite job of operations manager and dispatcher. Tr. 48.
The ALJ asked the VE if her answer would change with the additional limitation of no contact with the public. Tr. 48. The VE stated her answer would not change because in those jobs the individual is not working with the public; she is working with coworkers. Id. The ALJ asked if her answer would change if she reduced the exertional level to sedentary with the same limitations. Tr. 48. The VE testified that “she could only perform the dispatcher as classified.” Id.
In follow-up, Plaintiff's counsel asked the VE to assume the same limitations as in the last hypothetical with the additional limitation of no contact with coworkers or limited contact with coworkers. Tr. 48. The VE stated that would result in no work. Id. The VE confirmed that would be the same for the light exertional level. Tr. 49. II. Discussion
A. The ALJ's Findings
In her July 8, 2019 decision, the ALJ made the following findings of fact and conclusions of law:
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2021.
2. The claimant has not engaged in substantial gainful activity since June 8, 2016, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: degenerative disc disease of the lumbar spine and degenerative changes of the cervical spine (20 CFR 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 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 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 light work as defined in 20 CFR 404.1567(b) and 416.967(b), lifting 20 pounds occasionally and 10 pounds frequently. The claimant is limited to sitting 6 hours during an 8-hour workday and standing/walking 6 hours during an 8-hour workday. She can perform only occasional postural activity, and cannot climb ladders, ropes or scaffolding. The claimant's work environment must be free of hazards, temperature extremes, wetness, humidity or vibration, and she can have no concentrated exposure to dusts, fume[s] or other pulmonary irritants. The claimant is limited to frequent handling, and is restricted to no more than occasional pushing/pulling with the left lower extremity.
6. The claimant is capable of performing past relevant work in a composite job as a dispatcher/operations manager, as actually and generally performed; and a salesperson in horticulture/nursery as generally performed. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565 and 416.965).
7. The claimant has not been under a disability, as defined in the Social Security Act, from June 8, 2016, through the date of this decision (20 CFR 404.1520(f) and 416.920(f)).Tr. 15, 18, 21-22.
B. Legal Framework
1. The Commissioner's Determination-of-Disability Process The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are “under a disability, ” defined as:
inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not less than 12 months[.]42 U.S.C. § 423(d)(1)(A); see also 42 U.S.C. § 1382c(a)(3)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (discussing considerations and noting “need for efficiency” in considering disability claims). An examiner must consider the following: (1) whether the claimant is working; (2) whether the claimant has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing past relevant work (“PRW”); and (5) whether the impairment prevents the claimant from performing specific jobs that exist in significant numbers in the national economy. See 20 C.F.R. § 404.1520, § 416.920. These considerations are sometimes referred to as the “five steps” of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) and § 416.920(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).
The Commissioner's regulations include an extensive list of impairments (“the Listings” or “Listed impairments”) the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. § 404.1525. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, she will be found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii); § 416.920(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that his impairments match several specific criteria or be “at least equal in severity and duration to [those] criteria.” 20 C.F.R. § 404.1526; § 416.926; Sullivan v. Zebley, 493 U.S. 521, 530-31 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
A claimant is not disabled within the meaning of the Act if he/she can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. § 404.1520(a), (b); § 416.920(a), (b); Social Security Ruling (“SSR”) 82-62 (1982). The claimant bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the regional economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that she is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen, 482 U.S. at 146. n.5 (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of “any final decision of the Commissioner of Social Security made after a hearing to which he was a party. . . .” 42 U.S.C. § 405(g). The scope of that federal court review is narrowly tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See id., Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls v. Barnhart, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to “try [these cases] de novo, or resolve mere conflicts in the evidence.” Vitek v. Finch, 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. “Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005); see also Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (explaining that, “whatever the meaning of ‘substantial' in other contexts, the threshold for such evidentiary sufficiency is not high, ” as it means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion”). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings, and that his conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed “even should the court disagree with such decision.” Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
III. Analysis
Plaintiff argues that (1) the ALJ improperly evaluated the opinion evidence, and (2) the ALJ improperly evaluated the demands of her PRW. Pl.'s Br. 2, ECF No. 12. The Commissioner argues that the ALJ properly evaluated the medical opinion evidence under the regulations, and substantial evidence supports the ALJ's finding that Plaintiff could perform her PRW. Def.'s Br. 12, 15; ECF No. 13.
A. The ALJ's Consideration of Medical Opinions
1. Dr. Paul Weaver
The ALJ noted that in “January 2017, the claimant presented to Paul D. Weaver, M.D., her primary care provider, reporting she had lost her job.” Tr. 19. Plaintiff noted that she was having financial issues and had decided to apply for disability. “The claimant complained of radiating back pain, resulting in a diagnosis of sciatica with prescribed pain medications (Exhibit 10F/2).” Id.
Regarding Plaintiff's mental health issues, the ALJ noted that Dr. Weaver completed a mental health questionnaire on June 7, 2017, and “assessed the claimant's depression as no more than ‘mild' in severity, further noting the claimant was taking no prescribed psychotropic medications.” Tr. 16. The ALJ stated:
Mental status examination from Dr. Weaver reflects that, despite a somewhat depressed mood, the claimant maintains good attention, good concentration, appropriate thought content, intact thought processes and adequate memory. In assessing mental health functioning, Dr. Weaver opined the claimant has adequate abilities in completing activities of daily living, and adequate abilities in completing even complex tasks. Dr. Weaver further opined the claimant has a good ability in relating to others and a good ability in completing simple, routine and complex tasks (Exhibit 6F/2/3).Id. The ALJ gave great weight to this opinion finding it to be “consistent with and supported by the evidence of record as a whole.” Id.
On August 31, 2018, internist and Plaintiff's primary care provider, Dr. Weaver, submitted a statement regarding Plaintiff's diagnosed impairments and her functionality to which he had opined on June 7, 2017. Tr. 425. He diagnosed Plaintiff with generalized anxiety disorder, chronic bilateral low back pain with lumbar radiculopathy, and mild depression. Id. Dr. Weaver stated that when he had earlier opined that Plaintiff had adequate ability to complete basic activities of daily living and complete complex tasks, that Plaintiff “was in a lot of pain and had difficulty performing routine tasks.” Id. Dr. Weaver stated that Plaintiff “would be unable to engage in anything more exertionally demanding than lifting 10 pounds at a time and occasionally lifting or carrying articles such as docket files, ledgers, and small tools as well as sitting most of the workday with occasional standing and walking.” Id. He noted that Plaintiff would need to take “at least 2-to-3 30-minute unscheduled breaks from working and would need to sit at least an hour per day during the working portion of the workday.” Id. He also opined that if Plaintiff had to be “on her feet” for most of the workday, she would have problems with attention and concentration “sufficient to interrupt tasks more than 10%” of the workday. Id. Dr. Weaver opined that these conditions and limitations have existed since September 2014 and he last saw Plaintiff on April 3, 2018 “because she lost her insurance.” Id.
Counsel for Plaintiff disclosed that “he and his employees and individuals contracting with him interviewed Paul Weaver, MD and memorialized said interview in the drafted statement submitted.” Tr. 424.
The ALJ considered Dr. Weaver's August 2018 opinion and found that “such excessive limitations are unsupported by the evidence of record as a whole.” Tr. 20. The ALJ noted that Dr. Weaver's treatment records reflected “no significantly adverse mental health findings, and, in April 2018, only 3 months prior to the completion of this assessment, the claimant reported she was riding a bicycle for exercise (Exhibit 10F/5).” Id. The ALJ did not give significant weight to Dr. Weaver's assessment because it was “unsubstantiated by his own clinical findings, and inconsistent with the additional evidence in the claimant's case file.” Id.
Before discussing the August 2018 opinion, the ALJ noted that after Plaintiff's consultative examination with Dr. Early in July 2017, Plaintiff returned to Dr. Weaver and “her pain was assessed as ‘stable.'” Tr. 20. The ALJ further noted that “[t]reatment records from August 2017 reflect contract violations with prescribed narcotic medications, with Dr. Weaver noting the claimant was taking Tramadol and marijuana from her daughter. This violation of the claimant's contract for controlled substances was discussed, and with Dr. Weaver considering the possibility to ‘stop writing controlled Rx's' (Exhibit 10F/2/3).” Id.
2. Dr. Gordon Early
On July 5, 2017, Dr. Early performed a consultative examination of Plaintiff who reported that she was applying for disability because of low back pain, neck pain, and left wrist pain. Tr. 399. Dr. Early found Plaintiff to be “moderately to severely depressed.” Tr. 400. In his musculoskeletal examination, Dr. Early noted that Plaintiff's “gait is very stiff and she forward flexes 10 degrees when she walks. She is just stiff and has a hard time changing positions.” Id. Dr. Early made the following assessment:
1. Low back pain with left sciatica and weakness in the left foot. This woman is very stiff and she would have a hard time doing many different jobs. She gave me a good exam today. She is a poor candidate for heavy or medium work. Many light jobs would not be suitable.
2. Neck pain with rather unremarkable x-rays. She should avoid prolonged upper gaze and frequent use of hands above shoulders.
3. Left wrist pain most likely is resolving De Quervain's tendonitis. This does not majorly affect her employability.Tr. 400-01. Dr. Early x-rayed Plaintiffs cervical spine and left wrist. The cervical spine imaging results indicated no evidence of fracture, no significant osteoarthritic change, and disc space narrowing at ¶ 4C5. Tr. 402. The wrist imaging revealed mild arthritis in the left thumb and no fractures. Id. The impression was “Normal cervical and [left] wrist films.” Id. Dr. Early also completed a Range of Motion Chart For Orthopedic Exam that indicated normal range of motion in all areas except for lateral flexion of the cervical spine, normal grip strength, and normal strength in Plaintiff's upper and lower extremities. Tr. 403-04.
De Quervain's tendinosis occurs when the tendons around the base of the thumb are irritated or constricted. The word “tendinosis” refers to a swelling of the tendons. Swelling of the tendons, and the tendon sheath, can cause pain and tenderness along the thumb side of the wrist. This is particularly noticeable when forming a fist, grasping or gripping something, or when turning the wrist. See https://orthoinfo.aaos.org/en/diseases--conditions/de-quervains-tendinosis/ (last visited May 10, 2021). In his examination of Plaintiff, Dr. Early noted that she tested negative for De Quervain's but he was “wondering if that is what she has had over the last year.” Tr. 399.
The ALJ stated that he considered Dr. Early's opinion, but “clinical findings from this examination fail to support such limitations.” Tr. 19. The ALJ noted:
Indeed, while examination of the cervical spine demonstrated some decrease in lateral flexion, updated x-rays of the cervical spine during this examination were “normal” (Exhibit 8F/5). Physical examination further reflected normal range of motion of the lumbar spine, shoulders, wrists, knees and hips, with motor strength measured at 5/5 throughout the upper and lower extremities. Although the claimant complained of left hand pain, updated x-rays of the left wrist demonstrated no more than “mild” arthritis of the left thumb. Additionally, and despite a somewhat stiff gait, Dr. Early noted the claimant required no cane for assistance in ambulation (Exhibit 8F/2-4).Tr. 19-20. The ALJ did not afford significant weight to Dr. Early's opinion “as such proffered limitations are inconsistent with his own clinical findings, and are unsupported by the evidence of record as a whole.” Tr. 20.
3. Discussion
Because Plaintiff's claim was filed before March 27, 2017, the standards for evaluating medical opinion evidence as set forth in 20 C.F.R. §§ 404.1527, 416.927 apply. The regulations define “medical opinions” as “statements from acceptable medical sources that reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental restrictions.” 20 C.F.R. §§ 404.1527(a)(1), 416.927(a)(1). For purposes of the regulations, an “acceptable medical source” includes a licensed physician or psychologist. Id. §§ 404.1502(a), 416.902. The regulations provide that, “[r]egardless of its source, ” the ALJ “will evaluate every medical opinion” received. Id. §§ 404.1527(c), 416.927(c). Generally, the opinions of treating physicians are entitled to greater weight than other evidence and the regulations have enumerated particular factors for ALJs to consider when evaluating those opinions. See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). The regulations note that treating sources “may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations.” Id.
For claims filed on or after March 27, 2017, the regulations changed as to how adjudicators would consider and articulate medical opinions. See 20 C.F.R. § 404.1520c.
The responsibility for weighing evidence falls on the Commissioner, not the reviewing court. See Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). “An ALJ's determination as to the weight to be assigned to a medical opinion will generally not be disturbed absent some indication that the ALJ has dredged up ‘specious inconsistencies,' or has not given good reason for the weight afforded a particular opinion.” Koonce v. Apfel, 166 F.3d 1209 (4th Cir. 1999) (per curiam) (unpublished) (internal citation & quotation omitted); see also 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). In undertaking review of the ALJ's treatment of a claimant's medical sources, the court focuses its review on whether the ALJ's decision is supported by substantial evidence.
Here, the opinions Plaintiff alleges that the ALJ failed to properly weigh are the August 2018 opinions of treating physician Dr. Weaver, and the July 2017 opinions of one-time consultative examiner, Dr. Early. The ALJ did not give significant weight to either opinion. Tr. 20. “Courts ‘must defer to the ALJ's assignments of weight' to differing medical opinions ‘unless they are not supported by substantial evidence,' Jenny D. v. Saul, No. 5:18-CV-00138, 2020 WL 3108710, at *10-11 (W. D. Va. Feb. 21, 2020) (quoting Dunn v. Colvin, 607 Fed.Appx. 264, 271 (4th Cir. 2015), or they were reached by means of an improper standard or misapplication of the law.” Id. (citing Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). “Generally, the more consistent a medical opinion is with the record as a whole, the more weight [will be given] to that medical opinion.” 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4).
a. ALJ's Consideration of Dr. Weaver's Opinion
If a treating source's medical opinion is “well-supported and ‘not inconsistent' with the other substantial evidence in the case record, it must be given controlling weight[.]” SSR 96-2p; see also 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2) (providing treating source's opinion will be given controlling weight if well-supported by medically acceptable clinical and laboratory diagnostic techniques and not inconsistent with other substantial evidence in the record). As recently explained by the Fourth Circuit Court of Appeals,
Section 404.1527(c)(2) sets out two rules an ALJ must follow when evaluating a medical opinion from a treating physician. First, it establishes the “treating physician rule, ” under which the medical opinion of a treating physician is entitled to “controlling weight” if it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. § 404.1527(c)(2); see also, e.g., Arakas v. Comm'r of SSA, 983 F.3d 83, 106-07 (4th Cir. 2020) (citing Section 404.1527(c)(2) and applying the treating physician rule); Brown v. Comm'r of SSA, 873 F.3d 251, 255-56 (4th Cir. 2017) (same). Second, if a medical opinion is not entitled to controlling weight under the treating physician rule, an ALJ must consider each of the following factors to determine the weight the opinion should be afforded: (1) the “[l]ength of the treatment relationship and the frequency of examination”; (2) the “[n]ature and extent of the treatment relationship”; (3) “[s]upportability, ” i.e., the extent to which the treating physician “presents relevant evidence to support [the] medical opinion”; (4) “[c]onsistency, ” i.e., the extent to which the opinion is consistent with the evidence in the record; (5) the extent to which the treating physician is a specialist opining as to “issues related to his or her area of specialty”; and (6) any other factors raised by the parties “which tend to support or contradict the medical opinion.” 20 C.F.R. § 404.1527(c)(2)(i)-(6).Dowling v. Comm'r of Soc. Sec. Admin., 986 F.3d 377, 384-85 (4th Cir. 2021). In Dowling the Court of Appeals noted that, although “an ALJ is not required to set forth a detailed factor-by-factor analysis in order to discount a medical opinion from a treating physician, it must nonetheless be apparent from the ALJ's decision that he meaningfully considered each of the factors before deciding how much weight to give the opinion.” Dowling, 986 F.3d at 385 (emphasis in original). The rationale for the general rule affording opinions of treating physicians greater weight is “because the treating physician has necessarily examined the applicant and has a treatment relationship with the applicant.” Johnson, 434 F.3d at 654 (quoting Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001)). The ALJ has the discretion to give less weight to the opinion of a treating physician when there is “persuasive contrary evidence.” Mastro, 270 F.3d at 176. SSR 96-2p requires that an unfavorable decision contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight. In undertaking review of the ALJ's treatment of a claimant's treating sources, the court focuses its review on whether the ALJ's opinion is supported by substantial evidence.
The ALJ's decision reflects her consideration of the treating physician factors set forth in the regulations. The ALJ noted that she “considered opinion evidence in accordance with the requirements of 20 CFR 404.1527 and 416.927.” Tr. 18. The ALJ noted that Dr. Weaver was Plaintiff's primary care provider and discussed multiple treatment records, and the consistency or inconsistency of his opinions. Tr. 16, 19-20. The ALJ also considered, as an additional factor, Plaintiff's violations of prescribed narcotic medications. Tr. 20. The ALJ gave Dr. Weaver's June 2017 opinion great weight, but she declined to give significant weight to his August 2018 opinion. The ALJ's reasons for not assigning that opinion significant weight were because the limitations assessed were unsupported by the evidence of record, inconsistent with his own treatment records (citing to a treatment record three months prior to the opinion), unsubstantiated by his own clinical findings, and inconsistent with additional evidence in Plaintiff's case file. Tr. 20. Accordingly, the undersigned recommends a finding that the ALJ provided good reasons for the weight given to this opinion and it is supported by substantial evidence.
b. ALJ's Consideration of Dr. Early's Opinion
Plaintiff argues that the ALJ's findings regarding Dr. Early's opinion are unreasonable and there are objective findings in the record to support his opinion consistent with a limitation to sedentary work. Pl.'s Br. 24. The Commissioner contends that the ALJ articulated specific valid reasons for the weight she assigned to the opinions. Def.'s Br. 15.
Generally, more weight is given to medical opinions from treating sources than from reports of individual examinations such as consultative examinations. 20 C.F.R. §§ 404.1527 (c)(2) and 416.927(c)(2). Contrary to Plaintiff's argument, Dr. Early did not limit Plaintiff to sedentary work. He stated that she “is a poor candidate for heavy or medium work. Many light jobs would not be suitable.” Tr 400. This does not preclude all light jobs. Here, the ALJ's RFC assessment limited Plaintiff to light work with some postural, environmental, and handling limitations. Tr. 18. The ALJ noted that in her review, and secondary to degenerative disc disease, she found that Plaintiff had limitations as set forth in her RFC assessment, but “not to such extent as to preclude all work activity. Therefore, the opinion from Dr. Early is not afforded significant weight as such proffered limitations are inconsistent with his own clinical findings, and are unsupported by the evidence of record as a whole.” Tr. 20. In making this finding the ALJ cited to Dr. Early's clinical findings from his examination of Plaintiff. Tr. 19-20.
While the ALJ was required to evaluate the opinion, because Dr. Early was not Plaintiff's treating physician, his opinion was not entitled to controlling weight. 20 C.F.R. §§ 404.1527(c) and 416.927(c). The ALJ provided a well-reasoned explanation for the weight she gave to the opinion of this one-time examiner. Although Plaintiff disagrees with the ALJ's assessment, her findings were supported by substantial evidence and were reached through a correct application of the Social Security rules and regulations. The undersigned recommends a finding that there is substantial evidence in the record to support the weight the ALJ placed on the opinion of one-time examiner, Dr. Early.
B. The ALJ's Evaluation of PRW
Plaintiff asserts that the ALJ failed to properly evaluate the demands of her PRW. Pl.'s Br. 25. The Commissioner contends that substantial evidence supports the ALJ's finding that Plaintiff could perform her PRW. Def.'s Br. 15.
SSR 82-62 provides in pertinent part as follows:
In finding that an individual has the capacity to perform a past relevant job, the determination or decision must contain among the findings the following specific findings of fact:
1. A finding of fact as to the individual's RFC.
2. A finding of fact as to the physical and mental demands of the past job/occupation.
3. A finding of fact that the individual's RFC would permit a return to his or her past job or occupation.SSR 82-62, 1982 WL 31386, at *4.
Plaintiff argues that although the ALJ found an RFC, she erred in determining her past work and, therefore, her finding that the RFC would permit her to return to her past job was incorrect. Pl.'s Br. 26.
The ALJ determined that Plaintiff is capable of performing the “composite job as a dispatcher/operations manager, as actually and generally performed; and as a salesperson in horticulture/nursery as generally performed. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity.” Tr. 21.
1. Dispatcher/Operations Manager
The ALJ determined that Plaintiff could perform the composite job of dispatcher/operations manager, but then stated that “[g]iven the established residual functional capacity with limitations to frequent handling, the claimant is unable to perform the physical demands of a dispatcher in the above referenced composite job (SSR 83-10).” Tr. 21. The ALJ stated:
However, in comparing the claimant's residual functional capacity with the physical and mental demands of an operations manager in this portion of her past relevant composite job, I find the claimant is able to perform her past relevant light work of an operations manager, as actually and generally performed.Tr. 21-22.
Plaintiff argues that because the ALJ specifically found that she could not perform the physical demands of the dispatcher portion of the composite job, she erred in determining Plaintiff could perform that work. Pl.'s Br. 27. The Commissioner contends that “[a]lthough the ALJ contradicted herself in the discussion by stating that Plaintiff was unable to perform the physical demands of a dispatcher due to the limitation to frequent handling (Tr. 21), her finding that Plaintiff could perform her past relevant composite job as a dispatcher/operations manager as actually and generally performed is supported by the DOT and should be affirmed.” Def.'s Br. 17-18.
If it takes multiple DOT occupations to describe a claimant's PRW, that job may be considered a composite job. See Social Security Administration, Program Operations Manual System (“POMS”), DI 25005.020, Past Relevant Work (PRW) as the Claimant Performed It (effective April 13, 2017), available at https://secure.ssa.gov/poms.nsf/lnx/0425005020. According to the POMS, when comparing a claimant's RFC to a composite job as the claimant performed it, the ALJ “must find the claimant capable of performing the composite job only if he or she can perform all parts of the job.” Id. (emphasis added). This POMS section also indicates that a “composite job will not have a DOT counterpart, so do not evaluate it at the part of step 4 considering work ‘as generally performed in the national economy.'” Id.
Here, because the ALJ determined that Plaintiff was incapable of performing the dispatcher portion of the composite job, the ALJ erred in finding that she could perform the dispatcher/operations manager job as actually and generally performed. However, the ALJ also identified another of Plaintiff's past jobs that she can perform.
2. Horticulture/Nursery Salesperson
The ALJ determined that Plaintiff could perform work as a salesperson in horticulture/nursery as generally performed. Tr. 21. The ALJ noted:
The vocational expert testified the claimant has additional past relevant work as a salesperson of horticulture/nursery products (DOT#272.357-022), which is classified as a semi-skilled labor (SVP 4), at light level of physical exertion (medium as performed by the claimant). In comparing the claimant's residual functional capacity with the physical and mental demands of this past relevant work as generally performed.Tr. 22.
Citing to her Work History Report, Plaintiff argues that her “past work as a horticulture/nursery products worker exceeded her RFC.” Pl.'s Br. 27 (citing Tr. 241). Citing to the DOT, the Commissioner contends that it “reveals that Plaintiff is not precluded from performing this light, semi-skilled work with no more than occasional postural activities, frequent handling, and no exposure to hazards, as generally performed.” Def.'s Br. 18 (citing DICOT 272.357-022, 1991 WL 672462).
Here, the ALJ, with input from a VE, determined Plaintiff could perform this job as generally performed in the national economy. At the administrative hearing the ALJ asked the VE to consider Plaintiff's job at Lowe's as one of four jobs performed at the SGA level. Tr. 38. As noted above, the VE described the job as “Salesperson, horticulture and nursery products, 272.357-22 022, classified at light, performed at medium, semi-skilled, SVP 4.” Id. “The Commissioner may employ the services of a VE at step four of the sequential evaluation process to help determine whether a claimant can perform his past relevant work.” Cabbagestalk v. Astrue, No. CIV.A. 3:09-1693, 2010 WL 3270972, at *10 (D.S.C. July 28, 2010), report and recommendation adopted, No. CIV.A. 3:09-1693-MBS, 2010 WL 3270046 (D.S.C. Aug. 18, 2010) (finding the ALJ met the second requirement of SSR 82-62 by asking the VE about the demands of the claimants PRW and the VE stating the position was light and unskilled and further provided a DOT number as a descriptor); Turman v. Astrue, No. 3:09CV468-FDW-DSC, 2010 WL 4683921, at *5 (W.D. N.C. July 8, 2010), report and recommendation adopted, No. 3:09-CV-468-FDW-DSC, 2010 WL 4683918 (W.D. N.C. Nov. 10, 2010) (holding that the VE's testimony that the claimant's past work was unskilled and performed at the medium exertional level “sufficiently details the physical and mental requirement of Plaintiff's past relevant work in a manner consistent with the requirements of SSR 82-62.”).
“There is no requirement that a claimant must be able to perform all past relevant work; so long as she can continue to perform at least one job, she will be found to be not disabled. 20 C.F.R. §§ 404.1520(f) (stating that an individual who can perform past relevant work will be found not disabled); 404.1560(b)(2)-(3) (stating that if a claimant can meet the demands of past relevant work, whether as it is generally performed in the national economy or as the claimant actually performed it, then she will be found not disabled).” Mixon v. Saul, No. CV 9:19-195-JMC-BM, 2020 WL 2814401, at *4 (D.S.C. Jan. 22, 2020), report and recommendation adopted, No. 9:19-CV-00195-JMC, 2020 WL 1466004 (D.S.C. Mar. 26, 2020) (quoting Carl v. Colvin, No. 13-CV-03146-KLM, 2015 WL 428990, at *6 (D. Colo. Jan. 29, 2015)). Accordingly, even though the ALJ erred in his step four analysis regarding Plaintiff's ability to perform the composite job of dispatcher/operations manager, that does not require a reversal of the decision, as Plaintiff can still perform her past relevant work as a horticulture/nursery salesperson. See Mickles v. Shalala, 29 F.3d 918, 921 (4th Cir. 1994) (providing that an error is harmless if the ALJ would have reached the same result notwithstanding the error).
III. Conclusion and Recommendation
The court's function is not to weigh evidence or substitute its judgment for that of the Commissioner but is to determine whether the ALJ's weighing of the evidence is supported by substantial evidence in the record. See generally Hays v. Sullivan, 907 F.2d at 1456 (noting judicial review limited to determining whether findings supported by substantial evidence and whether correct law was applied). Based on the foregoing, the undersigned recommends that the Commissioner's decision be affirmed.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”