Opinion
Civil Action 8:23-cv-00544-BHH-JDA
01-23-2024
Takeisha A.[1], Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
JACQUELYN D. AUSTIN, UNITED STATES MAGISTRATE JUDGE
This matter is before the Court for a Report and Recommendation pursuant to Local Civil Rule 73.02(B)(2)(a), D.S.C., and 28 U.S.C. § 636(b)(1)(B). Plaintiff brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the Commissioner of Social Security (“the Commissioner”), denying Plaintiff's claim for supplemental security income (“SSI”). For the reasons set forth below, the undersigned recommends 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.
Section 1383(c)(3) provides, “The final determination of the Commissioner of Social Security after a hearing under paragraph (1) shall be subject to judicial review as provided in section 405(g) of this title to the same extent as the Commissioner's final determinations under section 405 of this title.” 42 U.S.C. § 1383(c)(3).
PROCEDURAL HISTORY
In November 2020, Plaintiff filed an application for SSI, alleging an onset of disability beginning November 1, 2020. [R. 233-39.] The claim was denied initially and on reconsideration by the Social Security Administration (“the Administration”). [R. 114-47.] Plaintiff requested a hearing before an administrative law judge (“ALJ”), and on June 22, 2022, ALJ Joshua Vineyard conducted a hearing. [R. 38-89.]
The ALJ issued a decision on July 7, 2022, finding Plaintiff not disabled under the Social Security Act (“the Act”). [R. 7-32.] At Step 1, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since November 6, 2020, the application date. [R. 12, Finding 1.] At Step 2, the ALJ found Plaintiff had the following severe impairments: Chiari malformation with migraines, degenerative disc disease of the cervical and lumbar spines, asthma, obesity, depression, and anxiety. [R. 13, Finding 2.] The ALJ also found that Plaintiff had non-severe impairments of allergic rhinitis, GERD, anemia, and Vitamin D deficiency, and that Plaintiff did not have a medically determinable impairment associated with problems with her right shoulder/arm or with blackouts. [R. 13.]
The five-step sequential analysis used to evaluate disability claims is discussed in the Applicable Law section, infra.
At Step 3, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 13, Finding 3.] Before addressing Step 4, the ALJ determined Plaintiff had the following residual functional capacity (“RFC”):
[Plaintiff] has the [RFC] to perform medium work as defined in 20 C.F.R. 416.967(c), except she can never climb ladders, ropes or scaffolds. She can occasionally stoop, crouch, crawl and climb ramps and stairs and can frequently balance and kneel. She can frequently engage in reaching with her right upper extremity. She cannot work outdoors and can tolerate exposure to moderate levels of noise as defined in the DOT. She can tolerate occasional exposure to extreme heat, extreme cold, humidity, fumes, odors, dusts, gases, poorly ventilated areas, and hazards such as unprotected heights and moving machinery. She remains capable of work requiring no more than occasional changes in work setting or duties. She can occasionally interact with the public as part of her assigned work duties.[R. 15, Finding 4.]
At Step 4, the ALJ determined that Plaintiff was able to perform her past relevant work as a babysitter. [R. 23, Finding 5.] Considering Plaintiff's age, education, work experience, RFC and the testimony of the vocational expert (“VE”), the ALJ also found that, there were other jobs that existed in significant numbers in the national economy that Plaintiff could perform. [R. 24.] Thus, in light of the above, the ALJ determined that Plaintiff had not been under a disability, as defined in the Act, since November 6, 2020, the date the application was filed. [R. 25, Finding 6.]
Plaintiff requested Appeals Council review of the ALJ's decision and the Council declined review. [R. 1-6.] Plaintiff filed this action for judicial review on February 8, 2023. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff argues that the ALJ committed reversible error by failing to properly evaluate two medical opinions of Advanced Practice Registered Nurse Julia Hucks. [Docs. 10 at 18-21; 12.] The Commissioner, on the other hand, argues that substantial evidence supports the ALJ's decision, and the Court should affirm. [Doc. 11.]
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); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966).
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 & Hum. Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner's decision “is not supported by substantial evidence, [the district court] may affirm, modify, or reverse the [Commissioner's decision] ‘with or without remanding the cause for a rehearing.'” Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013) (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). See Shalala v. Schafer, 509 U.S. 292, 296 (1993). 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 RFC); 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, 734 F.3d at 295; 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. 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), superseded by amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec'y, Dep't of Health & Hum. 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 & Hum. 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. § 416.920. 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 5, 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. § 416.920(a)(4); 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. § 416.972(a)-and gainful-done for pay or profit, whether or not a profit is realized, Id. § 416.972(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. § 416.974-975.
B. Severe Impairment
An impairment is “severe” if it significantly limits an individual's ability to perform basic work activities. See id. § 416.922. 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), 1382c(a)(3)(G). 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), 1382c(a)(3)(G).
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. § 416.909, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience. 20 C.F.R. § 416.920(a)(4)(iii), (d).
The Listing of Impairments is applicable to SSI claims pursuant to 20 C.F.R. §§ 416.911, 416.925.
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 RFC with the physical and mental demands of the kind of work he has done in the past to determine whether the claimant has the RFC to do his past work. 20 C.F.R. § 416.960(b).
RFC is “the most [a claimant] can still do despite [his] limitations.” 20 C.F.R. § 416.945(a)(1).
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 20 C.F.R. § 416.920(f)-(g); Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992). 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); 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 VE to establish the claimant's ability to perform other work. 20 C.F.R. § 416.969a; 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 VE 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 VE'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. § 416.969a(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. § 416.969a(c)(1).
II. Developing the Record
The ALJ has a duty to fully and fairly develop the record. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). The ALJ is required to inquire fully into each relevant issue. Snyder, 307 F.2d at 520. The performance of this duty is particularly important when a claimant appears without counsel. Marsh v. Harris, 632 F.2d 296, 299 (4th Cir. 1980). In such circumstances, “the ALJ should scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts, . . . being especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited.” Id. (internal quotations and citations omitted).
III. Medical Opinions
For claims filed on or after March 27, 2017, as Plaintiff's are, the applicable regulations require ALJs to consider the persuasiveness of each medical opinion of record in accordance with the following factors: (1) supportability; (2) consistency; (3) relationship with the claimant; (4) specialization; and (5) other factors that tend to support or contradict the opinion. 20 C.F.R. § 416.920c(b), (c). Regarding supportability, “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion . . . the more persuasive the medical opinion will be.” 20 C.F.R. § 416.920c(c)(1). As for the relationship with the claimant, ALJs consider the “length of the treatment relationship,” the “[f]requency of examinations,” the “[p]urpose of the treatment relationship,” the “[e]xtent of the treatment relationship,” and whether the source has examined the claimant. 20 C.F.R. § 416.920c(c)(3).
The new regulations define the term “medical opinion” as “a statement from a medical source about what you can still do despite your impairment(s) and whether you have one or more impairment-related limitations or restrictions.” 20 C.F.R. § 416.913(a)(2).
IV. Medical Tests and Examinations
The ALJ is required to order additional medical tests and exams only when a claimant's medical sources do not give sufficient medical evidence about an impairment to determine whether the claimant is disabled. 20 C.F.R. § 416.917; 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. § 416.917. 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. § 416.929(c)(1)-(c)(2) (outlining evaluation of pain).
In evaluating claims of disabling pain, the ALJ must proceed in a two-part analysis. Morgan v. Barnhart, 142 Fed.Appx. 716, 723 (4th Cir. 2005) (unpublished opinion); see also SSR 16-3p, 82 Fed.Reg. at 49,463. First, “the ALJ must determine whether the claimant has produced medical evidence of a ‘medically determinable impairment which could reasonably be expected to produce” the alleged symptoms. Id. (quoting Craig, 76 F.3d at 594); see SSR 16-3p, 82 Fed.Reg. at 49,463. Second, the ALJ must evaluate “the intensity and persistence of an individual's symptoms such as pain and determine the extent to which an individual's symptoms limit his or her ability to perform work-related activities . . . or to function independently.” SSR 16-3p, 82 Fed.Reg. at 49,464; see 20 C.F.R. § 416.929 (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
Medical Evidence
Plaintiff presented to the emergency room on June 11, 2020, complaining of a headache, neck pain, and mild chest pain after being involved in a car accident. [R. 409.] A physical examination revealed muscular tenderness and limited range of motion in her neck but a normocephalic and atraumatic head; equal, round, and reactive pupils; normal heart rate and rhythm; no neurological deficits; and normal breath sounds. [R. 411.] A CT scan of Plaintiff's head showed borderline low-lying tonsils at the foramen magnum, suggesting a Chiari I malformation. [R. 412.] A CT scan of her cervical spine showed no acute finding, but indicated a possible Chiari I malformation. [Id.] The plan was to treat Plaintiff symptomatically, and she was recommended to follow up with neurology for evaluation of Chiari I malformation. [R. 415.]
“A Chiari malformation is a problem in which a part of the brain (the cerebellum) at the back of the skull bulges through a normal opening in the skull where it joins the spinal canal. This puts pressure on parts of the brain and spinal cord, and can cause mild to severe symptoms.” Chiari Malformation Type I, Johns Hopkins Medicine, https://www.hopkinsmedicine.org/health/conditions-and-diseases/chiari-malformation-type-i (last visited Nov. 27, 2023).
Plaintiff received chiropractic treatment between June and August 2020 to address tenderness to the cervical musculature, thoracic paraspinal musculature, and lumbar paraspinal musculature. [R. 362-77.] In July 2020, she established care with Julia Hucks, an advanced practice registered nurse at Hope Health, for management of medical issues including daily headaches, GERD, anemia, vitamin D deficiency, and low back pain. [R. 533.] A physical examination revealed some low back tenderness but normal gait; regular heart rate and rhythm; normocephalic and atraumatic head; equal, round, and reactive pupils; clear lungs with no wheezes, rales, or rhonchi; no neurological deficits; good insight and judgment; and a full range of affect and mood. [R. 534-35.] Nurse Hucks referred Plaintiff to neurology for evaluation of Chiaria I malformation. [R. 533.] At an August 10, 2020, follow-up appointment, Plaintiff reported that her back pain was 70% better, her anxiety had lessened, and she felt better overall. [R. 531.] A physical examination continued to show some lumbar pain on palpation but was otherwise remarkable. [R. 531.]
Shortly thereafter, Plaintiff saw neurosurgeon Larry Davidson, M.D., complaining of frontal headaches that had been worsening since her June 2020 accident. [R. 402.] Plaintiff denied any other neurological symptoms and a physical examination revealed no obvious deformities in her extremities; full (5/5) strength throughout; intact extra ocular muscles; equal and reactive pupils; intact cranial nerves; normal gait; and normal cervical range of motion. [R. 402.] Dr. Davidson assessed Plaintiff with chronic intractable headaches and referred her for a brain MRI. [R. 403.] During a November 2020 follow-up appointment, Dr. Davidson noted that her MRI was essentially normal with the exception of some frontal sinus disease. [R. 400.] He had sought a second opinion from Bradford Moore, M.D., a neuroradiology specialist, who determined that Plaintiff had a Chiari I malformation. [Id.] During that appointment, Plaintiff reported that her headaches were “by no means [a]n every day event and they [occurred] more sporadically at times when she [was] more active etc.” [Id.] Dr. Davidson and Plaintiff agreed that her symptoms at that point did not warrant surgical intervention and Plaintiff agreed she would return if her symptoms worsened. [R. 401.]
Since then, Plaintiff has seen Nurse Hucks several times for different complaints. In November 2020, Plaintiff reported that she was having headaches daily but was not taking any medication for them. [R. 442.] Physical and psychological examinations showed Plaintiff to be in no acute distress with normocephalic and atraumatic head; clear lungs to auscultation; no clubbing, cyanosis, or edema; intact cranial nerves; normal motor strength throughout; good insight and judgment; and a full range of affect and mood. [R. 444-45.] In late-November 2020, Plaintiff complained of an asthma flare, but she stated that she was only using her son's old nebulizer, and her lungs were clear to auscultation. [R. 523-24.]
Plaintiff complained of worsening depression in March 2021, and she was encouraged to follow up with her counselor. [R. 516-17.] Later in March 2021, Plaintiff reported that her depression had decreased in intensity. [R. 512-13.]
In July 2021, Plaintiff reported that her asthma was not well controlled, but she admitted that she had been out of her inhalers for a month. [R. 509.] A patient health questionnaire showed that Plaintiff had minimal depression, and a physical examination showed Plaintiff to be in no acute distress with some lumbar tenderness; normocephalic and atraumatic head; equal, round, and reactive pupils; clear lungs with few wheezes; no neurological deficits; good insight and judgment; and a full range of affect and mood. [R. 509-10.]
In August 2021, Plaintiff complained of right arm weakness after being struck by lightning. [R. 479.] A physical examination revealed limited range of motion in the right shoulder but full (5/5) strength, intact sensation, and negative Phalen's test. [R. 481.] A cervical x-ray showed mild cervical spondylosis with disc space narrowing at ¶ 5-6 and C6-7 [R. 487], and an x-ray of the right shoulder was normal [R. 486]. In September 2021, Plaintiff reported having an asthma attack, but she was not taking her medications due to their costs. [R. 476-77.] She reported improvement in her back and arms from physical therapy. [R. 477.]
In January 2022, Nurse Hucks noted that Plaintiff's depression was in remission. [R. 626.] She continued to report that her asthma was poorly controlled. [R. 626.] A physical examination showed her to be in no acute distress with scattered inspiratory wheezes, low back tenderness and decreased range of motion in her back, but full cervical range of motion; no clubbing, cyanosis, or edema in her extremities; no neurological deficits; and good insight and judgment with a full range of affect and mood. [R. 627-28.] A lumbar x-ray showed mild degenerative changes without acute osseous abnormality or abnormal motion. [R. 631.] Chest x-rays were also normal showing no acute cardiopulmonary abnormality, normal lung volumes, and no focal airspace disease or pleural effusion. [R. 630.] In follow-up appointments in February and March 2022, Plaintiff continued to show only minimal depressive symptoms. [R. 620, 624.] In March 2022, Plaintiff reported that her asthma symptoms had improved with prescribed inhaler usage. [R. 620.] A pulmonary function test revealed only mild obstruction with improvement with inhalers. [Id.] A physical examination showed Plaintiff to be in no acute distress with normocephalic and atraumatic head; equal, round, and reactive pupils; clear lungs to auscultation with no wheezes, rales, or rhonchi; unremarkable back; no clubbing, cyanosis, or edema in her extremities; no neurological deficits; and good insight and judgment with a full range of affect and mood. [R. 621.]
Nurse Hucks' Questionnaires
Nurse Hucks completed a questionnaire regarding Plaintiff on April 21, 2021. [R. 469.] The form, which the Administration had provided, stated, “A review of medical information in your patient's record indicates that he/she may have a mental condition. To better determine if a mental condition significantly limits this patient's ability to work, please complete the following questions.” [Id.] The form also asked that Nurse Hucks attach any treatment records for Plaintiff for December 15, 2020, or after. [Id.]
Nurse Hucks listed Plaintiff's mental diagnosis as depression and described her mental state as oriented to time, person, place, and situation and as showing an intact thought process, appropriate thought content, depressed mood/affect, and adequate attention/concentration and memory. [Id.] Choosing from boxes labeled “good,” “adequate,” “poor,” and “unable to say,” Nurse Hucks rated Plaintiff's ability to complete basic activities of daily living as good, her ability to relate to others as adequate, and her abilities to complete both simple, routine tasks and complex tasks as poor. [Id.] In the space provided for an explanation of any “poor” ratings, Nurse Hucks wrote that Plaintiff has chronic headaches due to Chiari malformation. [Id.]
Nurse Hucks filled out a second questionnaire regarding Plaintiff on November 10, 2021. [R. 611.] On that form, Nurse Hucks listed her diagnoses as Chiari I malformation, chronic headaches, anxiety, asthma, depression, and GERD. [Id.] She stated she had known Plaintiff for 16 months. [Id.] For medications prescribed, she listed Ibuprofen 400 mg and cyclobenzaprine 10 mg and noted that Plaintiff's compliance with treatment had been good. [Id.] She described her treatment history as follows: “Chronic [headaches] for years. Chiari malformation diagnosed by head CT [June 2020 at] MUSC ER following [motor vehicle accident]. Followed by neuro states surgery would be curative.... Chronic depression / grief reaction.” [Id.]
On a chart with choices of “unlimited,” “good,” “fair,” “poor,” “none,” or “unknown,” Nurse Hucks rated Plaintiff good on her abilities to follow work rules and use judgment; fair on her ability to function independently and maintain attention/concentration; poor on her ability to deal with work stresses; and unknown on her abilities to relate to co-workers, deal with the public, interact with supervisors, and understand, remember, and carry out job instructions. [R. 612.] She rated Plaintiff's ability to maintain personal appearance as good, her ability to “[r]elate predictabl[y] in social situations” as fair, and her abilities to behave in an emotionally stable manner and to demonstrate reliability as poor. [Id.] As to each of the questions, the form asked Nurse Hucks to “[d]escribe any limitations and include the medical/clinical findings that support this assessment.” [Id.] However, Nurse Hucks did not add anything to her box checking. She also checked “yes” to questions of whether Plaintiff was having problems maintaining attention or concentration in completing various tasks, chores, or leisure activities and whether she was exhibiting problems relating to others. [R. 613.] She stated that she did not know whether treatment was helping. [Id.]
ALJ's Analysis
The ALJ explained his evaluations of these questionnaires:
The undersigned has considered the checkbox Mental Health [RFC] form completed by FNP Julia Hucks, April 21, 2021 (Exhibit B8F)[, which] suggests that [Plaintiff] is “good” in completing activities of daily living, “adequate” in relating to others, and “poor” in completing simple, routine, and complex tasks. Of note, and despite the nature of this form, this provider suggests that [Plaintiff's] “poor” ratings are due to headaches - not mental health issues. The terms used on this form remain vague and undefined, and offer little useful insight into [Plaintiff's] actual functional limitations. Moreover, [Plaintiff's] headaches are described as not intractable and do not receive a level of longitudinal care consistent with disabling restrictions. Thus, this opinion is not persuasive.
....
Finally, the undersigned has considered a second [RFC] statement from FNP Julia Hucks, November 10, 2021, (Exhibit B14F), which suggests that [Plaintiff] would be “poor” in dealing with work stresses, behaving in an emotionally stable manner,
demonstrating reliability, but fails to further describe the limitations or offer clinical support for such suggestions despite being prompted to do so. The minimal mental health evidence available fails to independently support such limitations, and the term “poor” remains undefined and offers no specific insight into [Plaintiff's] functioning. Thus, the undersigned finds this is not persuasive.[R. 22-23.]
Discussion
For benefits applications filed on or after March 27, 2017, such as Plaintiff's, the Administration has enacted substantial revisions to the regulations that govern the evaluation of opinion evidence. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed.Reg. 5844-01, 2017 WL 168819 (Jan. 18, 2017). Under these new regulations, ALJs are not required to assign an evidentiary weight to medical opinions or to accord special deference to treating source opinions. See 20 C.F.R. § 416.920c(a) (providing that ALJs “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from [a claimant's] medical sources”). Rather, an ALJ must determine and “articulate in [the] . . . decision how persuasive [he or she] find[s] all of the medical opinions and all of the prior administrative medical findings in [a claimant's] case record.” 20 C.F.R. § 416.920c(b).
In determining the persuasiveness of an opinion or finding, the Administration deems supportability and consistency “the most important factors,” and thus an ALJ must address those particular factors in evaluating the persuasiveness of an opinion or a finding. 20 C.F.R. § 416.920c(b)(2). “Supportability” means “[t]he extent to which a medical source's opinion is supported by relevant objective medical evidence and the source's supporting explanation.” Revisions to Rules, 82 Fed.Reg. at 5853; see also 20 C.F.R. § 416.920c(c)(1). “Consistency” denotes “the extent to which the opinion is consistent with the evidence from other medical sources and nonmedical sources in the claim.” Revisions to Rules, 82 Fed.Reg. at 5853; see also 20 C.F.R. § 416.920c(c)(2). The ALJ need address the three other persuasiveness factors-the nature and extent of the medical source's relationship with the claimant and area of specialization, as well as the catch-all “other factors that tend to support or contradict a medical opinion or prior administrative medical finding,” 20 C.F.R. § 416.920c(c)(3)-(5)-only when the ALJ finds two or more opinions or findings on the same issue to be “equally persuasive” in terms of supportability and consistency, 20 C.F.R. § 416.920c(b)(3). The new regulations also deem “inherently neither valuable nor persuasive,” 20 C.F.R. § 416.920b(c), “[s]tatements on issues reserved to the Commissioner,” 20 C.F.R. § 416.920b(c)(3), such as statements that a claimant does not qualify as disabled or remains unable to work, 20 C.F.R. § 416.920b(c)(3)(i).
In this case, the ALJ's reasons for finding Nurse Hucks' questionnaires unpersuasive are based primarily on a lack of supportability and consistency. In particular, the ALJ relied on the fact that the terms on the form were vague and undefined and that Nurse Hucks did not offer any explanation of the nature of Plaintiff's functional limitations or why she believed Plaintiff's underlying condition would cause such limitations, and on the ALJ's assessment that the medical records did not support disabling restrictions. [R. 23.] Interestingly, Plaintiff does not dispute that the terms on the forms are vague and undefined, nor does she dispute that neither Nurse Hucks nor Plaintiff's medical records clarified the functional limitations Hucks believed Plaintiff had or supported the existence of such functional limitations. Plaintiff nonetheless contends that it is disingenuous of the ALJ to criticize the terms on the forms as vague and undefined, given that it was the Administration who provided the Nurse Hucks with the first form. [Doc. 10 at 20-21.]
Plaintiff does argue that Nurse Hucks' opinion was “supported” in the narrow sense that she physically attached treatment records to one of the questionnaires; however, Plaintiff offers no argument as to why the records should be viewed as supporting. [See Doc. 10 at 21 (“Ms. Hucks was . . . asked to return the treatment records with the form, which she did. R. 617. So it cannot be found that her opinions were unsupported.”).] Plaintiff also contends that the ALJ's observation that Plaintiff's “headaches were ‘described as not intractable and do not receive a level of longitudinal care consistent with disabling restrictions'” is “curious since the ALJ himself found [Plaintiff's] Chiari malformation with migraines to be one of her severe impairments.” [Doc. 10 at 21 (citing R. 13, 23).] However, Plaintiff fails to explain what is curious about the ALJ's observation. By finding the Chiari malformation with migraines was a severe impairment, the ALJ found that the impairment significantly limited her ability to do basic work activities, 20 C.F.R. § 416.922 (“An impairment or combination of impairments is not severe if it does not significantly limit your physical or mental ability to do basic work activities.”), but in no way suggested that it caused limitations so significant that she was unable “to engage in any substantial gainful activity,” 42 U.S.C. § 1382c(a)(3)(A).
The Court does not agree. The ALJ's reasoning does not so much reflect a specific criticism of the forms at issue as it reflects the ALJ's conclusion that, in this case, the forms needed to be accompanied by further explanation, reasoning, or medical support in order to be persuasive. The Court finds no flaw in that analysis. See Waddell v. Saul, No. 9:20-cv-02425-MHC, 2022 WL 16716300, at *6 (D.S.C. Feb. 14, 2022) (finding that the ALJ's evaluation of the supportability factor was both proper under the regulations and supported by substantial evidence when the ALJ found that the doctor's “check-list style forms . . . only include[d] conclusions regarding functional limitations without any rationale for those conclusions,” the record contained few treatment records from the doctor since the alleged onsent date, and the opinions offered by the doctor were “generally inconsistent with the other objective evidence of record”); Edwards v. Saul, No. 1:20-cv-2280-SVH, 2021 WL 210852, at *14 (D.S.C. Jan. 20, 2021) (concluding that the ALJ's reasoning was sound when he found unpersuasive a medical opinion that the claimant was “‘a poor candidate for standing on her feet all day' and ‘a poor candidate for activities involving crawling, bending and stooping'” because the medical opinion “was vague and lacked a specific function-by-function analysis”). Indeed, the fact that Plaintiff, even now, has not suggested what sort of functional limitations Nurse Hucks believed Plaintiff had or what medical records support that functionality only highlights the lack of persuasiveness of Nurse Hucks' bare-bones response to the questionnaire.
Plaintiff also takes issue with the ALJ's comment regarding the form completed on April 21, 2021, “Of note, and despite the nature of this form, [Nurse Hucks] suggests that [Plaintiff's] ‘poor' ratings are due to headaches - not mental health issues.” [R. 23.] Plaintiff argues that Nurse Hucks was merely explaining her opinion on the only form she was given and that she should not be discredited for doing so.
In sum, the Court concludes that the ALJ's evaluation of Nurse Hucks' opinions was consistent with the applicable regulations and supported by substantial evidence. The Court therefore recommends that the ALJ's decision be affirmed.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the undersigned recommends that the decision of the Commissioner be AFFIRMED.
IT IS SO RECOMMENDED.