Opinion
Civil Action No. 6:17-2815-MBS-KFM
10-29-2018
Michael Edward Summey, 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 November 5, 2013. In both applications, the plaintiff alleged that he became unable to work on June 30, 2010. Both applications were denied initially and on reconsideration by the Social Security Administration. On May 9, 2014, the plaintiff requested a hearing. The administrative law judge ("ALJ") held a hearing on March 15, 2016, at which time the ALJ continued the hearing to give the plaintiff time to hire an attorney (Tr. 70-75). On July 27, 2016, the ALJ held a second hearing where the plaintiff and Carey A. Washington, Ph.D., an impartial vocational expert, appeared (Tr. 19-44). The ALJ considered the case de novo, and on September 29, 2016, found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 19-26). 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 September 14, 2017 (Tr. 1-4). 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 March 31, 2016.
(2) The claimant has not engaged in substantial gainful activity since June 30, 2010, the alleged onset date (20 C.F.R §§ 404.1571 et seq. and 416.971 et seq.).
(3) The claimant has the following severe impairments: avascular necrosis of the bilateral hips, cervical and lumbar spine degenerative disc disease, rheumatoid arthritis, obesity and COPD (20 C.F.R. §§ 404.1520(c), 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, 416.926).
(5) After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work (lift, carry, push, or pull 20 pounds occasionally and ten pounds frequently; stand or walk six hours in and eight-hour workday; and sit six hours in an eight-hour workday), as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) except with the following limitations: frequently handle, finger, and reach overhead with bilateral upper extremities; occasionally climb ladder/rope/scaffolds and crawl; frequently climb ramp/stairs, balance, stoop, crouch, and kneel.
(6) The claimant is unable to perform any past relevant work (20 C.F.R. §§ 404.1565, 416.965).
(7) The claimant was born on May 25, 1971 and was 39 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 C.F.R. §§ 404.1563, 416.963).
(8) The claimant has at least a high school education and is able to communicate in English (20 C.F.R. §§ 404.1564, 416.964).
(9) Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled" whether or not the claimant has transferable job skills (See SSR 82-41 and 20 C.F.R. Part 404, Subpart P, Appendix 2).
(10) Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 C.F.R. §§ 404.1569, 404.1569(a), 416.969, 416.969(a)).
(11) The claimant has not been under a disability, as defined in the Social Security Act, from June 30, 2010, through the date of this decision (20 C.F.R. §§ 404.1520(g), 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 is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
EVIDENCE PRESENTED
The plaintiff was 39 years old on his alleged disability onset date (June 30, 2010) and 45 years old at the time of the ALJ's decision (September 29, 2016). He has a GED and past relevant work as a sander/carver and furniture frame builder (Tr. 35).
On June 20, 2012, the plaintiff presented to Greenwood Clinic of Chiropractic complaining of low aching back pain, which was exacerbated with movement. He rated his pain a ten out of ten on the pain scale. Upon physical examination, it was noted that the plaintiff had decreased range of motion and pain upon palpation at L1-L5. He returned over a period of four visits, receiving percussion treatments. It was ultimately noted that his pain had been decreased to a six out of ten on the pain scale (Tr. 547-50).
On August 12, 2012, the plaintiff underwent a consultative examination performed by John Burrell, M.D. Dr. Burrell noted that the plaintiff 's primary complaint was pain and cramping in his hands. He stated that he had "trouble gripping with weakness," which was made "worse the more he uses it," and he was constantly dropping things (Tr. 429). He admitted to being a pack a day smoker for 21 years. With regard to the plaintiff's other complaints, Dr. Burrell noted:
The second complaint is right foot pain in the bottom of his foot. It is a cramping pain. It gets worse with use and walking, primarily around the heel with some radiation up to the balls of his foot. No injury. It is limited at this time and it is a sporadic problem.
He also complains of low back pain and neck pain. No radiation or radicular problems. No aggravating or relieving factors. He has gotten some relief in the past with high dose oxycodone. He has got no injuries at that time that he is aware of. He is not aware of any imaging that has been done.
He also complains of bilateral shin pain that is worse with walking. He describes it as a hardness he feels is likely secondary to muscle spasm.
He complains of bilateral shoulder pain with motion that is basically abduction above the midline. He was told at one point
he had a pinched nerve. No imaging has been done. It reaches all the way to his hand. It probably started at the age of 16 when he was working as a heavy lifter for a frame shop and one day he woke up with all of these pain complaints. It has been getting progressively worse since that time.(Tr. 429-30). The plaintiff worked as a roofer. He had trouble with his job because he was unable to lift anything more than "approximately half of a paint can" and could only stand for 20 to 30 minutes at a time. Upon physical examination, the plaintiff did not appear to be in any acute distress. Dr. Burrell noted that the plaintiff ambulated very slowly, but walked into the examination room without difficulty. He had no trouble getting on or off the examination table or the chair. There was no tenderness to palpation over any of the joints, including the spine. Upon neurologic examination, Dr. Burrell noted:
Grip is a little bit weak, 4/5. He uses a gross grasping grip instead of pincer grip when attempting to grab a coin or a pen out of my hand. There is some clumsiness noted. Gross movement is slow, but intact. Finger joints are within normal limits. Range of motion is normal, except for the following: His lumbar spine flexion is halted above 60 degrees without any radicular signs. He has pain walking on his heels, but otherwise within normal limits. Strength is 5/5, except for his grip as noted above. There is no muscle atrophy. Sensation is intact grossly. Cranial nerves are intact. Cerebellar is intact. Deep tendon reflexes are 2+ and equal in all four extremities.(Tr. 430-31). Dr. Burrell's impression was that the plaintiff's hand pain could potentially be a carpal tunnel-type syndrome since there were no other neurological signs or symptoms to account for his weak grip and lack of coordination. Dr. Burrell opined that the plaintiff's back and shoulder pain was likely due to overuse coupled with poor lifting technique due to a lack of neurological symptoms. He felt that the plaintiff's foot pain was likely plantar fasciitis or a possible muscle spasm. Dr. Burrell suggested his primary care physician work up his foot pain and that physical therapy might be a good option (Tr. 431).
On November 29, 2013, the plaintiff presented to the emergency room at Laurens County Memorial Hospital with complaints of back and neck pain that began four days prior. Physical examination revealed that the plaintiff had neck tenderness and painful range of motion. He also had back tenderness as well as soft tissue tenderness with limited range of motion. There was no vertebral point tenderness or costovertebral angle ("CVA") tenderness noted. The plaintiff had normal range of motion in his extremities. He reported that he consumed a 12 pack of beer a week. He was given Ibuprofen 800mg, Ultram 50mg, and was referred to orthopedist Phillip Milner, D.O. (Tr. 482-84).
On January 25, 2014, the plaintiff underwent another consultative examination performed by Melanie Johnson-Bailey, M.D. He reported he had no treating physician because he had no medical insurance. Dr. Johnson-Bailey noted that the plaintiff presented with complaints of pain in his shoulders, hands, back, neck, legs, and feet associated with rheumatoid arthritis ("RA") and migraines. He reported a one and a half year history of migraine headaches, although he stated that he has never taken medication for migraine headaches. Dr. Johnson-Bailey stated:
Claimant reports his hands cause him the worst debilitation. He was a painter by trade and "lost the last couple of jobs I had" because he was dropping paint brushes and could not perform the job duties required. He has swelling in his fingers which cause intense pain and weakness. There are no initiating factors or common worsening factors. The pain and swelling are constant but there are period of exacerbations. During exacerbations, he can barely move his fingers. He always has trouble with fine manipulation and grip. In addition he has pain in his shoulders, back, neck, legs and feet. He has constant stinging and burning in his shoulders which prevent him from reaching over his head. His lower back "goes out" intermittently without known instigators. Currently, his back is "ok" but he had an exacerbation 2 weeks ago after bending over to pick up something on the floor. It was the 2nd exacerbation since December. He can barely get out of bed when it is bothering him severely. He has burning, aching pains in his legs and feet all of the time but they are worse when his back is "out."(Tr. 491).
Dr. Johnson-Bailey noted that the plaintiff stated that he could feed and dress himself, stand for 45 minutes to one hour, sit for 45 minutes to one hour, walk on level ground for a quarter of a mile, and was able to lift seven to eight pounds (Tr. 492). Dr. Johnson-Bailey opined that, after review of the previous disability evaluation, it was likely that the plaintiff already had multiple overuse injuries due to his long work history of manual labor jobs. She further noted that his symptoms of bilateral swelling in multiple joints and the progressive worsening of his symptoms were consistent with the RA diagnosis. The plaintiff reported that his father had "crippling RA," which Dr. Johnson-Bailey pointed out is an indicator that the plaintiff's prognosis was poor (Tr. 494).
On examination, the plaintiff was well groomed with good physical hygiene. He was able to get on and off the examination table, and he took his shoes off and put them back on without assistance. Dr. Johnson-Bailey reported that the plaintiff had decreased range of motion in his cervical and lumbar spine, bilateral shoulders, and his hands. She also noted that he had a significant decrease in his grip strength bilaterally (3+/5), which had decreased even further since his last evaluation. Dr. Johnson-Bailey stated that the plaintiff's peripheral muscle strength in his hands was severely decreased as well. She observed him drop the object used for gross manipulation testing, and he had difficulty performing the heel and toe walk. Dr. Johnson-Bailey also observed that the plaintiff exhibited pain during multiple portions of the examination (Tr. 493-94). She opined:
He would currently have difficulty with any employment as he would have trouble using his hands, pushing, pulling, lifting, carrying, walking long periods or on uneven or inclined surfaces and maintaining balance. If he were able to receive medical treatment for RA as well as PT, his condition may improve to allow him to re-enter the workforce. In addition, he would likely need vocational training if his physical condition improved with treatment because it is doubtful he will ever be able to return to painting which is his lifetime trade.(Tr. 494).
On February 24, 2014, Dale Van Slooten, M.D., a state agency physician, reviewed the plaintiff's claim for benefits (including Dr. Johnson-Bailey's report), and opined that the plaintiff had the physical residual functional capacity ("RFC") to perform light work limited to only occasionally using ladders and crawling; frequently climbing stairs, balancing, stooping, crouching, and kneeling; and frequently using hands and arms for handling, fingering, and reaching overhead (Tr. 92-95). A second state agency physician, Larry Caldwell, M.D., reviewed his claim for benefits in April 2014 (including Dr. Johnson-Bailey's report), and concurred with Dr. Van Slooten's findings (Tr. 116-18).
On April 4, 2014, the plaintiff presented to Lakelands Family Practice ("Lakelands"). He was seen by Jessica Hall, FNP-C, and complained of headaches, neck pain, and back pain, which had worsened over the past couple of years. He reported that he smoked a pack of cigarettes a day. He had previously taken Celebrex and Gabapentin with some relief but had not taken any pain medication recently. A 2012 cervical spine x-ray showed mild arthosis and spurring. He reported the pain was exacerbated with activity. On physical examination, the plaintiff had bilateral muscle spasms, both lateral left and right flexion was restricted, painful flexion, as well as restricted and painful extension. Left and right rotation was also painful and restricted. Ms. Hall diagnosed the plaintiff with back, neck, joint, and shoulder pain. She prescribed Celebrex 200mg, Gabapentin 300mg, and Cyclobenzaprine HCL 7.5mg (Tr. 568-69).
On April 9, 2014, an x-ray of the plaintiff's lumbar spine revealed:
Minimal degenerative endplate changes are noted at L4-L5 and L5-S1 with subtle disc space narrowing at L5-S1. Facet arthrosis is also present at L4-L5 there is facet arthrosis is also present at L5-S1 with lesser arthritic change at L4-L5. There is old minimal chronic anterior wedging at T12.(Tr. 627). X-ray of the cervical spine revealed subtle degenerative disc changes. X-ray of the left shoulder showed subtle marginal osteophyte (Tr. 629-30).
In a followup examination on August 22, 2014, the plaintiff presented to Ms. Hall with complaints of bilateral hand pain. He reported that he was unable to sleep due to the pain. Ms. Hall noted that the hands appeared normal but did not perform any further examinations. She diagnosed bilateral hand pain. She referred him for a nerve conduction study at Self Regional Vascular lab in order to evaluate whether he might be suffering from bilateral carpal tunnel syndrome. Ms. Hall also prescribed Ibuprofen 800mg and stopped the Celebrex (Tr. 572-73). The plaintiff underwent the nerve conduction study on August 26, 2014. A handwritten note on the testing report (apparently initialed by Ms. Hall) stated that the results showed moderate to severe bilateral carpal tunnel syndrome. The plaintiff was referred to an orthopedist, but deferred an appointment at that time (Tr. 640-41).
On September 17, 2014, the plaintiff complained to Ms. Hall of bilateral lower leg pain. He reported using tobacco and consuming alcohol (Tr. 588).
On September 24, 2014, the plaintiff had a lower extremity arterial plethysmography performed, which was normal and did not reveal any evidence of peripheral artery disease (Tr. 632).
On January 16, 2015, the plaintiff returned to Ms. Hall with continued complaints of hand pain. He reported that he was currently working as a painter. He stated that he drank six to eight beers whenever he had enough money and that he drank six beers the previous day. Ms. Hall noted that the plaintiff had an upcoming appointment with Palmetto Bone and Joint. Ms. Hall diagnosed the plaintiff with arthritis (Tr. 574-76).
The plaintiff treated at Little River Medical Center between June 2015 and October 2015 for various complaints (Tr. 528-32). He did not report any hand complaints during any of these visits (Tr. 530-32).
The plaintiff first presented to New Horizon Family Health Services on February 11, 2016, with a five month history of hip and leg pain. He was seen by Lorraine Archer, FNP. He did not report any hand pain or migraine or other headaches. He reported alcohol abuse, noting that the previous Friday he got drunk and fell (Tr. 505). The plaintiff reported bilateral calf pain, joint pain, chronic back pain, and occasional numbness. Physical examination revealed that he had tenderness of the left calf but otherwise normal movement of all extremities. There were diminished reflexes of the bilateral lower extremities. Ms. Archer's assessment was hip pain, neuropathy, low back pain, and RA. She prescribed Neurontin 100mg and asked for him to return in April (Tr. 601-11).
Followup treatment notes from New Horizon dated February 23, 2016, reflect that the plaintiff had continued complaints of hip pain. Upon physical examination, Ms. Archer noted that there was limited range of motion accompanied by pain (Tr. 608). The plaintiff also reported that he did not have any alcohol since February 2012 when he was drinking a twelve-pack a day (Tr. 502-03). The plaintiff had an x-ray of his left hip on February 24th, which revealed avascular necrosis (Tr. 599).
On February 29, 2016, the plaintiff presented to the Greenville Health System emergency room after being assaulted and struck in the face multiple times. He admitted to alcohol consumption. While in the emergency room, he stated, "I'm leaving" and began screaming and pacing the halls. After multiple attempts to redirect him, the plaintiff cursed at the staff. Security was called, and the attending physician stated that the plaintiff could leave if he chose to do so. Repeated attempts were made to get him to stay, but he stated, "I'm leaving," and he was escorted to the emergency room exit by security (Tr. 520).
On April 1, 2016, Ms. Hall noted that the plaintiff had ongoing complaints of multiple joint pain and had been diagnosed with RA. At this visit, the plaintiff noted that he had trouble using his shoulders and experienced burning and hot pain below his hip. He had no specific hand complaints (Tr. 578). Ms. Hall noted a February 2016 x-ray had revealed avascular necrosis of the left hip (Tr. 599).
The plaintiff returned to Lakelands on June 2, 2016, for a health maintenance evaluation, at which time he stated that he was working in construction. He stated that he smoked one pack of cigarettes a day, but that he stopped drinking one month earlier. He had no hand complaints (Tr. 592). On July 11, 2016, the plaintiff returned to Lakelands for a followup. He complained of multiple joint problems, stating that he was diagnosed with RA in the past. He also stated that his biggest problem was with his bilateral hands and right shoulder. The plaintiff received an injection to the right shoulder joint. He was diagnosed with, among other things, bilateral carpal tunnel syndrome (Tr. 586).
At the administrative hearing, the plaintiff testified that he used a moped for transportation, but only drove short distances because his hands went numb. He stated that every so often he stopped and took a break. He also testified that the majority of his past work history involved working with his hands, from furniture carving to painting. He stated that his back pain and pain in his hands prevented him from maintaining these jobs. He testified that his hands swelled and were painful. This caused him to drop paint brushes, and he was unable to go up and down ladders (Tr. 49-54, 63).
The vocational expert testified that a hypothetical person of the plaintiff's age, education, work experience and skill set who could perform light work, lifting ten pounds frequently and 20 pounds occasionally; sit, stand, or walk up to six hours in an eight-hour work day; occasionally use ladders and crawl; frequently climb stairs, balance, stoop, kneel, and crouch; and who could frequently use hands and arms for handling, fingering, and reaching overhead, would not be able to return to the plaintiff's past relevant work (Tr. 65-66). The vocational expert testified that other relevant jobs that would be available would be shipping and receiving weigher, folder, and price marker. The ALJ then asked the vocational expert to assume that the individual was limited to only occasionally using his hands for handling a third of the work day or less. The vocational expert testified that there would be no work for that individual. The ALJ then asked the vocational expert to consider that the individual would be off task for as much as two hours at a time and would miss three or more days of work per month, and the vocational expert testified that there would be no jobs available for that individual (Tr. 66-67).
ANALYSIS
The plaintiff argues that the ALJ erred in (1) failing to find that his carpal tunnel syndrome is a severe impairment; (2) failing to properly consider his carpal tunnel syndrome in the RFC assessment; (3) failing to properly consider the opinion of consultative examiner Dr. Johnson-Bailey regarding his limitations in using his hands; and (4) failing to properly consider his subjective complaints regarding his hands (doc. 17 at 12-25).
Step Two
At step two of the sequential evaluation process, the ALJ found that the plaintiff's bilateral carpal tunnel syndrome is not a severe impairment (Tr. 25). 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). "Basic work activities" are "the abilities and aptitudes necessary to do most jobs," examples of which include "physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling." Id. §§ 404.1522, 416.922. Pursuant to SSR 96-03p, "[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.
As argued by the Commissioner (doc. 19 at 10-11), if an ALJ commits error at step two, it is rendered harmless if "the ALJ considers all impairments, whether severe or not, at later steps." Robinson v. Colvin, C.A. No. 4:13-cv-823-DCN, 2014 WL 4954709, at *14 (D.S.C. Sept. 29, 2014) (citing Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008)). Here, the ALJ did consider the plaintiff's carpal tunnel syndrome in the following steps. However, the plaintiff argues that the ALJ erred in the RFC assessment by failing to adequately consider the limitations caused by his carpal tunnel syndrome, by discounting the opinion of consultative examiner Dr. Johnson-Bailey as to those limitations, and in failing to properly consider his subjective complaints regarding his hands. The undersigned agrees, as discussed below.
Residual Functional Capacity
Social Security Ruling ("SSR") 96-8p provides in pertinent part:
The RFC assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions in paragraph (b), (c), and (d) of 20 C.F.R. §§ 404.1545 and 416.945. Only after that may RFC be expressed in terms of the exertional level of work, sedentary, light, medium, heavy and very heavy.SSR 96-8p, 1996 WL 374184, at *1. The ruling further provides:
The RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations). In assessing RFC, the adjudicator must discuss the individual's ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and describe the maximum amount of each work-related activity the individual can perform based on the evidence available in the case record. The adjudicator must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved.Id. at *7 (footnote omitted). Further, "[t]he RFC assessment must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence." Id. Moreover, "[t]he RFC assessment must always consider and address medical source opinions. If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted." Id.
In the RFC assessment, the ALJ noted that the consultative examination by Dr. Burrell in August 2012 showed that the plaintiff's "grip was a little bit weak: 4/5. He used a gross grasping grip instead of a pincer grip when attempting to grab a coin or a pen" (Tr. 30, 32) (citing Tr. 429-31). The ALJ also acknowledged that the consultative examination by Dr. Johnson-Bailey in January 2014 showed that the plaintiff "had decreased range of motion in bilateral hands. Bilateral hand strength was significantly decreased (3+/5). Bilateral hands had swelling and severely decreased peripheral muscle strength. He dropped the object used for gross manipulation testing on exam" (Tr. 31, 32) (citing Tr. 491-94). The ALJ noted that Dr. Johnson-Bailey diagnosed the plaintiff, in part, with rheumatoid arthritis in the shoulders, hands, back, neck, legs, and feet (Tr. 31) (citing Tr. 491-94). The ALJ also noted that a nerve conduction study in August 2014 showed carpal tunnel syndrome (Tr. 32) (citing Tr. 640-41).
Notably, a handwritten note on the testing report (apparently initialed by Ms. Hall) stated that the results showed moderate to severe bilateral carpal tunnel syndrome (Tr. 640-41) (emphasis added).
After acknowledging the foregoing evidence in the RFC assessment, the ALJ found that the plaintiff's bilateral carpal tunnel syndrome was "not severe, with no resulting RFC limitations greater than those outlined above (specifically: frequently handle and finger with bilateral upper extremities)" (Tr. 32). In making this finding, the ALJ noted only that an examination of the plaintiff's hands in August 2014 was normal, along with other physical examinations (Tr. 31, 32) (citing Tr. 504, 507, 563, 572, 576, 580, 582, 584, 590, 594, 608, 610). However, the ALJ failed to explain how the RFC assessment limitation to frequent handling, fingering, and reaching with the bilateral upper extremities accounted for the plaintiff's limitations in the use of his hands given the evidence of record set out above. "The ALJ must both identify evidence that supports [her] conclusion and 'build an accurate and logical bridge from [that] evidence to [her] conclusion.'" Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (quoting Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016)). Dr. Johnson-Bailey's Opinion
As noted by the plaintiff, the August 2014 treatment record cited by the ALJ was a followup examination with Ms. Hall regarding the plaintiff's complaints of bilateral hand pain. Ms. Hall noted that the "appearance" of the plaintiff's hands was normal, but the notes do not indicate that any further examination or testing was done at that time (Tr. 572-73). Instead, Ms. Hall referred the plaintiff for a nerve conduction study, which as noted above, revealed moderate to severe bilateral carpal tunnel syndrome (Tr. 573, 640-41).
The plaintiff further argues that the ALJ erred in failing to properly consider the opinion of consultative examiner Dr. Johnson-Bailey regarding his limitations in using his hands. In the RFC assessment, the ALJ acknowledged Dr. Johnson-Bailey's opinion that the plaintiff would have "difficulty with any employment as he would have trouble using his hands, pushing, pulling, lifting, carrying" (Tr. 494), but the ALJ gave the opinion only "partial weight," finding that the opinion was "based primarily on the claimant's self-report . . ." (Tr. 34). It is unclear what basis the ALJ had for this conclusion. In her examination report, Dr. Johnson-Bailey stated that she completed a full orthopedic examination finding that the plaintiff's "functional limitations supported by objective findings," including decreased range of motion in the hands; "significantly decreased grip strength bilaterally" that had decreased since a previous evaluation; "severely decreased" peripheral muscle strength; "bilateral hand swelling"; and "he dropped the object used for gross manipulation testing on exam."(Tr. 491-96).
The ALJ further discounted Dr. Johnson-Bailey's opinion as to the plaintiff's hand limitations by noting that "the longitudinal record does not have support for completely disabling limits in his hands" (Tr. 34). However, as noted by the plaintiff, Dr. Johnson-Bailey's opinion is supported by Dr. Burrell's examination of the plaintiff in August 2012 in which weak grip and clumsiness were also noted (Tr. 430-31) and a nerve conduction study showing moderate to severe bilateral carpal tunnel syndrome just seven months after Dr. Johnson-Bailey's opinion (Tr. 641). Further, the ALJ did not explain how the evidence led her from finding that the plaintiff did not have "completely disabling limits in his hands" to her ultimate assessment that the plaintiff could perform light work with frequent handling, fingering, and reaching with the bilateral upper extremities.
Based upon the foregoing, the undersigned recommends that this matter be remanded for further consideration of the plaintiff's limitations in the use of his hands.
Subjective Complaints
Lastly, the plaintiff argues that the ALJ erred in failing to properly consider his subjective complaints regarding his hands. At the administrative hearing, the plaintiff testified that his hands swell up and hurt and that he "love[s] to paint, but [he] keep[s] dropping brushes and stuff" (Tr. 54). He further stated that he cannot ride his moped very far because "my hands go numb" (Tr. 49). He told the ALJ that his primary care providers had diagnosed him with carpal tunnel syndrome and rheumatoid arthritis (Tr. 55). He explained that he could no longer do his previous work with furniture because he "couldn't do it with my hands, holding the little things" and that he could no longer work building frames because he could not hold a staple gun (Tr. 60). He further testified that the vibrations from his lawn mower hurt his hands and that he no longer ties his shoes or fastens buttons on a regular basis (Tr. 61).
The Fourth Circuit Court of Appeals has stated as follows with regard to the analysis of a claimant's subjective complaints:
[T]he determination of whether a person is disabled by pain or other symptoms is a two-step process. First, there must be objective medical evidence showing the existence of a medical impairment(s) which results from anatomical, physiological, or psychological abnormalities and which could reasonably be expected to produce the pain or other symptoms alleged. . . .Craig v. Chater, 76 F.3d 585, 594-95 (4th Cir. 1996) (citations and internal quotation marks omitted) (emphasis in original). In Hines v. Barnhart, a Fourth Circuit Court of Appeals panel held, "Having met his threshold obligation of showing by objective medical evidence a condition reasonably likely to cause the pain claimed, [the claimant] was entitled to rely exclusively on subjective evidence to prove the second part of the test, i.e., that his pain [was] so continuous and/or severe that it prevent[ed] him from working a full eight-hour day." 453 F.3d 559, 565 (4th Cir. 2006). However, the court in Hines also acknowledged that "'[o]bjective medical evidence of pain, its intensity or degree (i.e., manifestations of the functional effects of pain such as deteriorating nerve or muscle tissue, muscle spasm, or sensory or motor disruption), if available should be obtained and considered.'" Id. at 564 (quoting SSR 90-1p, 1990 WL 300812). The court further acknowledged:
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It is only after a claimant has met her threshold obligation of showing by objective medical evidence a medical impairment reasonably likely to cause the pain claimed, that the intensity and persistence of the claimant's pain, and the extent to which it affects her ability to work, must be evaluated.
While objective evidence is not mandatory at the second step of the test, "[t]his is not to say, however, that objective medical evidence and other objective evidence are not crucial to evaluating the intensity and persistence of a claimant's pain and the extent to which it impairs her ability to work. They most certainly are. Although a claimant's allegations about her pain may not be discredited solely because they are not substantiated by objective evidence of the pain itself or its severity, they need not be accepted to the extent they are inconsistent with the available evidence, including objective evidence of the underlying impairment, and the extent to which that impairment can reasonably be expected to cause the pain the claimant alleges she suffers."Id. at 565 n.3 (quoting Craig, 76 F.3d at 595). See Johnson v. Barnhart, 434 F.3d 650, 658 (4th Cir. 2005); 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2) ("We must always attempt to obtain objective medical evidence and, when it is obtained, we will consider it in reaching a conclusion as to whether you are disabled. However, we will not reject your statements about the intensity and persistence of your pain or other symptoms or about the effect your symptoms have on your ability to work solely because the available objective medical evidence does not substantiate your statements.").
A claimant's symptoms, including pain, are considered to diminish his capacity to work to the extent that alleged functional limitations are reasonably consistent with objective medical evidence and other evidence. 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4). Furthermore, "a formalistic factor-by-factor recitation of the evidence" is unnecessary as long as the ALJ "sets forth the specific evidence [he] relies on" in evaluating the claimant's subjective symptoms. White v. Massanari, 271 F.3d 1256, 1261 (10th Cir. 2001). In making these determinations, the ALJ's decision "must contain specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms." SSR 16-3p, 2017 WL 5180304 (applicable date Mar. 28, 2016). The factors to be considered by an ALJ in evaluating the intensity, persistence, and limiting effects of an individual's symptoms include the following:
Social Security Ruling16-3p rescinded and superseded SSR 96-7p and became applicable on March 28, 2016. 2017 WL 5180304, at *13. Because this application was adjudicated after the date SSR 16-3p became applicable, the court has analyzed the plaintiff's allegations under that ruling. Id. at *13 n.27. The court observes that SSR 16-3p discontinues use of the term "credibility," but "'the methodology required by both SSR 16-3p and SSR 96-7, are quite similar. Under either, the ALJ is required to consider [the claimant's] report of his own symptoms against the backdrop of the entire case record.'" Best v. Berryhill, C.A. No. 0:15-cv-02990-DCN, 2017 WL 835350, at *4 n.3 (Mar. 3, 2017) (alteration in original) (quoting Sullivan v. Colvin, C.A. No. 7:15-cv-504, 2017 WL 473925, at *3 (W.D. Va. Feb. 3, 2017)). See also Keaton v. Colvin, C.A. No. 3:15-cv-588, 2017 WL 875477, at *6 (E.D. Va. Mar. 3, 2017) ("Effective as of March 28, 2016, SSR 16-3p superseded SSR 96-7p. SSR 16-3p effectively removes the use of the term 'credibility' but does not alter the substantive analysis.").
(1) the individual's daily activities;
(2) the location, duration, frequency, and intensity of the individual's pain or other symptoms;
(3) factors that precipitate and aggravate the symptoms;
(4) the type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms;
(5) treatment, other than medication, the individual receives or has received for relief of pain or other symptoms;
(6) any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on
his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and20 C.F.R. §§ 404.1529(c), 416.929(c).
(7) any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms.
The ALJ found that while the plaintiff's "medically determinable impairments could reasonably be expected to cause some of the alleged symptoms," the plaintiff's statements concerning the intensity, persistence, and limiting effects of his symptoms were "not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in the decision" (Tr. 29) (emphasis in original). With regard to his hand complaints, the ALJ noted that the plaintiff was able to sign a medical release form without difficulty in August 2012, even though he stated that he could hardly grip with his hands; he was able to ride his moped for short distances; he had an email address and used text messages; and he prepared simple meals and washed clothes (Tr. 33) (citing Tr. 49, 58, 373, 418). As the undersigned recommends that this case be remanded for further consideration of the plaintiff's limitations in the use of his hands, the undersigned further recommends that the ALJ also be directed to further consider the plaintiff's subjective complaints as to his hand limitations.
The ALJ also noted that the plaintiff deferred a referral to an orthopedist after completion of the nerve conduction study (Tr. 32) (citing Tr. 641). The plaintiff argues that the ALJ ignored the evidence that he did not have medical insurance at the time (Tr. 21 n.4). While an "individual's statements may be less credible if the level or frequency of treatment is inconsistent with the level of complaints, or if the medical reports or records show that the individual is not following the treatment as prescribed and there are no good reasons for this failure[,] . . . the adjudicator must not draw any inferences about an individual's symptoms and their functional effects from a failure to seek or pursue regular medical treatment without first considering any explanations that the individual may provide . . . ." SSR 96-7p, 1996 WL 374186, at *7. In response, the Commissioner argues that "the record is replete with reference to the fact that Plaintiff drank and had a one-pack a day smoking habit . . . . Plaintiff's argument that he cannot afford certain treatment rings hollow in light of his tobacco abuse and drinking habit" (doc. 19 at 12-13). However, this is post-hoc rationalization not included in the decision. See Golembiewski v. Barnhart, 322 F.3d 912, 916 (7th Cir.2003) ("[G]eneral principles of administrative law preclude the Commissioner's lawyers from advancing grounds in support of the agency's decision that were not given by the ALJ."). Upon remand, the ALJ should not draw any inferences about the plaintiff's symptoms based upon his deferral of the appointment with the orthopedist without first considering any explanations that the plaintiff may provide.
CONCLUSION AND RECOMMENDATION
Based upon the foregoing, this court recommends that the Commissioner's decision be reversed under sentence four of 42 U.S.C. § 405(g), with a remand of the cause to the Commissioner for further proceedings as discussed above.
Although the plaintiff requests that the court "reverse the decision of the ALJ . . . and order the Commissioner to award appropriate benefits . . ." (doc. 17 at 25), the court finds that the plaintiff's entitlement to benefits is not wholly established and that this matter should be remanded for further consideration and assessment of the above-discussed evidence by the ALJ. See Crider v. Harris, 624 F.2d 15, 17 (4th Cir. 1980) (finding remand for an award of benefits was warranted where the individual's entitlement to benefits was "wholly established" on the state of the record). --------
IT IS SO RECOMMENDED
s/ Kevin F. McDonald
United States Magistrate Judge October 29, 2018
Greenville, South Carolina