Opinion
Civil Action 8:19-cv-00764-RBH-JDA
04-13-2020
Wanda Smith, Plaintiff, v. Commissioner Social Security, Administration, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and Title 28 U.S.C. § 636(b)(1)(B). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of a final decision of the Commissioner of Social Security ("the Commissioner"), denying Plaintiff's claim for disability insurance benefits ("DIB"). For the reasons set forth below, it is recommended that the decision of the Commissioner be affirmed.
A Report and Recommendation is being filed in this case, in which one or both parties declined to consent to disposition by a magistrate judge.
PROCEDURAL HISTORY
In 2011, Plaintiff filed an application for DIB, alleging disability beginning August 1, 2008. [R. 145-51.] The claim was denied initially and on reconsideration by the Social Security Administration ("the Administration"). [R. 51-65, 88-89.] Plaintiff requested a hearing before an administrative law judge ("ALJ"), and on September 26, 2013, ALJ Todd D. Jacobson conducted a de novo hearing on Plaintiff's claims. [R. 28-50.]
On November 14, 2013, the ALJ issued his decision, finding Plaintiff not disabled under the Social Security Act ("the Act"). [R. 14-24.] Plaintiff filed a request for review of the ALJ's decision with the Appeals Council, which denied review on January 7, 2015. [R. 2-7.] Plaintiff appealed, and on June 1, 2016, the United States District Court for the District of South Carolina reversed the ALJ's decision and remanded the case under sentence four of 42 U.S.C. § 405 to the Commissioner for further proceedings. [R. 662-85.] The Court directed the ALJ to consider Plaintiff's moderate limitations in concentration, persistence, and pace in formulating the residual functional capacity as required under Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015). [R. 662-85.] Accordingly, on June 25, 2016, the Appeals Council vacated the November 14, 2013, decision and remanded the case to an ALJ for further proceedings consistent with the Court's Order. [R. 686-89.]
On November 16, 2017, Plaintiff appeared and testified in a new hearing before the ALJ. [R. 624-52.] The ALJ issued a decision on March 22, 2018, again finding Plaintiff not disabled under the Act. [R. 603-16.] At Step 1, the ALJ found Plaintiff last met the Act's insured status requirements on December 31, 2012, and had not engaged in substantial gainful activity since August 1, 2008, the alleged onset date. [R. 606, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had the following severe impairments: lumbar degenerative disc disease, chronic obstructive pulmonary disease, obesity, a mood disorder, and an anxiety disorder. [R. 606, Finding 3.] The ALJ also found Plaintiff had complained of pain and swelling in her knee but that her knee pain was isolated to March and April 2012. [R. 607.] He also found that Plaintiff had been hospitalized for diabetes mellitus in May 2013 but that there was no evidence that diabetes was a medically determinable impairment prior to December 31, 2012, Plaintiff's date last insured. [Id.] At Step 3, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 607, Finding 4.]
The five-step sequential analysis used to evaluate disability claims is discussed in the Applicable Law section, infra.
Before addressing Step 4, concerning Plaintiff's ability to perform her past relevant work, the ALJ found Plaintiff retained the following residual functional capacity ("RFC"):
After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except she was limited to never climbing ladders, scaffolds and ropes; frequent climbing of ladders and ramps, balancing, stooping, crouching, kneeling and crawling; frequent handling and fingering bilaterally; no concentrated exposure to hazards such as moving machinery or unprotected heights, dust, fumes or gases; performing simple, routine and repetitive tasks for 2-hour intervals throughout the day for the duration of the workday, occasional contact with the public, supervisors and co-workers and to non-production, non-assembly line, non-quota work with no need for complex instructions or decision-making.[R. 609, Finding 5.] Based on this RFC, the ALJ determined at Step 4 that Plaintiff was capable of performing her past relevant work as a punching-machine operator. [R. 614, Finding 6]. Alternatively, upon considering Plaintiff's age, education, work experience, RFC, and the testimony of the vocational expert ("VE"), the ALJ found that there were other jobs that existed in significant numbers in the national economy that Plaintiff could perform. [R. 614.] Thus, the ALJ found that Plaintiff had not been under a disability as defined by the Act from August 1, 2008, the alleged onset date, through December 31, 2012, the date last insured. [R. 616, Finding 7.]
Plaintiff requested Appeals Council review of the ALJ's decision and the Appeals Council declined review. [R. 595-99.] Plaintiff filed the instant request for judicial review on March 13, 2019. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff argues that the ALJ's decision is not supported by substantial evidence and contains multiple legal errors warranting reversal and remand. [Docs. 12; 14.] Specifically, Plaintiff contends the ALJ improperly relied on the VE's testimony without explaining an apparent conflict between the VE's testimony and the Dictionary of Occupational Titles ("DOT"). [Docs. 12 at 17-20; 14 at 1-9.] Plaintiff also maintains that the ALJ improperly rejected the opinion of Plaintiff's treating and examining provider, Michelle Nobles, that Plaintiff exhibited certain work-preclusive limitations. [Docs. 12 at 20-22; 14 at 9-12.]
The Commissioner argues the ALJ's decision should be affirmed because there is substantial evidence that Plaintiff was not disabled within the meaning of the Act. [Doc. 13.] Specifically, the Commissioner contends the ALJ reasonably relied on the VE's testimony where there was no apparent conflict between that testimony and the DOT. [Id. at 11-18.] The Commissioner also maintains the ALJ's evaluation of Nobles's medical opinion is supported by substantial evidence. [Id. at 18-20.]
STANDARD OF REVIEW
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla—i.e., the evidence must do more than merely create a suspicion of the existence of a fact and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) (citing Woolridge v. Celebrezze, 214 F. Supp. 686, 687 (S.D.W. Va. 1963)) ("Substantial evidence, it has been held, is evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is 'substantial evidence.'").
Where conflicting evidence "allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ)," not on the reviewing court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991) (stating that where the Commissioner's decision is supported by substantial evidence, the court will affirm, even if the reviewer would have reached a contrary result as finder of fact and even if the reviewer finds that the evidence preponderates against the Commissioner's decision). Thus, it is not within the province of a reviewing court to determine the weight of the evidence, nor is it the court's function to substitute its judgment for that of the Commissioner so long as the decision is supported by substantial evidence. See Bird v. Comm'r, 699 F.3d 337, 340 (4th Cir. 2012); Laws, 368 F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).
The reviewing court will reverse the Commissioner's decision on plenary review, however, if the decision applies incorrect law or fails to provide the court with sufficient reasoning to determine that the Commissioner properly applied the law. Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980); see also Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner's decision "is in clear disregard of the overwhelming weight of the evidence, Congress has empowered the courts to modify or reverse the [Commissioner's] decision 'with or without remanding the cause for a rehearing.'" Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971) (quoting 42 U.S.C. § 405(g)). Remand is unnecessary where "the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no purpose." Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974).
The court may remand a case to the Commissioner for a rehearing under sentence four or sentence six of 42 U.S.C. § 405(g). Sargent v. Sullivan, 941 F.2d 1207 (4th Cir. 1991) (unpublished table decision). To remand under sentence four, the reviewing court must find either that the Commissioner's decision is not supported by substantial evidence or that the Commissioner incorrectly applied the law relevant to the disability claim. See, e.g., Jackson v. Chater, 99 F.3d 1086, 1090-91 (11th Cir. 1996) (holding remand was appropriate where the ALJ failed to develop a full and fair record of the claimant's residual functional capacity); Brenem v. Harris, 621 F.2d 688, 690-91 (5th Cir. 1980) (holding remand was appropriate where record was insufficient to affirm but was also insufficient for court to find the claimant disabled). Where the court cannot discern the basis for the Commissioner's decision, a remand under sentence four is usually the proper course to allow the Commissioner to explain the basis for the decision or for additional investigation. See Radford v. Comm'r, 734 F.3d 288, 295 (4th Cir. 2013) (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985); see also Smith v. Heckler, 782 F.2d 1176, 1181-82 (4th Cir. 1986) (remanding case where decision of ALJ contained "a gap in its reasoning" because ALJ did not say he was discounting testimony or why); Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (remanding case where neither the ALJ nor the Appeals Council indicated the weight given to relevant evidence). On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. See Smith, 782 F.2d at 1182 ("The [Commissioner] and the claimant may produce further evidence on remand."). After a remand under sentence four, the court enters a final and immediately appealable judgment and then loses jurisdiction. Sargent, 941 F.2d 1207 (citing Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991)).
In contrast, sentence six provides:
The court may . . . at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding . . . .42 U.S.C. § 405(g). A reviewing court may remand a case to the Commissioner on the basis of new evidence only if four prerequisites are met: (1) the evidence is relevant to the determination of disability at the time the application was first filed; (2) the evidence is material to the extent that the Commissioner's decision might reasonably have been different had the new evidence been before him; (3) there is good cause for the claimant's failure to submit the evidence when the claim was before the Commissioner; and (4) the claimant made at least a general showing of the nature of the new evidence to the reviewing court. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985) (citing 42 U.S.C. § 405(g); Mitchell v. Schweiker, 699 F.2d 185, 188 (4th Cir. 1983); Sims v. Harris, 631 F.2d 26, 28 (4th Cir. 1980); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)), superseded by amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec'y, Dep't of Health & Human Servs., 925 F.2d 769, 774 (4th Cir. 1991). With remand under sentence six, the parties must return to the court after remand to file modified findings of fact. Melkonyan, 501 U.S. at 98. The reviewing court retains jurisdiction pending remand and does not enter a final judgment until after the completion of remand proceedings. See Allen v. Chater, 67 F.3d 293 (4th Cir. 1995) (unpublished table decision) (holding that an order remanding a claim for Social Security benefits pursuant to sentence six of 42 U.S.C. § 405(g) is not a final order).
Though the court in Wilkins indicated in a parenthetical that the four-part test set forth in Borders had been superseded by an amendment to 42 U.S.C. § 405(g), courts in the Fourth Circuit have continued to cite the requirements outlined in Borders when evaluating a claim for remand based on new evidence. See, e.g., Brooks v. Astrue, No. 6:10-cv-152, 2010 WL 5478648, at *8 (D.S.C. Nov. 23, 2010); Ashton v. Astrue, No. TMD 09-1107, 2010 WL 3199345, at *3 (D. Md. Aug. 12, 2010); Washington v. Comm'r of Soc. Sec., No. 2:08-cv-93, 2009 WL 86737, at *5 (E.D. Va. Jan. 13, 2009); Brock v. Sec'y of Health & Human Servs., 807 F. Supp. 1248, 1250 n.3 (S.D.W. Va. 1992). Further, the Supreme Court of the United States has not suggested Borders' construction of § 405(g) is incorrect. See Sullivan v. Finkelstein, 496 U.S. 617, 626 n.6 (1990). Accordingly, the Court will apply the more stringent Borders inquiry.
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a disability. 42 U.S.C. § 423(a). "Disability" is defined as:
the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 consecutive months.Id. § 423(d)(1)(A).
I. The Five Step Evaluation
To facilitate uniform and efficient processing of disability claims, federal regulations have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (noting a "need for efficiency" in considering disability claims). The ALJ must consider whether (1) the claimant is engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the impairment meets or equals an impairment included in the Administration's Official Listings of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents the claimant from performing past relevant work; and (5) the impairment prevents the claimant from having substantial gainful employment. 20 C.F.R. § 404.1520. Through the fourth step, the burden of production and proof is on the claimant. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). The claimant must prove disability on or before the last day of her insured status to receive disability benefits. Everett v. Sec'y of Health, Educ. & Welfare, 412 F.2d 842, 843 (4th Cir. 1969). If the inquiry reaches step five, the burden shifts to the Commissioner to produce evidence that other jobs exist in the national economy that the claimant can perform, considering the claimant's age, education, and work experience. Grant, 699 F.2d at 191. If at any step of the evaluation the ALJ can find an individual is disabled or not disabled, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
A. Substantial Gainful Activity
"Substantial gainful activity" must be both substantial—involves doing significant physical or mental activities, 20 C.F.R. § 404.1572(a)—and gainful—done for pay or profit, whether or not a profit is realized, id. § 404.1572(b). If an individual has earnings from employment or self-employment above a specific level set out in the regulations, he is generally presumed to be able to engage in substantial gainful activity. Id. §§ 404.1574-.1575.
B. Severe Impairment
An impairment is "severe" if it significantly limits an individual's ability to perform basic work activities. See id. § 404.1521. When determining whether a claimant's physical and mental impairments are sufficiently severe, the ALJ must consider the combined effect of all of the claimant's impairments. 42 U.S.C. § 423(d)(2)(B). The ALJ must evaluate a disability claimant as a whole person and not in the abstract, having several hypothetical and isolated illnesses. Walker v. Bowen, 889 F.2d 47, 49-50 (4th Cir. 1989) (stating that, when evaluating the effect of a number of impairments on a disability claimant, "the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them"). Accordingly, the ALJ must make specific and well-articulated findings as to the effect of a combination of impairments when determining whether an individual is disabled. Id. at 50 ("As a corollary to this rule, the ALJ must adequately explain his or her evaluation of the combined effects of the impairments."). If the ALJ finds a combination of impairments to be severe, "the combined impact of the impairments shall be considered throughout the disability determination process." 42 U.S.C. § 423(d)(2)(B).
C. Meets or Equals an Impairment Listed in the Listings of Impairments
If a claimant's impairment or combination of impairments meets or medically equals the criteria of a listing found at 20 C.F.R. Pt. 404, Subpt. P, App.1 and meets the duration requirement found at 20 C.F.R. § 404.1509, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience. 20 C.F.R. § 404.1520(d).
D. Past Relevant Work
The assessment of a claimant's ability to perform past relevant work "reflect[s] the statute's focus on the functional capacity retained by the claimant." Pass v. Chater, 65 F.3d 1200, 1204 (4th Cir. 1995). At this step of the evaluation, the ALJ compares the claimant's residual functional capacity with the physical and mental demands of the kind of work he has done in the past to determine whether the claimant has the residual functional capacity to do his past work. 20 C.F.R. § 404.1560(b).
Residual functional capacity is "the most [a claimant] can still do despite [his] limitations." 20 C.F.R. § 404.1545(a).
E. Other Work
As previously stated, once the ALJ finds that a claimant cannot return to her prior work, the burden of proof shifts to the Commissioner to establish that the claimant could perform other work that exists in the national economy. See Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992); 20 C.F.R. § 404.1520(f)-(g). To meet this burden, the Commissioner may sometimes rely exclusively on the Medical-Vocational Guidelines (the "grids"). Exclusive reliance on the "grids" is appropriate where the claimant suffers primarily from an exertional impairment, without significant nonexertional factors. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e); see also Gory v. Schweiker, 712 F.2d 929, 930-31 (4th Cir. 1983) (stating that exclusive reliance on the grids is appropriate in cases involving exertional limitations). When a claimant suffers from both exertional and nonexertional limitations, the grids may serve only as guidelines. Gory, 712 F.2d at 931. In such a case, the Commissioner must use a vocational expert to establish the claimant's ability to perform other work. 20 C.F.R. § 404.1569a; see Walker, 889 F.2d at 49-50 ("Because we have found that the grids cannot be relied upon to show conclusively that claimant is not disabled, when the case is remanded it will be incumbent upon the [Commissioner] to prove by expert vocational testimony that despite the combination of exertional and nonexertional impairments, the claimant retains the ability to perform specific jobs which exist in the national economy."). The purpose of using a vocational expert is "to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform." Walker, 889 F.2d at 50. For the vocational expert's testimony to be relevant, "it must be based upon a consideration of all other evidence in the record, . . . and it must be in response to proper hypothetical questions which fairly set out all of claimant's impairments." Id. (citations omitted).
An exertional limitation is one that affects the claimant's ability to meet the strength requirements of jobs. 20 C.F.R. § 404.1569a(a). A nonexertional limitation is one that affects the ability to meet the demands of the job other than the strength demands. Id. Examples of nonexertional limitations include but are not limited to difficulty functioning because of being nervous, anxious, or depressed; difficulty maintaining attention or concentrating; difficulty understanding or remembering detailed instructions; difficulty seeing or hearing. § 404.1569a(c)(1).
II. Developing the Record
The ALJ has a duty to fully and fairly develop the record. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). The ALJ is required to inquire fully into each relevant issue. Snyder, 307 F.2d at 520. The performance of this duty is particularly important when a claimant appears without counsel. Marsh v. Harris, 632 F.2d 296, 299 (4th Cir. 1980). In such circumstances, "the ALJ should scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts, . . . being especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited." Id. (internal quotations and citations omitted).
III. Treating Physicians
If a treating physician's opinion on the nature and severity of a claimant's impairments is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" in the record, the ALJ must give it controlling weight. 20 C.F.R. § 404.1527(c)(2); see Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). The ALJ may discount a treating physician's opinion if it is unsupported or inconsistent with other evidence, i.e., when the treating physician's opinion does not warrant controlling weight, Craig, 76 F.3d at 590, but the ALJ must nevertheless assign a weight to the medical opinion based on the 1) length of the treatment relationship and the frequency of examination; 2) nature and extent of the treatment relationship; 3) supportability of the opinion; 4) consistency of the opinion with the record a whole; 5) specialization of the physician; and 6) other factors which tend to support or contradict the opinion, 20 C.F.R. § 404.1527©. Similarly, where a treating physician has merely made conclusory statements, the ALJ may afford the opinion such weight as is supported by clinical or laboratory findings and other consistent evidence of a claimant's impairments. See Craig, 76 F.3d at 590 (holding there was sufficient evidence for the ALJ to reject the treating physician's conclusory opinion where the record contained contradictory evidence).
In any instance, a treating physician's opinion is generally entitled to more weight than a consulting physician's opinion. See Mitchell v. Schweiker, 699 F.2d 185, 187 (4th Cir. 1983) (stating that treating physician's opinion must be accorded great weight because "it reflects an expert judgment based on a continuing observation of the patient's condition for a prolonged period of time"); 20 C.F.R. § 404.1527(c)(2). An ALJ determination coming down on the side of a non-examining, non-treating physician's opinion can stand only if the medical testimony of examining and treating physicians goes both ways. Smith v. Schweiker, 795 F.2d 343, 346 (4th Cir. 1986). Further, the ALJ is required to review all of the medical findings and other evidence that support a medical source's statement that a claimant is disabled. 20 C.F.R. § 404.1527(d). However, the ALJ is responsible for making the ultimate determination about whether a claimant meets the statutory definition of disability. Id.
IV. Medical Tests and Examinations
The ALJ is required to order additional medical tests and exams only when a claimant's medical sources do not give sufficient medical evidence about an impairment to determine whether the claimant is disabled. 20 C.F.R. § 404.1517; see also Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986). The regulations are clear: a consultative examination is not required when there is sufficient medical evidence to make a determination on a claimant's disability. 20 C.F.R. § 404.1517. Under the regulations, however, the ALJ may determine that a consultative examination or other medical tests are necessary. Id.
V. Pain
Congress has determined that a claimant will not be considered disabled unless he furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing the existence of a medical impairment that could reasonably be expected to produce the pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). Social Security Ruling ("SSR") 16-3p provides, "[i]n considering the intensity, persistence, and limiting effects of an individual's symptoms, we examine the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record." Social Security Ruling 16-3p Titles II and XVI: Evaluation of Symptoms In Disability Claims, 82 Fed. Reg. 49,462, 49,464 (Oct. 25, 2017); see also 20 C.F.R. § 404.1529(c)(1)-(c)(2) (outlining evaluation of pain).
In evaluating claims of disabling pain, the ALJ must proceed in a two-part analysis. Morgan v. Barnhart, 142 F. App'x 716, 723 (4th Cir. 2005) (unpublished opinion); see also SSR 16-3p, 82 Fed. Reg. at 49,463. First, "the ALJ must determine whether the claimant has produced medical evidence of a 'medically determinable impairment which could reasonably be expected to produce" the alleged symptoms. Id. (quoting Craig, 76 F.3d at 594); see SSR 16-3p, 82 Fed. Reg. at 49,463. Second, the ALJ must evaluate "the intensity and persistence of an individual's symptoms such as pain and determine the extent to which an individual's symptoms limit his or her ability to perform work-related activities . . . or to function independently." SSR 16-3p, 82 Fed. Reg. at 49,464; see 20 C.F.R. § 404.1528 (noting that the ALJ must consider all of a claimant's statements about his symptoms, including pain, and determine the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence).
APPLICATION AND ANALYSIS
Conflict between the DOT and the VE's Testimony
In evaluating Plaintiff's mental impairments under the criteria of Listings 12.04 and 12.06, the ALJ found Plaintiff had moderate limitations in the following areas of functioning: understanding, remembering, or applying information; interacting with others; and concentrating, persisting, or maintaining pace. [R. 608.] The ALJ presented a hypothetical to the VE that included a restriction to simple, routine, repetitive tasks for two-hour intervals throughout the day and no more than occasional public contact. [R. 642.] The VE testified that an individual with such limitations would be capable of performing Plaintiff's past relevant work as a punching-machine operator at the unskilled, light, SVP-2 level and would also be able to perform work as a marker, advertising material distributor, or a router, all of which constituted light work at SVP-2. [R. 641-42.]
Plaintiff argues that the ALJ's decision is flawed because the DOT classifies these jobs at GED reasoning level 2 and "[t]he 4th Circuit has ruled that if a claimant is limited to simple, routine, repetitive tasks, then the DOT says he cannot perform a GED 2 job," citing to numerous cases from this Court and other jurisdictions. [Doc. 12 at 18.] Plaintiff argues that jobs at GED level 2 require a claimant to "[a]pply commonsense understanding to carry out detailed but uninvolved written or oral instructions" and to "[d]eal with problems involving a few concrete variables in or from standardized situations." [Id. (internal quotation marks omitted).] Plaintiff argues that a conclusion that a person can handle this level of detail is contrary to the assumption that the person is limited to simple, routine, repetitive tasks. [Id. at 17-20.]
After the briefing in this matter was completed, the Fourth Circuit decided the case of Lawrence v. Saul, 941 F.3d 140 (4th Cir. 2019), which resolved the previous split in the Fourth Circuit on the issue of whether there was an apparent conflict between a limitation to "simple, routine repetitive tasks of unskilled work" and a determination that a person with these limitations could perform work the DOT classifies at GED level 2. Lawrence argued that her RFC limiting her to "simple, routine repetitive tasks of unskilled work" might prevent her from performing work involving Level 2 reasoning, which requires the ability to follow "'detailed but uninvolved . . . instructions'" and perform "tasks with 'a few [] variables.'" Id. at 143 (alterations in original). The Fourth Circuit, however, disagreed, explaining its reasoning as follows:
detailed instructions are, in the main, less correlated with complexity than with length. Instructions often include many
steps, each of which is straightforward. Driving directions are a good example: they may prescribe many turns, but the turns are generally easy to make, and the route rarely changes, making the directions simple, routine, and repetitive. Further, there is no conflict between "simple" and "uninvolved" instructions, as both connote instructions that "are not complicated or intricate." Moore v. Astrue, 623 F.3d 599, 604 (8th Cir. 2010) (citing Webster's Third New Int'l Dictionary 1191, 2499 (2002)). Finally, "routine" and "repetitive" tasks may involve a few variables, just as driving directions may vary if a road is closed.Id. (footnote added). In light of Lawrence, the Court is unable to find merit in Plaintiff's allegation of error that the ALJ failed to resolve a conflict between Plaintiff's limitation to simple, routine, and repetitive tasks and work at GED 2. Accordingly, the Court declines to remand on this issue.
Thus, while there was an apparent conflict in Thomas, there is none here.
In Thomas v. Berryhill, 916 F.3d 307, 310 (4th Cir. 2019), the Fourth Circuit found an apparent conflict between the claimant's residual functional capacity, which limited her to jobs involving "short, simple instructions," and Level 2's concept of "detailed but uninvolved instructions." 916 F.3d at 313-14. In Lawrence, the Court distinguished the facts presented in Thomas by explaining that "the key difference was that Thomas was limited to 'short' instructions. 'Short' is inconsistent with 'detailed' because detail and length are highly correlated. Generally, the longer the instructions, the more detail they can include." 941 F.3d 140, 143 (4th Cir. 2019).
Treating Physician Opinion
Plaintiff argues that the ALJ's rejection of Nobles's opinion was unreasonable in light of her knowledge of Plaintiff through providers in her office, and the fact that treatment notes support the limitations assessed. [Docs. 12 at 21; 14 at 9-12.] On the other hand, the Commissioner asserts that substantial evidence supports the ALJ's assignment of little weight to Nobles's opinion. [Doc. 13 at 19.] The Court agrees with the Commissioner.
Relevant Facts
Michelle Nobles is a physician assistant with Shiland Family Medicine. [R. 551.] In April 24, 2012, treatment notes, Nobles indicates that she saw Plaintiff after Plaintiff had been involved in an automobile accident earlier that day when Plaintiff's foot slipped off the brake at a traffic light and she hit the person in front of her. [Id.] Plaintiff reported that she had had problems with her back that pre-dated the accident, that an MRI at the end of the previous year had shown a disk bulge at L4/L5, and that she had a first appointment to see Southeast Pain scheduled for May 22. [Id.] Plaintiff also suffered from osteoarthritis in her right knee. [Id.] Plaintiff reported the day of her office visit that her knee and her lower back were hurting more than they had been before the accident and that she was feeling pain in her right arm as the result of her holding on to the steering wheel during the accident. [Id.]
Nobles's treatment notes from that day indicate that Plaintiff's "[r]ange of motion in her spine [wa]s limited due to the pain"; she had "no ecchymosis, erythema or swelling"; she had "some tenderness to palpation around L4/L5 and also inferior to th[at] in her SI joints; she had "positive straight leg raise especially with the left leg"; "[h]er right knee [wa]s warm to touch" and "ha[d] quite a bit of swelling in it compared to her left knee"; and she "ha[d] a little bit of a decreased range of motion due to the pain." [Id.]
The notes state that Nobles was "sure [Plaintiff] aggravated her existing back condition." [Id.] The notes also indicate that Nobles advised Plaintiff to continue on naproxen, which she was already taking, and that she was given Zanaflex and Vicodin and given a steroid shot in her right knee. [Id.]
On September 6, 2013, more than 16 months after the date of that examination—and nine months after Plaintiff's date last insured—Nobles completed a physical-capacities evaluation form for Plaintiff. [R. 587-90.] The form indicated as follows:
• Plaintiff could sit 2-3 hours a day and stand/walk less than 1 hour;[R. 587-90.]
• Plaintiff needed the opportunity to alternate sitting and standing throughout the day;
• Plaintiff could use her hands adequately for simple grasping, pushing/pulling, fine manipulation, and repetitive motion tasks and could use her feet for repetitive movements as in operating foot controls;
• Plaintiff could never lift 21 pounds or more, could occasionally lift between 6-20 pounds, and could frequently lift up to 5 pounds;
• Plaintiff could never crawl; could occasionally climb, stoop, kneel, and crouch; could occasionally to frequently reach above shoulder level; and could frequently balance;
• Plaintiff suffered from fatigue due to depression and the fatigue was disabling;
• Plaintiff suffered from pain due to degenerative disc disease;
• Plaintiff's pain was disabling unless she was allowed frequent breaks; and
• Plaintiff's pain and medication side effects had a mild effect on her attention and concentration.
The ALJ's Evaluation of Nobles's Opinion
In the ALJ's decision, he noted that he "considered but ultimately g[ave] little weight to Ms. Nobles' opinion." [R. 613.] He explained:
Although the claimant saw other physicians in Ms. Noble's practice, Ms. Noble saw the claimant on the day of her accident in April 2012 but then did not see the claimant again until July 2013, well after her date last insured. Moreover, as already mentioned, the claimant made no further complaints of back pain after her car accident through the end of 2012. Having only seen the claimant once before her date last insured, Ms. Noble hardly qualifies as a treating physician. Moreover, treatment notes from Shiland Family Practice do not support the severe limitations she assessed. The claimant's medical records can best be described as providing routine type treatment without significant problems.[Id.]
Discussion
Social Security Ruling 96-2p requires that when an ALJ assesses medical opinions, his decision "must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and . . . 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." Id. Moreover, ALJs are instructed to apply the factors provided in 20 C.F.R. § 404.1527—including the length and nature of the source's treatment relationship with the claimant, the supportability of the opinion, the opinion's consistency with the other evidence in the record, whether the source is a specialist, and any other factors that may support or contradict the opinion—to all medical opinions. 20 C.F.R. § 404.1527(c), (f). Importantly, more weight is generally given to the opinions of examining sources than to non-examining ones. Id. Additionally, more weight is generally given to opinions of treating sources than is given to opinions of non-treating sources, such as consultative examiners. Id. And, "if a physician's opinion is not supported by clinical evidence or if it is inconsistent with other substantial evidence, it should be accorded significantly less weight." Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001) (internal quotation marks omitted).
Plaintiff contends that substantial evidence did not support the ALJ's decision to give Nobles's opinion little weight. [Docs. 12 at 21-22; 14 at 9-12.] Plaintiff first argues that the ALJ failed to properly consider the factor of the length and nature of the source's treatment relationship by focusing on the fact that Nobles did not personally see Plaintiff between April 2012 and July 2013 and not explicitly recognizing that Plaintiff saw other health care providers in the same practice during that period. [Docs. 12 at 21-22; 14 at 10.] The Court finds no error. The ALJ was clearly correct that Nobles's opinion was not that of a treating physician. Notwithstanding the fact that Plaintiff received treatment from others in the practice, Nobles herself was a physician assistant not a physician, and thus her opinion was not entitled to the deference that the opinion of a treating physician would be afforded. In her reply brief, Plaintiff concedes that Nobles's opinion was not automatically entitled to the great or controlling weight to which the opinion of a treating physician would be entitled. [Doc. 14 at 10]; see also 20 C.F.R. § 404.1527(c)(2); Nance v. Apfel, 131 F.3d 135, at *3 (4th Cir. Dec. 9, 1997) (unpublished table decision) (noting that "opinions of those other than trained medical doctors are not afforded same weight as opinions of physicians"); cf. 20 C.F.R. § 404.1502 (a)(8) (including licensed physician assistants as acceptable medical sources for impairments within their licensed scope of practice "only with respect to claims filed . . . on or after March 27, 2017"). Plaintiff nevertheless maintains that because Plaintiff was treated by other medical professionals at the same practice where Nobles worked, Nobles had knowledge of Plaintiff that she would otherwise not have had. [Id.] The Court does not doubt that Plaintiff's factual proposition may be true, but it is not in conflict with any fact found by the ALJ or with his decision not to give Nobles's opinion the deference to which the opinion of a treating physician would have been entitled.
In the end, the ALJ's primary basis for affording Nobles's opinion little weight was that the "treatment notes from Shiland Family Practice do not support the severe limitations [Nobles] assessed." [R. 613.] Plaintiff challenges this finding as well, but her argument is unpersuasive. As noted, the ALJ explained his finding by noting that Plaintiff's "medical records can best be described as providing routine type treatment without significant problems." [Id.] Plaintiff does not challenge this characterization of the medical records but nevertheless maintains that Nobles's "objective findings" from her examination of Plaintiff on the date of the accident "amply support" her opinion issued more than 16 months later. [Doc. 12 at 22.] Plaintiff's argument notwithstanding, the Court concludes the ALJ was on firm ground in reducing the weight he gave Nobles's opinion based on the fact that Plaintiff had made no complaints of back pain for more than 16 months prior to Nobles's issuance of her opinions. Furthermore, a review of treatment records from Shiland Family Medicine, dated January 8, 2012, through July 12, 2013, shows that they do not contain any opinions from treating physicians regarding limitations associated with Plaintiff's impairments. [See, e.g., R. 547-73.] The Court therefore concludes that substantial evidence supports the ALJ's decision to give Nobles's opinion little weight, and the Court declines to remand on this allegation of error.
Plaintiff also argues that "Dr. Nandurkar's opinions, although not exhibited by the ALJ because of the 5 day rule, clearly supports [Nobles's] findings." [Doc. 12 at 22; see also Doc. 14 at 10.] The medical source statement that Plaintiff refers to was submitted the day before the ALJ hearing. [R. 604, 653.] The ALJ denied the admission of that evidence on the basis that Plaintiff's counsel had represented Plaintiff for the previous two years and could have obtained the opinion earlier. [R. 640-41.] Plaintiff does not appear to argue that the ALJ erred in denying admission of the evidence, and there is no basis for any such argument in any event. See 20 C.F.R. § 404.935 (providing that ALJ may decline to consider written evidence that is not submitted at least five business days before the date of the scheduled hearing except when certain requirements are met).
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends the Commissioner's decision be AFFIRMED.
IT IS SO RECOMMENDED.
S/Jacquelyn D. Austin
United States Magistrate Judge April 13, 2020
Greenville, South Carolina