Opinion
C. A. 1:23-4764-BHH-SVH
03-28-2024
Terry M.,[1]Plaintiff, v. Martin O'Malley,[2]Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
SHIVA V. HODGES, UNITED STATES MAGISTRATE JUDGE
This appeal from a denial of social security benefits is before the court for a Report and Recommendation (“Report”) pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § i383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying her claim for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether he applied the proper legal standards. For the reasons that follow, the undersigned recommends the Commissioner's decision be affirmed.
I. Relevant Background
A. Procedural History
On October 8, 2020, Plaintiff protectively filed applications for DIB and SSI in which she alleged her disability began on August 13, 2020. Tr. at 194, 321-29. Her applications were denied initially and upon reconsideration. Tr. at 216-19, 222-25, 233-35, 236-40. On November 7, 2022, Plaintiff had a hearing before Administrative Law Judge (“ALJ”) Walter C. Herin, Jr. Tr. at 36-78 (Hr'g Tr.). The ALJ issued an unfavorable decision on January 10, 2023, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 15-35. Subsequently, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. Tr. at 1-7. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on September 22, 2023. [ECF No. 1].
B. Plaintiff's Background and Medical History
1. Background
Plaintiff was 58 years old at the time of the hearing. Tr. at 45. She completed high school and obtained phlebotomy and chaplaincy certificates. Tr. at 45-46. Her past relevant work (“PRW”) was as an injection molding 2 machine operator and a janitor. Tr. at 73. She alleges she has been unable to work since August 13, 2020. Tr. at 328.
2. Medical History a. Evidence Before ALJ
On April 2, 2020, Plaintiff reported anxiety and indicated she had been out of work since March 12, when she had a mental breakdown at work. Tr. at 435, 436. She indicated she had restarted Prozac for anxiety. Tr. at 436. Jandrette A. Rhoe, M.D. (“Dr. Rhoe”), noted Plaintiff was anxious and depressed and assessed major depressive disorder (“MDD”). Tr. at 437.
Plaintiff returned to Dr. Rhoe with complaints of joint pain in her left ankle, wrist, and right thumb on June 1, 2020. Tr. at 432. Dr. Rhoe ordered lab studies and prescribed Diclofenac Sodium 75 mg, delayed release. Tr. at 434.
Plaintiff presented to licensed professional counselor Paul Potylicki (“Counselor Potylicki”) for an initial counseling evaluation on June 12, 2020. Tr. at 453. She indicated she did not like being around people and missed being active in her church and with her fellow members. Tr. at 455. She endorsed homicidal thoughts, panic attacks, feeling overwhelmed, and not being as fast as she had been in the past. Id. Counselor Potylicki recorded normal findings on mental status exam (“MSE”), aside from homicidal thoughts. Tr. at 455-56. He assessed adjustment disorder with mixed 3 disturbance of emotions and conduct and recommended weekly counseling. Tr. at 456.
Plaintiff followed up with Counselor Potylicki on June 26, 2020. Tr. at 457. She discussed discovering her brother's body following his sudden death and her grief over his loss. Id. Counselor Potylicki observed Plaintiff to be agitated and anxious. Tr. at 459. He advised her to continue counseling. Id.
Plaintiff presented to mental health nurse practitioner Milissa Davis (“NP Davis”) for an initial psychiatric evaluation on June 29, 2020. Tr. at 440. She endorsed loss of interest in activities, feelings of worthlessness, decreased concentration, anxiety, restlessness, worry, fatigue, irritability, tension, soreness, and sleep problems. Tr. at 442. She indicated her symptoms had recently been exacerbated due her brother's death the prior week and a breakup with her boyfriend. Id. She described panic attacks and indicated Prozac was not lasting long enough to control her symptoms. Id. NP Davis recorded normal findings on psychiatric exam. Tr. at 443. She diagnosed adjustment disorder, anxiety state, and adjustment disorder with mixed disturbance of emotions and conduct. Id. She increased Prozac to 40 mg and prescribed Buspirone 15 mg and Clonazepam 0.5 mg. Id.
On July 10, 2020, Plaintiff reported her medication had improved her sleep, and she continued to grieve the loss of her brother. Tr. at 462. She expressed a desire to pursue training to become a hospital chaplain. Id. Counselor Potylicki observed Plaintiff to be anxious and agitated on MSE. Id. He recommended weekly counseling. Tr. at 463.
On July 29, 2020, Plaintiff admitted she had not picked up Buspirone, but indicated she felt better with the other medications. Tr. at 447. She indicated things on her job were “going much better and she stays to herself.” Id. NP Davis recorded normal findings on exam. Tr. at 447-48. She increased Buspirone to 15 mg twice a day, but advised Plaintiff to take half a tablet twice a day for the first two weeks and then to start taking a whole tablet twice a day. Tr. at 448.
On August 7, 2020, Plaintiff reported doing better physically, mentally, socially, and spiritually and indicated her medications had been working well. Tr. at 466. She indicated she continued to grieve the loss of her brother. Id. She expressed her opinion that schools should not reopen because of the COVID-19 pandemic and indicated she may not return to work in the beginning. Id. Counselor Potylicki noted agitated behavior and anxious affect on MSE, but indicated Plaintiff was “less anxious” than she had been. Id.
Plaintiff reported severe anxiety, depression, adjustment issues, poor mood, inability to deal with work pressure, and slight weight loss on August 31, 2020. Tr. at 451. She indicated she had “walked off” her job because she could not handle the pressure of her supervisor “picking with her.” Id. NP Davis increased Prozac to 60 mg and continued Clonazepam and Buspirone. Tr. at 452.
Plaintiff followed up with Counselor Potylicki on September 25, 2020. Tr. at 468. She indicated she had left her job because she “just had enough of working underneath her unreasonable boss.” Tr. at 470. She indicated she continued to volunteer at church and would apply for disability. Id. She discussed feelings regarding her brother's death. Id. Counselor Potylicki observed Plaintiff to be less anxious than she had been during the prior exam and noted normal observations on MSE. Id. He instructed Plaintiff to continue weekly counseling. Tr. at 471.
On December 1, 2020, Plaintiff reported elevated anxiety and feeling “a little down at times” due to multiple issues with finances. Tr. at 485. She requested her Prozac dose be increased. Id. NP Davis recorded normal findings on MSE. Id. She increased Prozac to 80 mg. Tr. at 486. Plaintiff's responses to the patient health questionnaire 9 (“PHQ-9”) yielded a score of 26, suggesting severe depression,and her responses to the general anxiety disorder 7 (“GAD-7”) yielded a score of 20, indicating severe anxiety. Tr. at 487-88, 491.
“The PHQ-9 is a self-administered version of the PRIME-MD diagnostic instrument for common mental disorders.” Deboard v. Colvin, C/A No. 3:162661, 2017 WL 510743 (S.D. W.Va. Jan. 18, 2017) (citing http://patient.infor/doctor/patient-health-questionnaire-phq-9), report and recommendation adopted by 2017 WL 510052 (Feb. 7, 2017). “It scores each of the nine [Diagnostic and Statistical Manual, Fourth Edition] criteria as ‘0' (not at all) to ‘3' (nearly every day).” Id. “The total of the nine scores is used to rate the severity of depression.” Id. “A total score of 0-4 is ‘none,' 5-9 is ‘mild,' 10-14 is ‘moderate,' 15-19 is ‘moderately severe,' and 20-27 is ‘severe.'” Id.
The GAD-7 “is a self-administered diagnostic instrument to measure anxiety severity.” Buechner v. Saul, C/A No. 20-379-wmc, 2021 WL 457610, at *2 n.3 (citing Robert L. Spitzer, et al, A Brief Measure for Assessing Generalized Anxiety Disorder: The GAD-7, Arch Intern Med. (2006), https://www.researchgate.net/publication/7064924). “A score of 0-4 represents a ‘minimal' level of anxiety; 5-9, “mild”; 10-14, “moderate” and 15-21, “severe.” Id. at 1095.
Plaintiff reported her mood was “not too good” on January 4, 2021. Tr. at 481. She endorsed elevated anxiety due to stressors related to the holidays and her brother's death and said she had difficulty leaving her house at times. Id. She indicated she was tolerating the increased dose of Prozac well. Id. NP Davis noted anxious affect on MSE. Id. She increased Prozac to 80 mg daily and continued Clonazepam and Buspirone. Tr. at 482.
Plaintiff complained of financial and employment-related stress on January 18, 2021. Tr. at 478. Counselor Potylicki noted Plaintiff was sad and anxious. Id. He assessed adjustment disorder, anxiety, nicotine dependence, arthritis, sleep difficulties, visual impairment, work stress, and homicidal thoughts at times. Id.
On January 28, 2021, Plaintiff indicated her medications had made her feel better, but her finances continued to be a challenge. Tr. at 475. She indicated a payment issue had prevented her from taking a training course for a ministry program with the police. Id. Counselor Potylicki noted Plaintiff was more upbeat, but still a little sad about her financial situation. Id.
On February 19, 2021, state agency medical consultant Blythe Farish-Ferrer, Ph.D. (“Dr. Farish-Ferrer”), reviewed the evidence and completed a psychiatric review technique (“PRT”). Tr. at 166-77, 182-84. She considered Listings 12.04 for depressive, bipolar, and related disorders and 12.06 for anxiety and obsessive-compulsive disorders and considered Plaintiff to have mild difficulties understanding, remembering, and applying information and adapting or managing oneself and moderate difficulties interacting with others and concentrating, persisting, or maintaining pace. Id. She provided a mental residual functional capacity (“RFC”) assessment noting Plaintiff's moderate limitations as to the following abilities: to carry out detailed instructions, to maintain attention and concentration for extended periods; to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; to work in coordination with or in proximity to others without being distracted by them; and to interact appropriately with the general public. Tr. at 170-74, 187-90. A second state agency psychological consultant, Silvie Ward, Ph.D. (“Dr. Ward”), considered the same listings and indicated the same degree of limitations in a PRT on June 22, 2022. Compare Tr. at 166-77, 182-84, with Tr. at 198-99 and 20910 Dr. Ward also assessed the same moderate limitations in a mental RFC assessment, except that she considered Plaintiff to be moderately limited in her abilities to complete a normal workday and workweek without interruptions from psychologically-based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. Compare Tr. at 170-74 and 187-90, with Tr. at 201-02 and 212-14.
Plaintiff presented to Dean R. Jacobs, M.D. (“Dr. Jacobs”), for a consultative visual exam on March 26, 2021. Tr. at 498-502. Dr. Jacobs noted Plaintiff had decreased right eye vision from refractive childhood amblyopia and would never see above counting fingers with the right eye, but had 20/25 visual acuity in her left eye with best correction. Tr. at 502. He opined that Plaintiff could drive and perform tasks while wearing glasses, but would be unable to perform jobs that required depth perception. Id.
Plaintiff reported having gained 14 pounds on March 29, 2021. Tr. at 557. She indicated her mood was “not so good,” as she had a falling out with her sister. Id. She endorsed a recent panic attack and uncontrolled anxiety. Id. NP Davis noted Plaintiff had a tearful affect. Tr. at 558. She instructed Plaintiff to continue Prozac and Buspirone, stop Clonazepam, start Vistaril 25 mg up to three times a day as needed, and start Wellbutrin 150 mg twice a day. Id.
On April 1, 2021, state agency medical consultant Ellen Humphries, M.D. (“Dr. Humphries”), completed a physical RFC assessment. Tr. At 1699 71, 185-87. She found Plaintiff had no exertional, postural, or manipulative limitations, but had visual limitations such that her depth perception was limited on the left and she could not perform work requiring very accurate depth perception. Tr. at 170. A second state agency medical consultant, Christopher Gates, M.D. (“Dr. Gates”), indicated the same physical RFC on July 21, 2022. Compare Tr. at 169-71, 185-87, with Tr. at 200-01, 211-12.
On May 20, 2021, Plaintiff reported weight gain and indicated she was continuing to deal with her brother's death. Tr. at 553. She said she was not speaking to her sister, but was spending time with a male friend “here and there.” Id. She endorsed knee pain and impaired vision and said she could not work due to elevated anxiety. Id. She denied recent panic attacks and said she used Vistaril when she felt anxious. Id. NP Davis recorded normal findings on MSE. Tr. at 554. She continued Plaintiff's medications. Id.
Plaintiff reported an allergic reaction to ant bites, irregular bowel movements, and constipation on June 2, 2021. Tr. at 545, 548. Her scores were zero on both the PHQ-2/PHQ-9 and the GAD-7. Tr. at 548. Nurse practitioner Sharrell Odom (“NP Odom”) noted multiple lesions and assessed slow transit constipation, lower leg insect bites, depression, and obesity. Tr. at 548-49. She prescribed Colace, Metamucil, and Benadryl. Tr. at 549.
On July 12, 2021, Plaintiff reported weight loss, adjustment disorder, anxiety, depression, nicotine dependence, and family and financial stress. Tr. at 543. She indicated she could not afford all of her medications and agreed to apply for prescription assistance. Id. Her score on the PHQ-9 was 21, consistent with severe depressive symptoms. Tr. at 542. NP Davis recorded normal findings on MSE. Tr. at 543. She continued Plaintiff's medications. Tr. at 543-44.
On September 17, 2021, Plaintiff reported slightly increased anxiety and indicated she would like to try Valium. Tr. at 537. NP Davis informed Plaintiff that she could not prescribe Benzodiazepines, but would prescribe Trazodone for difficulty sleeping. Id.
Plaintiff returned to Counselor Potylicki on November 11, 2021. Tr. at 529. She expressed a desire to proceed with chaplaincy training and agreed to call to obtain more information about training on upcoming dates. Tr. at 532. Counselor Potylicki noted Plaintiff was “more upbeat.” Id. He recommended Plaintiff continue with weekly counseling. Id.
On December 17, 2021, Plaintiff denied side effects from medications and reported doing well and having received her chaplaincy certificate the prior day. Tr. at 527. Her responses produced scores of 17 on the PHQ-9, consistent with moderately-severe symptoms, and 14 on the GAD-7, suggesting moderate symptoms. Id. NP Davis recorded normal findings on MSE. Id. She continued Prozac, Vistaril, and Buspirone and prescribed Trazodone 100 mg, up to two tablets as needed for sleep. Tr. At 524-25.
On March 18, 2022, Plaintiff reported weight gain and taking more Prozac than prescribed because she had “been going through a lot.” Tr. at 521. NP Davis instructed Plaintiff on tapering off Prozac and increasing Wellbutrin SR to 200 mg twice a day. Id. She increased Trazodone to up to 300 mg to address Plaintiff's complaint of continued sleep problems and continued Buspirone and Vistaril. Tr. at 521-22.
Plaintiff reported depression and anxiety were slightly improved on April 4, 2022. Tr. at 514. Her responses to the PHQ-2 and GAD-7 resulted in scores of zero on both, consistent with no symptoms of anxiety or depression. Id. NP Odom noted positive antinuclear antibody (“ANA”) test, anxiety, depression, obesity, and blood in urine. Tr. at 515. She ordered lab studies and a colonoscopy, prescribed Metformin and Cipro, and referred Plaintiff to a rheumatologist. Id.
On May 19, 2022, Plaintiff reported increased depression since tapering off Prozac and increasing Wellbutrin. Tr. at 509. She indicated she was living alone and caring for her daughter's cats, as her daughter had moved to Pennsylvania. Id. She said she was limited by her vision such that she could not drive at night or on the interstate. Id. Her responses were consistent with scores of 21 on the PHQ-9 and 19 on the GAD-7, indicative of severe depression and anxiety. Id. She endorsed decreased weight, being less sociable, decreased attention/concentration, decreased energy, and decreased 12 activities. Id. NP Davis stopped Wellbutrin, restarted Prozac at 40 mg, and continued Vistaril 25 mg up to three times a day, Buspirone 15 mg twice a day, and Trazodone 100 mg up to two times a day. Id.
Plaintiff presented to Joseph Parrish, D.O. (“Dr. Parrish”), for a consultative exam on July 9, 2022. Tr. at 571-74. She reported a history of breast cancer, low vision with right eye blindness, depression, pain in her right knee and right groin, diabetes, panic attacks, severe depression, suicidal thoughts, and anxiety. Tr. at 571. She endorsed difficulty balancing, walking, bending, and lying flat, using a cane due to poor balance, sitting and standing tolerances of 20 minutes each, ability to drive only short distances due to poor vision, and ability to walk a maximum of 50 feet. Tr. at 571, 572. Dr. Parrish observed Plaintiff to demonstrate low-average intelligence, rise from a seated position without assistance, demonstrate normal gait, walk without a cane, and move on and off the exam table quickly, but with pain. Tr. at 571, 573-74. He noted normal findings on MSE. Tr. at 573-74. He assessed right hip pain likely due to osteoarthritis, right knee pain that was likely referred pain, depression, and history of amblyopia. Tr. at 574. He stated Plaintiff would be unable to drive or operate heavy machinery due to poor vision, but could sit, walk, stand, balance, bend, lift, carry, reach forward and overhead, perform normal fine and gross motor movements with both hands, hold a simple conversation, respond appropriately to questions, and carry out and remember simple instructions. Id.
Plaintiff presented to Uday Doppalapudi, M.D. (“Dr. Doppalapudi”), for evaluation of mild dysuria, right knee pain, skin tags, and positive ANA on August 30, 2022. Tr. at 588. Her responses to the patient health questionnaire 2 (“PHQ-2”) and the GAD-7 produced scores of zero on both, consistent with no symptoms of depression or anxiety. Id. Dr. Doppalapudi noted skin tags and mild crepitus in Plaintiff's bilateral knees. Tr. at 588-89. He assessed dysuria with negative urinalysis, positive ANA with possible Sjogren's disease, right knee pain, anxiety, and depression. Tr. at 589. He ordered lab studies and referred Plaintiff to a rheumatologist. Id.
“The PHQ-2 is an instrument used for screening for the frequency of depressed mood and anhedonia over the past two weeks.” Wallace v. O'Malley, C/A No. 2:22-22, 2024 WL 209185, at *3 n.5 (W.D. Va. Jan. 16, 2024 (citing https://www.hiv.uw.edu/page/mental-health-screening/phq-2 (last visited Jan. 12, 2024)). “A PHQ-2 score ranges from zero to six.” Id. If the score is three or greater, major depressive disorder is likely.” Id.
b. Evidence Submitted to Appeals Council
Plaintiff reported depression, anxiety, 15-pound weight gain, and arthralgias/joint pain on October 25, 2022. Tr. at 143. Her score on the PHQ-2/PHQ-9 was zero, suggestive of no depressive symptoms. Id. A gynecological exam was normal. Id.
On November 29, 2022, Plaintiff reported 75% pain relief and decreased anxiety on Duloxetine. Tr. at 134. Her scores on the PHQ-2/PHQ-9 and GAD-7 were zero, indicative of no symptoms of depression or anxiety. Id. Dr. Doppalapudi recorded normal findings on exam, aside from skin tags and mild bilateral knee crepitus. Tr. at 134-35. He noted Plaintiff was scheduled to see a rheumatologist in January. Tr. at 134. He prescribed Atorvastatin for hyperlipidemia. Tr. at 135.
On January 5, 2023, Plaintiff presented to rheumatologist Sallie C. Giblin, M.D. (“Dr. Giblin”), for an initial visit. Tr. at 81. She reported diffuse joint pain involving her knees, ankles, right buttock and groin region, elbows, and wrists and indicated the pain made it difficult for her to sit and walk for extended periods. Id. She described one hour of morning stiffness in the joints of her hands and her knees. Id. She reported severe dry eyes and mouth, inability to produce tears, and an unpleasant taste most of the time. Id. Dr. Giblin noted lab studies showing positive ANA in 2018 and positive direct ANA and elevated SSA AB in April 2022. Id. She observed the following abnormalities on physical exam: dry oral mucosa with fissuring of the tongue; small white lesion to the left lateral aspect of the tongue; mild parotid fullness in the neck; tenderness in the upper arm and shoulder region; tenderness and mild swelling to the bilateral knees; and small hyperpigmented lesions to the medial aspect of both feet. Tr. at 82. Her 15 impressions were positive ANA, sicca, and polyarthralgia. Tr. at 83-84. She noted Plaintiff's symptoms could represent Sjogren's disease. Tr. at 84. She ordered additional lab studies and x-rays. Id.
X-rays of Plaintiff's bilateral knees showed joint space narrowing in the bilateral medial compartments and osteophytes on the lateral aspect of the right knee consistent with polyarthralgia. Tr. at 94. Lab studies showed abnormal ANA, extended nuclear antibody (“ENA”) profile, complete blood count (“CBC”), and erythrocyte sedimentation rate (“ESR”). Tr. at 85, 86, 89, 91.
On February 8, 2023, Plaintiff reported reduced pain and anxiety on Duloxetine. Tr. at 125. Her responses to the PHQ-2/PHQ-9 produced a score of zero, suggestive of no depressive symptoms. Id. Dr. Doppalapudi noted Dr. Giblin had indicated Plaintiff's Sjogren's antibody was borderline and her elevated ANA was not at the level typically seen with autoimmune diseases. Id. Plaintiff requested referrals to an ear, nose, and throat (“ENT”) practice and an orthopedist. Tr. at 126. Dr. Doppalapudi observed mild crepitus in Plaintiff's bilateral knees. Tr. at 127. He referred Plaintiff to an ENT practice for a lip biopsy to rule Sjogren's disease in or out. Id.
Plaintiff presented to Dr. Doppalapudi's office to follow up regarding the referral to the ENT practice on March 1, 2023. Tr. at 115. Her responses to the PHQ-2/PHQ-9 and GAD-7 produced scores of zero on both, indicating 16 no symptoms of depression or anxiety. Id. She reported Duloxetine had reduced her pain by 75% and helped her anxiety. Id. Dr. Doppalapudi indicated he would again refer Plaintiff to the ENT practice. Id.
On March 29, 2023, Plaintiff presented to Charlie J. Wofford, M.D. (“Dr. Wofford”), to establish care. Tr. at 104. She reported dry eyes and mouth and tenderness in her muscles and joints, but denied suicidal and homicidal ideations and panic attacks. Tr. at 108. Dr. Wofford recorded normal findings on exam, aside from noting a hyperpigmented, dry scalinglike patch on Plaintiff's left elbow. Tr. at 109. He assessed diabetes mellitus without complications, multiple joint pain, muscle pain, and skin eruption and ordered lab studies. Tr. at 109.
Plaintiff reported pain and fatigue on April 5, 2023. Tr. at 98. She described severe dry eyes, mouth, and skin and flare-ups of sudden sweat and fatigue. Id. She noted the ENT practice had failed to contact her for an appointment. Id. She said she had visited the orthopedist and been prescribed Meloxicam, but had been unable to fill it because she had not yet been approved for prescription assistance. Id. Dr. Giblin noted dry mucous membranes, mild parotid fullness, tenderness in the left upper arm and shoulder region, tenderness and crepitus to the bilateral knees, and small, hyperpigmented lesions to the medial aspect of both feet, but no synovitis or deformities in the upper extremities and normal mood and affect. Tr. At 99. She assessed primary osteoarthritis of the bilateral knees and positive ANA and sicca symptoms. Tr. at 100. She noted Plaintiff's workup had been inconclusive and that it was important for her to visit the ENT practice to obtain a salivary gland biopsy to rule Sjogren's syndrome in or out. Id. She stated there was no evidence of inflammatory arthritis. Id. She indicated Plaintiff's history of breast cancer might be the source of her low titer ANA and her history of radiation could be contributing to some of her symptoms. Id.
C. The Administrative Proceedings
1. The Administrative Hearing
a. Plaintiff's Testimony
Plaintiff testified she was divorced and lived alone. Tr. at 45. She said she was right-handed, 5'5” tall, and weighed 166 pounds. Tr. at 47. She confirmed she had a driver's license and said she drove approximately once every two days to places that included the grocery store, church, the pharmacy, the post office, Food Lion, the homes of family and friends, and a thrift store. Tr. at 48. She stated she was able to shower on her own twice a week and wash up at the sink on other days. Tr. at 49. She indicated she had some difficulty zipping dresses and fastening her bra on cloudy days, but could otherwise dress on her own. Id. She said she prepared sandwiches, used a microwave to prepare meals, and heated food on top of the stove. Tr. At 50. She stated she washed her clothes by hand and put them on hangers to dry because she could not afford to go to the laundromat. Id. She admitted she performed light mopping, sweeping, and vacuuming. Tr. at 51. She indicated she washed dishes by hand and took out her trash. Id. She denied cleaning the bathroom and said she no longer performed yardwork. Id.
Plaintiff testified she last worked as a custodial contractor at a school. Tr. at 52. She stated she had previously performed custodial work for two other janitorial contractors. Tr. at 54-55. She said that in 2006, 2007, and 2008, she worked for Lang MEKRA North America, where she made plastic-injected molding for the side mirrors on buses. Tr. at 54-55.
Plaintiff testified she developed panic attacks over the prior three-year period that kept her from returning to work. Tr. at 58. She stated the panic attacks occurred both when she was alone and when she was surrounded by others. Id. She said she felt overwhelmed and suffocated, lost her breath and her thoughts, and felt crippled. Id. She stated the panic attacks occurred daily and lasted for about 10 minutes at a time, although she had experienced one for over an hour. Id.
Plaintiff said her vision was the second problem that prevented her from working. Tr. at 60. She indicated her left eye was better than her right. Id. She said she avoided driving at night and only drove in familiar areas. Tr. at 61. She described pain and dryness in her left eye. Id.
Plaintiff testified an autoimmune problem caused her to experience dryness in her eyes and mouth and affected her blood vessels. Tr. at 62. She said she had psoriatic arthritis that affected her knees, elbows, fingers, back, and neck. Id. She indicated she was scheduled to visit a rheumatologist in January. Id.
Plaintiff testified she had been seeing a psychiatrist and psychologist at Eau Claire Behavioral Health since her panic attacks started in 2019. Id. She confirmed she took a total of seven pills daily, including Prozac. Tr. at 63.
Plaintiff stated she did not believe she could return to any of her PRW. Id. She said she received food stamps and financial support from family and friends. Id.
Plaintiff indicated she had resigned from her last job in August 2020 because she had been overwhelmed by being the only custodian on campus. Tr. at 63-64. She said she did not receive unemployment benefits. Tr. at 64. She denied using any over-the-counter or prescription eye drops. Tr. at 65. She said she had not been hospitalized for a week or longer due to depression, anxiety, or panic attacks. Id. She indicated she was taking Prozac as prescribed. Id.
Plaintiff testified she could see well enough to watch her favorite television show. Tr. at 66. She said she could read a book or newspaper with 20 her reading glasses. Id. She stated she had previously been diagnosed and treated for breast cancer and had undergone a mastectomy. Tr. at 67.
Plaintiff estimated she could walk half a block before needing to rest. Tr. at 69. She said she could likely stand for 15 minutes before her knees would start to buckle. Tr. at 70. She said her doctor at Ridgeway Family practice was treating her for psoriatic arthritis. Id. Plaintiff indicated she could sit for 15 minutes before needing to change positions. Id. She said she could lift about eight pounds. Id.
b. Vocational Expert Testimony
Vocational Expert (“VE”) Robert Grant reviewed the record and testified at the hearing. Tr. at 72-76. The VE categorized Plaintiff's PRW as an injection molding machine operator, Dictionary of Occupational Titles (“DOT”) No. 556.685-038, requiring light exertion according to the DOT and medium exertion as performed and a specific vocational preparation (“SVP”) of 2, and a janitor/industrial cleaner, DOT No. 381.687-018, requiring medium exertion and an SVP of 2. Tr. at 73. The ALJ asked the VE if Plaintiff's job as a school custodian might be classified differently because she had additional responsibilities to break up fights and maintain order. Tr. at 74. The VE said the job may be classified as some kind of composite job if Plaintiff had to exercise the additional duties 10% or more of the time. Id. The ALJ described a hypothetical individual of Plaintiff's vocational profile 21 who could: perform simple, uncomplicated tasks, maintain concentration, persistence, and pace on such tasks for at least two hours at a time; complete an eight-hour workday without special supervision; have no interaction with the public; engage in no climbing of ladders, ropes, or scaffolds; perform no tasks that require binocular vision or keen depth perception; have no exposure to unprotected heights; perform no operation of dangerous machinery or heavy equipment; and engage in no driving for commercial purposes. Tr. at 74-75. The VE testified the hypothetical individual would be unable to perform Plaintiff's PRW. Tr. at 75. The ALJ asked whether there were any other jobs in the economy that the hypothetical person could perform. Id. The VE identified jobs at the medium exertional level with an SVP of 2 as a dish washer, DOT No. 318.687-010, a metal furniture assembler, DOT No. 709.684-014, and a laundry worker, DOT No. 361.687018, with 160,000, 9,400, and 21,000 positions in the national economy, respectively. Id.
For a second hypothetical question, the ALJ asked the VE to consider an individual of Plaintiff's vocational profile who could: perform simple, uncomplicated tasks; maintain concentration, persistence, and pace on such tasks for at least two hours at a time; complete an eight-hour workday without special supervision; have no required interaction with the public; lift and carry up to 20 pounds occasionally and 10 pounds frequently; engage in 22 no more than frequent stooping, crouching, crawling, balancing, kneeling, and climbing of stairs or ramps and no climbing of ladders, ropes, or scaffolds; perform no tasks that require binocular vision or keen depth perception; and be assigned no tasks that require exposure to hazards such as unprotected heights, dangerous machinery, and driving for commercial purposes. Tr. at 75-76. The ALJ confirmed with the VE that the second hypothetical question would only produce a range of sedentary and light, unskilled work. Tr. at 76.
The ALJ asked the VE if his testimony contradicted the DOT. Id. The VE stated it did not. Id.
2. The ALJ's Findings
The ALJ made the following findings of fact and conclusions of law:
1. Claimant meets the insured status requirements of the Social Security Act through December 31, 2024.
2. Claimant has not engaged in substantial gainful activity (SGA) since August 13, 2020, the alleged onset date (AOD) (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. Claimant has the following severe impairments: vision deficit, depression, and anxiety (20 CFR 404.1520(c) and 416.920(c)).
4. Claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c) with additional non-exertional limitations. Specifically, claimant can lift and carry up to 50 pounds occasionally and 25 pounds
frequently. She can sit, stand, and walk for 6 hours each in an 8-hour day. Claimant cannot climb ladders, ropes, or scaffolds. She can perform tasks that do not require binocular vision or keen depth perception. She should have no required exposure to unprotected heights, dangerous machinery, or driving for work tasks. Claimant can perform simple, uncomplicated tasks, and can maintain concentration, persistence and pace on such tasks for at least 2 hours at a time to complete an 8-hour workday without special supervision. She should have no required interaction with the public.
6. Claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. Claimant was born on July 26, 1964 and was 56 years old, which is defined as an individual of advanced age, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
8. Claimant has at least a high school education (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not an issue in this case because claimant's past relevant work is unskilled (20 CFR 404.1568 and 416.968).
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 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from August 13, 2020, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).Tr. at 20-30.
II. Discussion
Plaintiff alleges the Commissioner erred for the following reasons:
1) the ALJ failed to provide adequate reasons to support his evaluation of Plaintiff's subjective complaints; and
2) the Appeals Council failed to properly evaluate new and material evidence.
The Commissioner counters that substantial evidence supports the ALJ's findings and that the ALJ committed no legal error in his decision.
A. Legal Framework
1. The Commissioner's Determination-of-Disability Process
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a “disability.” 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability 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 at least 12 consecutive months.42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983) (discussing considerations and noting “need for efficiency” in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity; (2) whether she has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents her from doing substantial gainful employment. See 20 C.F.R. §§ 404.1520, 416.920. These considerations are sometimes referred to as the “five steps” of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).
The Commissioner's regulations include an extensive list of impairments (“the Listings” or “Listed impairments”) the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. §§ 404.1525, 416.925. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, she will be found disabled without further assessment. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that her impairments match several specific criteria or are “at least equal in severity and duration to [those] criteria.” 20 C.F.R. §§ 404.1526, 416.926; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's past relevant work to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. §§ 404.1520(h), 416.920(h).
A claimant is not disabled within the meaning of the Act if she can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, §§ 404.1520(a), (b), 416.920(a), (b); Social Security Ruling (“SSR”) 82-62 (1982). The claimant bears the burden of establishing her inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that she is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of “any final decision of the Commissioner [] made after a hearing to which he was a 27 party.” 42 U.S.C. § 405(g). The scope of that federal court review is narrowly-tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to “try these cases de novo or resolve mere conflicts in the evidence.” Vtek v. Finch, 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. “Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that his conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed “even should the court disagree with such decision.” Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
B. Analysis
1. Subjective Allegations
Plaintiff argues the ALJ failed to provide adequate reasons for declining to accept her subjective allegations. [ECF No. 13 at 16-19]. She alleges the ALJ erred in finding her problems were acute and controlled. Id. at 18. She maintains the ALJ appeared to be “looking for a certain level of objective evidence” to support her subjective complaints. Id. She submits the ALJ did not properly evaluate her allegations as to her mental impairments in light of the Fourth Circuit's recent decision in Shelley C. v. Commissioner of Social Security Administration, 61 F.4th 341 (4th Cir. 2023). Id. at 18-19. She claims that, like Shelley C., she suffered from chronic depression, a condition that does not produce objective medical evidence. [ECF No. 15 at 2]. She maintains the ALJ noted she was “feeling better” and had “okay” mood, but ignored that she still required medication adjustments and increased doses. Id. at 3.
The Commissioner argues substantial evidence supports the ALJ's evaluation of Plaintiff's subjective complaints. [ECF No. 14 at 12-17]. He maintains the ALJ did not discount Plaintiff's allegations based on objective evidence alone, but, instead, explained that Plaintiff's allegations were inconsistent with her reports to her providers, her reported activities, and the state agency consultants' opinions. Id. at 12-14, 16. He claims the ALJ did 29 not cherry-pick the record and noted evidence that supported and refuted Plaintiff's claims. Id. at 14. He contends Plaintiff failed to make any particularized argument that the ALJ erred in his evaluation of her mental health symptoms. Id. at 14-15.
“[A]n ALJ follows a two-step analysis when considering a claimant's subjective statements about impairments and symptoms.” Lewis v. Berryhill, 858 F.3d 858, 865-66 (4th Cir. 2017) (citing 20 C.F.R. § 404.1529(b), (c)). “First, the ALJ looks for objective medical evidence showing a condition that could reasonably produce the alleged symptoms.” Id. at 866 (citing 20 C.F.R. § 404.1529(b)). If he concludes the claimant's impairment could reasonably produce the symptoms she alleges, he proceeds to the second step, which requires him to “evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's ability to perform basic work activities.” Id. (citing 20 C.F.R. § 404.1529(c)).
If the ALJ proceeds to the second step, he must consider “whether there are any inconsistencies in the evidence and the extent to which there are any conflicts between [the claimant's] statements and the rest of the evidence.” 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4). Pursuant to this inquiry, the ALJ should consider “statements from the individual, medical sources, and any other sources that might have information about the claimant's symptoms, including agency personnel,” as well as the following factors:
(1) the claimant's ADLs;
(2) the location, duration, frequency, and intensity of the claimant's pain or other symptoms;
(3) any precipitating or aggravating factors;
(4) the type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken to alleviate pain or other symptoms;
(5) treatment, other than medication, the claimant receives or has received for relief of pain or other symptoms;
(6) any measures the claimant uses or has used to relieve pain or other symptoms (e.g., lying flat on his back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and
(7) other factors concerning the claimant's functional limitations and restrictions due to pain or other symptoms.20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); SSR 16-3p, 2017 WL 5180304, at *6.
The ALJ must explain which of the claimant's alleged symptoms he considered “consistent or inconsistent with the evidence in [the] record and how [his] evaluation of the individual's symptoms led to [his] conclusions.” SSR 16-3p, 2017 WL 5180304, at *8. “The determination or 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.” Id. at *10. The ALJ must “build an accurate and logical bridge” between the evidence and his conclusion as to the intensity, persistence, and limiting effects of the claimant's symptoms. Monroe, 826 F.3d at 189.
The ALJ must support the RFC assessment with a narrative discussion describing how all the relevant evidence in the case record supports each conclusion and must cite “specific medical facts (e.g., laboratory findings) and non-medical evidence (e.g., daily activities, observations).” SSR 96-8p, 1996 WL 374184, at *7 (1996). He must explain how material inconsistencies or ambiguities in the record were considered and resolved. Id. “An ALJ has an obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding.” Lewis, 858 F.3d at 869. However, “there is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision.” Reid v. Commissioner of Social Sec., 769 F.3d 861, 865 (quoting Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (per curiam); accord Russell v. Chater, No. 94-2371, 1995 WL 417576, at *3 (4th Cir. July 7, 1995) (per curiam) (explaining the court had not “establish[ed] an inflexible rule requiring an exhaustive point-by-point discussion in all cases”)).
Because the ALJ found Plaintiff's impairments “could reasonably be expected to cause the alleged symptoms,” he was required to proceed to the second step and “evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit[ed her] ability to perform basic work activities.” 20 C.F.R. § 404.1529(b), (c), § 416.929(b), (c). At the second step, the ALJ considered “whether there [were] any inconsistencies in the evidence and the extent to which there [were] any conflicts between [the claimant's] statements and the rest of the evidence” in accordance with C.F.R. § 404.1529(c)(4) and § 416.929(c)(4). He concluded Plaintiff's “statements concerning the intensity, persistence, and limiting effects of these symptoms [were] not entirely consistent with the medical evidence and other evidence in the record.” Tr. at 24.
Plaintiff limits her argument to the ALJ's consideration of her allegations as to her mental impairments, and the undersigned similarly limits its review. The ALJ wrote the following concerning Plaintiff's mental allegations: “While claimant testified panic attacks are her worst problems, she did not regularly report them to her mental health provider. Moreover, mental health treatment records do not document particularly remarkable findings.” Tr. at 25. He further explained:
Mental health treatment records indicate the claimant has received counseling and medication management and document diagnoses of generalized anxiety disorder and adjustment
disorder with mixed anxiety and depressed mood. Claimant's reports to her mental health provider focused on grief related to the unexpected death of her brother, in addition to a rift with her sister. Claimant made some reports of depressed mood and anxiety relating to grief, her financial situation, and her daughter moving out of state. She also made some complaints of problems sleeping, but not particularly often (Exhibits 6F and 9F). Claimant reported a panic attack at an appointment in March 2021 (Exhibit 6F), but otherwise made few, if any, complaints of panic attacks. She specifically denied panic attacks in May 2021 (Exhibit 6F).Id.
The above explanation reflects the ALJ's consideration of Plaintiff's statements to her providers regarding the duration, frequency, and intensity of her symptoms and factors that precipitated and aggravated her symptoms. He appropriately considered these factors in evaluating whether there were conflicts between Plaintiff's allegations and the rest of the evidence. As the ALJ noted, Plaintiff's testimony as to her panic attacks was inconsistent with her reports in the treatment records. Despite having testified to experiencing daily panic attacks lasting from 10 minutes to an hour at a time, Tr. at 58, the ALJ pointed out that Plaintiff did not regularly complain of panic attacks to her providers. Plaintiff reported panic attacks during several medical visits prior to her alleged onset date (“AOD”) of disability, but only twice after her AOD. As the ALJ noted, on March 29, 2021, Plaintiff reported she experienced “a panic attack.” See Tr. at 557. However, she did not indicate she had been experiencing frequent panic attacks, and she denied panic 34 attacks at the next visit. See Tr. at 553. On July 9, 2022, Plaintiff informed Dr. Parrish of a history of panic attacks and “[d]escribe[d] events in which she begins breathing rapidly and sweating at work when she was overwhelmed” and “state[d] that completely resolve[d] after a [couple minutes] of being alone and out of the situations.” Tr. at 571. She further explained “this has happened multiple times at work and was unable to function at work.” Id. The information Plaintiff related to Dr. Parrish did not suggest she was experiencing regular panic attacks as of July 2022, but that she had experienced panic attacks prior to her AOD.
The record supports the ALJ's finding that situational stressors, including the death of Plaintiff's brother, a conflict with her sister, her financial problems, and her daughter's move had exacerbated her symptoms during the relevant period. Therefore, the ALJ reasonably concluded Plaintiff's statements to her treating providers did not support the degree of limitation she alleged in her testimony.
The ALJ considered the medications Plaintiff's providers prescribed, their effectiveness and side effects, and the other types of treatment she received, including counseling services, in accordance with the applicable regulations and SSR. He wrote:
Claimant's mental health provider prescribed various psychiatric medications, making adjustments to her medication regimen when deemed necessary. Medications prescribed to claimant have
included Clonazepam, Wellbutrin, Vistaril, Fluoxetine, Buspirone, and Trazodone. These medications appear to have provided some benefit. In particular, claimant reported feeling better and more upbeat with medications in January 2021. In July 2021, September 2021, and December 21, claimant described her mood as “okay.” She reported doing “okay” with sleep in September 2021, and doing “okay” in March 2022. Claimant also reported her sleep to be “okay” with Trazodone in May 2022 (Exhibit 6F).Id. Contrary to Plaintiff's assertion, the ALJ did not cherry-pick evidence as to her medications and treatment. He acknowledged the adjustments to Plaintiff's medications, but concluded, consistent with the evidence, that the medication changes effectively decreased her symptoms.
The ALJ appropriately considered Plaintiff's ADLs in accordance with 20 C.F.R. § 404.1529(c)(3) and § 416.929(c)(3) and SSR 16-3. He wrote:
Lending additional support to a conclusion that claimant does not have disabling limitations are her reports of her activities .... Additionally, claimant testified that she lives alone, she drives every two days, and performs chores such as simple meal preparation, hanging up her clothes, mopping, sweeping, vacuuming, washing dishes, and taking the trash out. Claimant further testified that . . . in addition to going grocery shopping, she attends church, and visits family and friends. Claimant told her mental health provider in January 2021 that she had a goal to go into ministry with the police, and by December 2021 she had completed chaplain training and had received her certificate (Exhibit 6F/22, 55-56).Tr. at 25-26. The record supports the ALJ's conclusion that Plaintiff was generally able to complete household chores and other ADLs, visit with family and friends, and obtain a chaplaincy certificate.
The ALJ considered statements from the medical sources who opined as to Plaintiff's abilities and functional limitations. He wrote the following as to the state agency psychological consultants' opinions:
I am persuaded by the prior administrative findings of the State Agency psychological consultants at 1A, 2A, 5A, and 8A that claimant can attend to and perform simple tasks for two hours at a time and that she would have difficulty working with the general public. These findings are supported by the evidence referenced by the consultants. They are also consistent with the overall evidence at the hearing level, which does not document regular significantly abnormal mental status findings but which reflects claimant has received mental health treatment for symptoms relating to anxiety and depression. The receipt of such treatment reasonably supports her limitation to simple, uncomplicated work and to having work which does not require interaction with the public. Accordingly, the RFC includes mental limitations accounting for the findings of the psychological consultants.Tr. at 26. The ALJ was “partially persuaded” by Dr. Parrish's opinion that Plaintiff “would be able to hold a simple conversation, respond appropriately to questions, and carry out and remember simple instructions (Exhibit 7F).” Tr. at 27. He wrote:
Dr. Parrish's opinion is supported by his findings of normal speech, intact recent and remote memory, normal mood, and interaction with him during the examination. Notably, he reported her to have good insight and low-average intelligence based on her vocabulary and conversational quality. Dr. Parrish's opinion is also generally consistent with mental health treatment notes which do not document abnormal speech, memory, or attention/concentration findings (Exhibits 6F and 9F).Id. He explained how he had considered the opinions in assessing Plaintiff's RFC and how they, along with the other evidence, supported particular functional limitations.
The ALJ further explained his consideration of Plaintiff's mental impairments in the RFC assessment as follows:
In particular, claimant's ability to perform simple, uncomplicated tasks and to maintain concentration, persistence and pace on such tasks for at least 2 hours at a time to complete an 8-hour workday without special supervision is supported by the lack of abnormal cognitive findings in the medical evidence. Specifically, it is supported by findings in mental health treatment notes of logical thought processes, unremarkable thought content, and that claimant is oriented to person, place and time (Exhibit 6F and 9F). The limitation to simple, uncomplicated tasks accounts for the fact that Plaintiff has received mental health treatment relating to anxiety and depression. Also supporting claimant's ability to work within such mental demands is the fact that she completed volunteer chaplain training, for which she received a certificate during the relevant period in December 2021 (Exhibit 6F/22).
As for claimant's social functioning, claimant reported few, if any, problems in this area to treating providers, other than describing a rift with her sister. Treatment notes do not document observations that claimant exhibited difficulty relating to others in the clinical setting. Mental health treatment records most often document claimant to have a euthymic, pleasant affect and they consistently document cooperative behavior and good eye contact (Exhibits 6F and 9F). Notably, claimant testified that she goes to the grocery store and to church and that she visits family and friends. She told her mental health provider in January 2021 that she recently spent time with her ex-boyfriend, and in May 2021, she told her mental health provider that she had spent time with a male friend (Exhibit 6F). Nonetheless, claimant's receipt of mental health treatment relating to anxiety and
depression reasonably supports the finding that she can have no required interaction with the public.Tr. at 27-28.
The ALJ's explanation allows the court to ascertain which of Plaintiff's allegations he accepted and rejected, what evidence he relied on in accepting and rejecting Plaintiff's allegations, and how the evidence supports the RFC assessment. He referenced “specific medical facts (e.g., laboratory findings) and non-medical evidence (e.g., daily activities, observations)” in accordance with SSR 96-8p and “buil[t] an accurate and logical bridge” between the evidence and his conclusion as to the intensity, persistence, and limiting effects of the claimant's symptoms as required by Fourth Circuit precedent.
Contrary to Plaintiff's allegation, the ALJ's explanation does not run afoul of the Fourth Circuit's decision in Shelley C. The court held that “depression-particularly chronic depression-is one of those diseases” in which ALJs cannot rely upon the absence of objective medical evidence to discredit a claimant's subjective complaints regarding symptoms. Shelley C., 961 F.4th at 361. It wrote: “The ALJ's legal error is clear: he could not dismiss Shelley C.'s subjective complaints based entirely upon the belief that they were not corroborated by the record's medical evidence.” 61 F.4th at 360 (emphasis in original). Here, although the ALJ referenced mostly normal observations by Plaintiff's providers on MSE, he did not rely entirely on such medical evidence. As discussed above, the ALJ considered Plaintiff's statements to her providers, her medications and treatment history, her ADLs and other activities, and the consultative examiners' and medical consultant's impressions and opinions. In Shelley C., the court noted “the record contain[ed] no shortage” of subjective evidence to demonstrate the claimant's symptoms were “sufficiently persistent and severe to support a disability finding.” Id. at 360-61. The record in this case did not include nearly as robust a record of Plaintiff's subjective allegations. Instead, as the ALJ noted, the record contained Plaintiff's reports of increased symptoms at times, but those symptoms were generally increased based on situational stressors and improved through medication adjustments and, during a number of treatment visits, Plaintiff reported feeling “okay” or having few or no symptoms.
In light of the foregoing, the undersigned recommends the court find substantial evidence supports the ALJ's assessment of Plaintiff's subjective allegations.
2. Evidence Submitted to Appeals Council
Plaintiff also argues the Appeals Council erred in failing to remand the case to the ALJ for consideration of new and material evidence. [ECF No. 13 at 19-24]. She maintains “the new evidence in this case certainly might have affected the fact-finder's decision.” Id. at 20. She specifically notes the new 40 evidence refutes the ALJ's finding that the record lacked “imaging studies demonstrating remarkable abnormalities in claimant's joints.” Id. at 23. She asserts the Appeals Council did not reject the new evidence due to lack of good cause. [ECF No. 15 at 6-9]. She contends there is “a linkage between the post-period evidence” and her prior complaints. Id. at 10.
The Commissioner argues the Appeals Council properly concluded the evidence submitted after the ALJ's decision did not provide a basis for remand under the applicable regulations. [ECF No. 14 at 17]. He asserts Plaintiff has failed to show the evidence was new, material, showed a reasonable probability of changing the outcome of the hearing decision, and there existed good cause, as defined by the regulation, for failure to submit the evidence to the ALJ, as required by 20 C.F.R. § 404.977 and § 416.1477 Id. at 17-20. He notes some of the evidence Plaintiff submitted to the Appeals Council was available prior to the ALJ's decision, and Plaintiff has provided no explanation for her failure to submit it earlier. Id. at 21. He claims Plaintiff has not adequately explained how the evidence submitted to the Appeals Council would likely change the outcome of the case. Id. at 22. He submits Plaintiff cannot show good cause for her failure to submit the evidence earlier. Id. at 22-23.
If a claimant is dissatisfied with an ALJ's decision, she may request review of the decision from the Appeals Council. 20 C.F.R. § 404.967, § 41 416.1467. “The Appeals Council may deny or dismiss the request for review, or it may grant the request and either issue a decision or remand the case to an administrative law judge.” Id. The Appeals Council will grant a claimant's request for review if, “[s]ubject to paragraph (b) of this section, the Appeals Council receives additional evidence that is new, material, and relates the period on or before the date of the hearing decision, and there is a reasonable probability that the additional evidence would change the outcome of the decision.” 20 C.F.R. §§ 404.970(a)(5), 416.1470(a)(5). “Evidence is new ‘if it is not duplicative or cumulative' and is material if there is ‘a reasonable possibility that the new evidence would have changed the outcome.'” Meyer, 662 F.3d at 705 (quoting Wilkins v. Sec'y, Dep't of Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991)).
The notice of Appeals Council action addresses the evidence Plaintiff submitted to the Appeals Council as follows:
You submitted notes from Lexington Rheumatology, dated January 5, 2023 through April 5, 2023 (24 pages), and Ridgeway Family Practice, dated August 30, 2022 through March 29, 2023 (59 pages). We find this evidence does not show a reasonable probability that it would change the outcome of the decision. We did not exhibit this evidence.Tr. at 2.
The Commissioner claims Plaintiff did not argue that she had good cause for failing to submit the evidence prior to the hearing. The court's review is generally limited to the reasons the Appeals Council provided for rejecting the evidence. Although public policy concerns weigh against consideration of evidence submitted to the Appeals Council that was available to the claimant prior to the ALJ's decision, the court is not permitted to accept counsel's post-hoc justifications where they are not supported in the record. See Arakas v. Commissioner, Social Security Administration, 983 F.3d 83 (4th Cir. 2020) (“The Commissioner seeks to frame the ALJ's statement as an attempt to resolve the alleged inconsistency between Dr. Harper's assertion that the MRI showed evidence of chronic muscle spasm and the fact that the radiologist who read the MRI did not note such evidence. We reject this argument as a meritless post-hoc justification.”) (citing Radford v. Colvin, 734 F.3d 288, 294 (4th Cir. 2013) (rejecting the Commissioner's attempt to justify the ALJ's denial of disability benefits as a post-hoc rationalization); Burlington Truck Lines, Inc. v. United States, 371 U.S. 156 (1962) (“[C]ourts may not accept appellate council's post hoc rationalizations for agency action.”) (citing SEC v. Chenery Corp., 332 U.S. 194 (1947)); Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999) (applying Burlington Truck in a Social Security disability case)).
The Appeals Council did not reject the evidence for failure to show good cause for its late filing. Pursuant to 20 C.F.R. § 404.970(c) and § 416.1470(c), if “the Appeals Council does not find you had good cause for missing the 43 deadline to submit the evidence,” it “will send you a notice than explains why it did not accept the additional evidence and advises you of your right to file a new application.” The record includes no notice indicating the Appeals Council did not accept the additional evidence and advising Plaintiff of her right to file a new application. See Tr. at 1-7. Although the Appeals Council did not exhibit the additional evidence, it declined to do so because it found the evidence “d[id] not show a reasonable probability that it would change the outcome of the decision,” Tr. at 2, not because Plaintiff failed to show good cause for her failure to submit it earlier.
Given the Appeals Council's rationale, the undersigned has considered whether substantial evidence supports its conclusion that the evidence submitted post-hearing did not show a reasonable probability that it would change the outcome of the decision. “[T]he touchstone of the Fourth Circuit's analysis has been whether the record, combined with the additional evidence, ‘provides an adequate explanation of [the Commissioner's] decision.'” Turner v. Colvin, C/A No. 0:14-228-DCN, 2015 WL 751522, at *5 (D.S.C. Feb. 23, 2015) (citing Meyer, 662 F.3d at 707 (quoting DeLoatche v. Heckler, 715 F.3d 148, 150 (4th Cir. 1983))). The court looks to the ALJ's decision to determine whether it continues to be supported by substantial evidence, despite the additional evidence the Appeals Council deemed immaterial. See Meyer, 662 F.3d at 707. The court should affirm the ALJ's decision where “substantial 44 evidence supports the ALJ's findings” with the addition of the evidence submitted to the Appeals Council. Turner, 2015 WL 751522, at *5. (citing Smith v. Chater, 99 F.3d 635, 638-39 (4th Cir. 1996)). It should remand the case for further fact finding if it cannot determine whether substantial evidence supports the ALJ's denial of benefits with inclusion of the additional evidence. Id.
The Fourth Circuit has generally recognized the admissibility of evidence from earlier periods where there was linkage between the earlier period and the later records. See Bird v. Commissioner, 699 F.3d 337, 341 (4th Cir. 2012) (providing “retrospective consideration of evidence is appropriate when ‘the record is not so persuasive as to rule out any linkage' of the final condition of the claimant with his earlier symptoms”) (quoting Moore v. Finch, 418 F.2d 1224, 1226 (4th Cir. 1969)). Plaintiff argues the x-ray evidence obtained after the ALJ's decision was linked to her complaints prior to the ALJ's decision.
In his decision, the ALJ addressed Plaintiff's allegations that she had been diagnosed with an autoimmune disorder and psoriatic arthritis as follows:
Primary care treatment notes do not regularly document specific complaints of bothersome joint pain. Nonetheless, April 2022 laboratory results showed a positive ANA, Sjogren, and ss-A. In August 2022, based on these results, and upon claimant's reported right knee pain and request for referral, claimant's
primary care provider referred her to a rheumatologist. The primary care provider noted, however, that claimant's right knee pain was likely osteoarthritis (Exhibit 9F/6). Claimant's treatment records otherwise indicate she is taking medication for “arthritis,” and they document prescriptions for Diclofenac. Claimant, however, has not routinely had laboratory results indicative of autoimmune disease. The record does not contain a diagnosis of psoriatic arthritis. Musculoskeletal examinations have been essentially benign, and the evidence does not contain imaging studies demonstrating remarkable abnormalities in claimant's joints. Nonetheless, the limitation to medium work in the residual functional capacity accounts for claimant's testimony of joint pain.Tr. at 21.
Upon considering exertional demands in the RFC assessment, the ALJ wrote the following:
Claimant's ability to perform the exertional demands of medium work is supported by the overall evidence. In particular, despite claimant's testimony regarding joint pain and regarding such limited abilities with regard to walking, standing, sitting, and lifting, treatment notes do not document abnormal strength or gait findings. To the contrary, primary care treatment records document claimant to have normal strength and gait as well as intact sensation (Exhibits 2F and 9F).
Treatment records do not document regular findings of reduced range of motion in any plane (Exhibit 2F and 9F). In July 2022, Dr. Parrish documented normal range of motion in the lumbar spine, knees, and hips (Exhibit 7F).Tr. at 28.
The evidence submitted to the Appeals Council includes x-rays showing joint space narrowing in the bilateral medial compartments and osteophytes on the lateral aspect of the right knee consistent with polyarthralgia. Tr. At 94. Because the record before the ALJ included evidence of suspected osteoarthritis, the undersigned recognizes linkage between the earlier period and the x-ray results.
Despite having noted “the evidence d[id] not contain imaging studies demonstrating remarkable abnormalities in claimant's joints” Tr. at 21, the ALJ included a restriction for work at the medium exertional level in the RFC assessment to account for Plaintiff's joint pain. He acknowledged Plaintiff's primary care provider's assessment of osteoarthritis. Id. Because the ALJ credited evidence of osteoarthritis, despite the absence of imaging confirming it, the undersigned considers it unlikely that subsequent evidence of unquantified joint space narrowing in the knees and osteophyte formation would change the outcome of the decision.
Such a conclusion is further supported by comparing the remainder of the records to the ALJ's prior explanation. The ALJ noted the record contained mostly benign musculoskeletal findings, including normal range of motion (“ROM”), strength, sensation, and gait. See Tr. at 21, 28. The records submitted to the Appeals Council include Dr. Wofford's description of Plaintiff as ambulating normally with normal motor strength, tone, ROM, gait, and station, Tr. at 109, and Dr. Doppalapudi's observation of mild crepitus of the bilateral knees, but normal motor strength, ROM, and ambulation. Tr. at 127, 134-35, 154. Because the records submitted to the 47
Appeals Council continue to demonstrate normal ROM, strength, and gait, it is unlikely they would result in the ALJ assessing a different RFC.
The undersigned concludes the ALJ's decision is supported by substantial evidence even with the inclusion of the evidence submitted to the Appeals Council. Therefore, it was unnecessary for the Appeals Council to remand the case to the ALJ for consideration of that evidence.
The records submitted to the Appeals Council reflect a lack of allegations as to symptoms of depression and anxiety, further bolstering the ALJ's finding that Plaintiff's subjective allegations were not entirely consistent with her statements to her providers.
III. Conclusion and Recommendation
The court's function is not to substitute its own judgment for that of the Commissioner, but to determine whether his decision is supported as a matter of fact and law. Based on the foregoing, the undersigned recommends the Commissioner's decision be affirmed.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).