Opinion
C/A No.: 1:19-770-TMC-SVH
04-10-2020
Carol Sue Vereen, Plaintiff, v. Andrew M. Saul, Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
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 § 1383(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 that the Commissioner's decision be reversed and remanded for further proceedings as set forth herein. I. Relevant Background
A. Procedural History
On February 1, 2014, Plaintiff protectively filed applications for DIB and SSI in which she alleged her disability began on January 10, 2014. Tr. at 241. Her applications were denied initially and upon reconsideration. Tr. at 120, 129, 133. On November 4, 2015, Plaintiff had a hearing before Administrative Law Judge ("ALJ") Edward T. Morriss. Tr. at 46-61 (Hr'g Tr.). The ALJ issued an unfavorable decision on January 8, 2016, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 99-114. On September 11, 2017, the Appeals Council issued an order remanding the case to the ALJ for further proceedings. Tr. at 115-18. Plaintiff appeared at a second hearing on March 29, 2018. Tr. at 29-45. The ALJ issued a second unfavorable decision on July 13, 2018, again denying Plaintiff's claim. Tr. at 11-28. 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 1-5. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on March 14, 2019. [ECF No. 1].
B. Plaintiff's Background and Medical History
1. Background
Plaintiff was 57 years old at the 2015 hearing and 61 years old at the 2018 hearing. Tr. at 32, 49. She completed the eleventh grade in regular classes and did not obtain a high school equivalency certificate. Id. Her past relevant work ("PRW") was as a housekeeper. Tr. at 50. She alleges she has been unable to work since January 10, 2014. Tr. at 272.
2. Medical History
On January 19, 2014, Plaintiff presented to the emergency room at Conway Medical Center with a complaint of right hip pain that had begun one day prior. Tr. at 349. She described the pain as moderate and exacerbated by movement. Id. Charles Tarbert, M.D. ("Dr. Tarbert"), noted limited active and passive range of motion ("ROM") of the right hip secondary to pain. Tr. at 350. X-rays showed a three-centimeter area of mixed lucency and sclerosis inferior to the acetabulum on the right that could represent an area of previous trauma or a more aggressive process such as neoplasm. Tr. at 352. Dr. Tarbert discussed the x-ray findings, directed Plaintiff to follow up at Little River Medical Center, and prescribed Vicodin 5-325 mg. Tr. at 350-51.
Plaintiff presented to Kenneth Crutcher, M.D. ("Dr. Crutcher"), for right hip pain on February 4, 2014. Tr. at 382. She complained of increasing pain and discomfort that prevented her from working. Id. Dr. Crutcher noted Plaintiff's other diagnoses included hypertension, hyperlipidemia, and diabetes mellitus. Tr. at 383. Plaintiff was 65 inches tall, weighed 176 pounds, and had a body mass index ("BMI") of 29.3 kg/m². Id. Dr. Crutcher observed Plaintiff's hips to show abnormalities on exam. Id. He noted tenderness to palpation and pain on external rotation and flexion of the right hip. Id. He referred Plaintiff to Conway Hospital with a request that she receive approval for magnetic resonance imaging ("MRI") of the right hip with contrast as an indigent patient. Tr. at 384. He prescribed Hydrocodone-Acetaminophen 5-325 mg. Id.
Plaintiff presented to Linda Buster, FNP ("NP Buster"), for right hip pain on March 11, 2014. Tr. at 379. She requested NP Buster provide a note for the Department of Social Services ("DSS") stating she had been out of work since January 19, 2014, and complete a form for her loan company. Id. NP Buster noted Plaintiff was employed by Hampton Inn, but had been unable to return to work because of right hip pain that was worsened by weightbearing. Id. On physical exam, NP Buster observed right hip tenderness to palpation and pain on external rotation and flexion. Tr. at 380. She referred Plaintiff for MRI without contrast, as it was approved for funding. Tr. at 381. She indicated Plaintiff would continue to remain out of work. Id. She completed a form for Plaintiff's loan company and a statement for DSS. Id.
On March 14, 2014, an MRI of Plaintiff's right hip showed tendinosis of the right hamstring attachment with some undersurface tearing. Tr. at 374.
Plaintiff presented to consultative examiner Jomar S. Roberts, I, M.D. ("Dr. Roberts"), for a comprehensive orthopedic examination on April 5, 2014. Tr. at 386-89. She complained of right hip pain that she rated as a seven to eight of 10. Tr. at 386. She reported being able to feed and dress herself, stand for five minutes at a time and 30 minutes in an eight-hour workday, walk for 20 yards on level ground, sit for 20 minutes, lift two pounds, and drive a car. Tr. at 386-87. She denied sweeping, mopping, vacuuming, cooking, washing, dishes, shopping, climbing stairs, and mowing grass. Tr. at 387. Dr. Roberts observed Plaintiff to be obese and in no acute distress. Id. He stated Plaintiff ambulated without difficulty and without an assistive device and demonstrated no difficulty getting on and off the exam table, up and out of the exam chair, and dressing and undressing for examination. Id. He noted Plaintiff's visual acuity was 20/30 in both eyes with glasses. Tr. at 388. He indicated Plaintiff demonstrated normal gait, grip strength, ROM, straight-leg raise ("SLR"), heel/toe walk, squat, mental status, sensation, strength, and reflexes. Id. His impressions were right hip pain, diabetes, hypertension, and hypercholesterolemia. Tr. at 389. He noted Plaintiff had subjective pain in her right hip, but objectively full ROM, normal movements, and no abnormal morphologic/ligamentous joint findings. Id.
On May 13, 2014, state agency medical consultant Dale Van Slooten, M.D. ("Dr. Van Slooten"), reviewed the medical evidence and concluded it showed no severe impairments. Tr. at 65-66, 71-72. On July 16, 2014, a second state agency medical consultant, Mary Lang, M.D. ("Dr. Lang"), determined the record contained insufficient evidence to evaluate Plaintiff's claim. Tr. at 85, 95.
Plaintiff presented to William Greer, M.D. ("Dr. Greer"), for an orthopedic evaluation on August 6, 2014. Tr. at 411. She complained of right hip and deep groin pain that was worsened by tying her shoes and crossing her legs. Id. Dr. Greer observed Plaintiff to demonstrate mildly-antalgic gait, favoring her right lower extremity. Id. He noted mild tenderness over the lower midline of the lumbar spine, but no spasm or deformity, negative SLR, and 5/5 strength. Id. He indicated Plaintiff experienced groin pain upon rotation of her right hip and pain with resisted hip flexion. Id. He noted Plaintiff was nontender over the trochanteric bursa and had no effusion to the knee. Id. X-rays showed "evidence of degenerative changes" of the right hip joint. Tr. at 412. Dr. Greer assessed right hip degenerative joint disease ("DJD"). Id. He indicated he would "get [Plaintiff] a cane to see if this helps her." Id. He recommended Plaintiff take nonsteroidal anti-inflammatory drugs ("NSAIDs"), as tolerated, and follow up with David J. Single, M.D. ("Dr. Single"). Id.
On August 21, 2014, Plaintiff indicated she was not following a diet and her blood sugar was poorly controlled. Tr. at 462. Her hemoglobin A1c was 10.9% and her urine microalbumin was markedly positive. Id. Jasen Rowles, M.D. ("Dr. Rowles"), noted no abnormalities on physical exam. Tr. at 463-64. He assessed uncontrolled diabetes with renal complications, hyperlipidemia, microalbuminuria, hypertension, and back pain. Tr. at 464. He referred Plaintiff to a nutritionist, stopped Pravachol and started Atorvastatin for hyperlipidemia, and continued her other medications. Tr. at 464-65.
Plaintiff followed up with Dr. Single on September 10, 2014. Tr. at 408. She reported an eight-month history of right hip pain that occasionally radiated down her knee on the inner aspect of her leg. Id. She described her pain as aching and rated it as a six. Id. She indicated it was exacerbated by standing and squatting. Id. Plaintiff was 5'4" tall, weighed 173.6 pounds, and had a BMI of 29.8 kg/m.² Id. Dr. Single indicated Plaintiff walked with a non-antalgic, non-Trendelenburg gait. Id. He noted reduced ROM and pain in the anterior aspect of the right hip with internal rotation to 20 degrees. Id. He indicated Plaintiff experienced mild soreness over the right greater trochanter, but more impressive tenderness over the posterior capsule. Id. Plaintiff demonstrated 5/5 abductor strength and examinations of her upper extremities, left hip, back, and knees were normal. Tr. at 408-09. X-rays of Plaintiff's right hip showed end-stage inferomedial arthritis, mild osteophytosis around the acetabulum and femoral head, significant inferomedial narrowing, and a large osteophyte off the right inferior acetabulum. Tr. at 409. Dr. Single noted Plaintiff's left hip showed similar changes, but osteophytosis was not as severe. Id. He assessed end-stage osteoarthritis of the right hip and hip-thigh joint pain. Id. He recommended a right hip corticosteroid and lidocaine injection. Id.
On November 18, 2014, Plaintiff reported her fasting blood sugar was "good," despite her failure to follow a diet. Tr. at 459. Dr. Rowles noted no abnormalities on physical exam. Tr. at 459-60. He reviewed Plaintiff's lab work with her, noting her blood sugar was very poorly controlled. Tr. at 460. He prescribed Atorvastatin for hyperlipidemia and Omeprazole for gastroesophageal reflux disease ("GERD") and continued Plaintiff's other medications. Id.
On January 8, 2015, Plaintiff reported she was using insulin as directed and her blood sugar readings had improved. Tr. at 455. Dr. Rowles noted Plaintiff's hemoglobin A1c was "much improved," but still higher than normal. Id. He indicated no abnormalities on physical exam. Tr. at 456-57. He continued Plaintiff's medications for diabetes, hypertension, hyperlipidemia, and GERD and prescribed Azithromycin for acute bronchitis. Tr. at 457-58.
On February 23, 2015, Plaintiff requested Megan Haselden, PA ("PA Haselden"), complete a disability form as to right hip pain. Tr. at 452. PA Haselden noted no abnormalities on physical exam. Id. She declined to complete the disability form, noting Plaintiff "was able to ambulate very well in and out of the chair and I do not feel comfortable stating she is disabled based on my short interaction with her." Id.
On March 11, 2015, Plaintiff complained of hip pain and right eye problems and requested Naproxen be refilled. Tr. at 436, 437. She indicated Dr. Single had informed her she was not a candidate for hip replacement surgery and requested a referral for a second opinion. Tr. at 437. Katie Hewitt, APRN ("NP Hewitt"), observed Plaintiff to be overweight, to ambulate with a cane, to have watering eyes, and to demonstrate limited musculoskeletal ROM. Tr. at 437-38. She refilled Naproxen and provided a referral to another orthopedist. Tr. at 438.
Plaintiff complained of right hip pain on June 11, 2015. Tr. at 406. Dr. Single indicated he felt Plaintiff had a combination of inflammatory and osteoarthritis. Id. He stated Plaintiff had declined a cortisone injection at her last visit because she did not have insurance, but had recently obtained coverage and desired to proceed with a steroid injection. Id. Plaintiff described more intense right hip pain that radiated to her groin and into the lateral aspect of her hip. Id. She indicated her pain worsened with weight bearing. Id. Dr. Single described Plaintiff as ambulating with antalgic and non-Trendelenburg gait on the right side. Id. He stated Plaintiff had 5/5 abductor strength in the lateral decubitus position and pain with internal and external rotation on ROM testing. Id. Plaintiff denied soreness over the greater trochanter. Id. Dr. Single reviewed x-rays that showed mostly inferomedial/central wear with mild osteophytosis, relatively into the superolateral joint space. Id. He noted subchondral cyst formation in the femoral head on the right. Id. He assessed osteoarthritis of the hip, pain in the hip-thigh joint, and inflammatory arthritis. Id. He administered an intra-articular steroid injection to Plaintiff's right hip. Tr. at 407.
Plaintiff presented to NP Hewitt for three-month follow up on June 17, 2015. Tr. at 432. She reported her home blood sugar readings were trending high and complained of abdominal pain and right hip pain. Tr. at 434. NP Hewitt observed Plaintiff to be overweight, to ambulate with a cane, and to demonstrate limited musculoskeletal ROM. Id. Plaintiff indicated Levemir cost over $100 per month, and NP Hewitt provided samples and indicated she would attempt to initiate patient assistance. Tr. at 435. Plaintiff's blood pressure was elevated, but she indicated she had not picked up Amlodipine from the pharmacy. Id.
Dr. Rowles provided a medical opinion on June 18, 2015. Tr. at 399-401. He indicated Plaintiff's diagnoses included tendinosis of the right hip and right partial hamstring tear. Tr. at 399. He rated Plaintiff's prognosis as fair. Id. He stated Plaintiff's symptoms included right hip pain and pain with standing and walking. Id. He estimated Plaintiff's pain ranged from a three to an eight. Id. He denied that Plaintiff's impairment caused fatigue. Id. He stated Plaintiff had been unable to completely relieve her pain with medication and without unacceptable side effects. Id. He estimated Plaintiff retained abilities to sit for eight hours in an eight-hour workday, stand/walk for zero to two hours in an eight-hour workday, rarely lift less than 10 pounds, and never lift 10 pounds or greater. Tr. at 399-400. He indicated Plaintiff had significant limitations in reaching and lifting. Tr. at 400. He denied that Plaintiff's impairments necessitated she use a cane or other assistive device and prevented her from keeping her neck in a constant position. Id. He confirmed Plaintiff's impairments had lasted or were expected to last at least twelve months. Id. He indicated Plaintiff could not participate in full-time competitive employment that required she engage in activity on a sustained basis. Id. He stated Plaintiff should avoid stooping, pushing, kneeling, heights, pulling, and bending. Id. He denied that Plaintiff was a malingerer and that emotional factors contributed to her complaints. Tr. at 401. He indicated Plaintiff was capable of work that required moderate stress. Id. He estimated Plaintiff would likely be absent from work more than three times per month because of her impairments or treatment. Id. He indicated his description of Plaintiff's symptoms and limitations applied as early as January 2014. Id. He noted he had referred Plaintiff to an orthopedist for further evaluation. Id.
G.T. Deschamps, Jr., M.D. ("Dr. Deschamps"), administered a fluoroscopic-guided joint injection to Plaintiff's right hip on July 8, 2015. Tr. at 415.
On July 29, 2015, Plaintiff requested NP Hewitt complete paperwork from her lawyer pertaining to her disability claim. Tr. at 429. She endorsed bilateral hip pain associated with weakness and tingling. Tr. at 431. She indicated her pain was worse on the right than the left and was exacerbated by sitting and walking. Id. She reported using a cane for stability. Id. She complained of blurred vision, despite use of glasses. Id. NP Hewitt noted Plaintiff's blood pressure was elevated, but Plaintiff reported she had not yet taken her daily medication. Id. On exam, NP Hewitt observed Plaintiff to be overweight, to ambulate with a cane, and to demonstrate limited ROM. Id. Plaintiff reported hip injections had not alleviated her discomfort. Id. NP Hewitt noted Plaintiff's most recent hemoglobin A1c was 8.3% and encouraged continued dietary modifications. Tr. at 432.
Plaintiff followed up with NP Hewitt for diabetes management on September 28, 2015. Tr. at 426. She endorsed hip joint pain and fatigue. Tr. at 427. She reported her home blood sugar readings were fairly controlled. Id. NP Hewitt observed Plaintiff to be overweight and to ambulate with a cane. Id. She noted Plaintiff demonstrated limited ROM. Tr. at 428. Plaintiff's hemoglobin A1c was elevated at 8.0%. Id. NP Hewitt discussed dietary modifications and instructed Plaintiff to use Humalog on a sliding scale. Id. She discontinued Benazepril and increased Plaintiff's dose of Metoprolol to address slightly elevated blood pressure. Id. She added Tramadol 50 mg for Plaintiff to use as needed for hip pain. Id.
On or about October 27, 2015, Dr. Rowles provided a second medical opinion statement. Tr. at 446-48. He provided a diagnosis of left hamstring tenderness and tear. Tr. at 446. He stated Plaintiff's prognosis was fair. Id. He indicated Plaintiff's symptoms included pain and difficulty with ambulation and pain upon sitting for long periods. Id. He noted Plaintiff experienced constant left hip pain that he rated as an eight and fatigue that he rated as a five. Id. He indicated Plaintiff had been unable to completely relieve her pain with medication and without unacceptable side effects. Id. He recommended Plaintiff not sit continuously in a work setting. Id. He estimated Plaintiff could sit for zero to two hours, stand/walk for zero to two hours, and lift no weight during an eight-hour workday. Tr. at 446-47. He indicated Plaintiff was significantly limited in her abilities to engage in reaching, handling, fingering, or lifting. Tr. at 447. He noted Plaintiff must use a cane or other assistive device when engaging in occasional standing and walking. Id. He stated Plaintiff's impairments had lasted or could be expected to last for at least 12 months. Id. He indicated Plaintiff's impairments interfered with her ability to keep her neck in a constant position. Id. He stated Plaintiff was unable to perform a full-time competitive job that would require activity on a sustained basis. Id. He provided the following additional limitations: no stooping; no pushing; no kneeling; need to avoid heights; no pulling; and no bending. Id. He stated Hydrocodone-Acetaminophen caused fatigue and Naproxen upset Plaintiff's stomach. Id. He felt that emotional factors contributed to Plaintiff's impairments and side effects, but indicated Plaintiff was not a malingerer. Tr. at 448. He stated Plaintiff was capable of low stress jobs. Id. He estimated Plaintiff would likely be absent from work more than three times per month because of her impairments or treatment. Id.
On October 28, 2015, Plaintiff reported she had recently been diagnosed with low potassium after presenting to the hospital with atypical chest pain. Tr. at 483. She continued to endorse hip pain and fatigue. Tr. at 484. NP Hewitt observed Plaintiff to be overweight, to ambulate with a cane, and to demonstrate limited ROM on musculoskeletal exam. Tr. at 485. She continued Plaintiff's medications and ordered lab work to assess her potassium level. Id.
On November 2, 2015, Plaintiff reported a two-week history of bleeding from her left eye. Tr. at 466. She endorsed blurred vision in her right eye, but indicated little change from the September 2014 exam. Id. Fundus examination showed mild vitreous hemorrhage ("VH") inferiorly in the right eye and 1+ VH in the left eye, neovascularization of the discs ("NVD") of the left and right optic nerves, tractional retinal detachment ("TRD") on the nasal sides of the discs in both eyes, TRD to the maula in the right eye, and regressed neovascularization of the retinal vessels of both eyes. Tr. at 469. Stephen J. Phillips, M.D. ("Dr. Phillips"), assessed type II diabetes with proliferative diabetic retinopathy ("PDR") without macular edema, bilateral TRD, and bilateral VH. Id. He indicated Plaintiff had new VH in the left eye and severe PDR in both eyes with evidence of regression after panretinal photocoagulation ("PRP"). Id. He stated Plaintiff had active neovascularization in both eyes and very mild VH in the right eye. Id. He noted focal TRD in both eyes, but indicated it had not progressed. Tr. at 469-70. He recommended fill-in PRP laser procedures to both eyes. Tr. at 470. He emphasized blood pressure, lipid, and glucose control and scheduled Plaintiff for the procedure. Id.
Plaintiff followed up with NP Hewitt for medication refills on December 23, 2015. Tr. at 479. She indicated her right hip pain remained chronic and had worsened, but recently felt a little better. Tr. at 481. NP Hewitt observed Plaintiff to be overweight, to ambulate with a cane, and to demonstrate limited musculoskeletal ROM. Id. She continued Plaintiff's medications and indicated she was scheduled to see an endocrinologist. Id.
On September 2, 2016, Plaintiff complained of mid-left sided back pain. Tr. at 476. She indicated she had recently presented to the ER with a similar complaint and had not yet filled prescriptions for Motrin and Zantac. Id. She reported checking her blood sugar three times daily and noted blood sugars typically in the low-100s. Tr. at 477. Her blood pressure was elevated, but she denied having taken medication prior to the visit. Id. She indicated she felt fine, aside from having mid-back pain. Id. She endorsed right greater than left hip pain and fatigue. Id. NP Hewitt observed Plaintiff to appear overweight and to demonstrate limited ambulation and ROM, but normal gait. Tr. at 478. She stated Plaintiff's hemoglobin A1c was running a little higher and increased Levemir to 48 units at bedtime. Id. She noted Plaintiff used NSAIDs as need and "uses a cane for ambulation at times though is not today." Tr. at 478-79. She refilled Plaintiff's medications. Id.
On November 21, 2017, Plaintiff complained of cloudy vision and black spots in her right eye. Tr. at 512. She reported good vision in her left eye. Id. Her blood pressure was elevated at 166/83 mm/Hg. Id. Dr. Phillips assessed type II diabetes with PDR with TRD not involving the bilateral macula and bilateral VH. Tr. at 515. He noted some increase in VH in the right eye since the prior visit, but no progression of the focal TRD in either eye. Id. He indicated Plaintiff had full PRP in both eyes. Id. He was reluctant to prescribe Avastin given the focal TRD and indicated he would continue to observe Plaintiff's condition. Id.
C. The Administrative Proceedings
1. The Administrative Hearing
a. Plaintiff's Testimony
i. November 4, 2015 Hearing
At the November 4, 2015 hearing, Plaintiff testified she was 57 years old, had completed the eleventh grade, and did not obtain a high school equivalency certificate. Tr. at 49-50. She reported working in housekeeping for 25 or 30 years. Tr. at 50. She said she had a driver's license, but had not driven in three or four months due to her declining vision. Tr. at 50-51. She stated her employer let her go on February 1, 2014, because she could not stand for long and had difficulty bending and seeing. Tr. at 51-52. She indicated her job required she lift 100 pounds daily. Tr. at 51. She indicated her vision was very poor due to "blood vessels busting in [her] eyes" since 2014. Tr. at 52. She reported having had three surgeries to correct the vision in her right eye, but indicated she continued to experience blurred vision and to have difficulty reading and seeing at night. Id. She said a blood vessel had recently burst in her left eye, causing difficulty seeing out of it, as it was filled with blood. Tr. at 52-53. She noted having laser surgeries scheduled for each eye the following week. Tr. at 53. Plaintiff said she could not read well over the prior two years and had trouble with her balance when she would stand. Id. She said her right hip bothered her the most and she could not afford the recommended steroid shot or right hip replacement. Tr. at 54. She testified she felt pain while sitting in a regular work chair for more than 10 minutes. Id. She denied being able to stand for long periods due to hip pain and requested permission to stand and walk. Tr. at 54-55. She said she was right-handed and had carried her cane in her right hand for balance and walking since 2014. Tr. at 55. She said she never went anywhere without the cane and could not stand without it. Tr. at 55-56. She reported her medication regimen for diabetes included taking Humalog in the morning, Metformin twice a day, Januvia once a day, and five units of Levemir at night. Tr. at 56. She stated Metformin cause an urgency to go to the bathroom several times during the day. Id. She said her pain medication did not relieve her pain. Id. She reported she did not sleep well and had to get out of bed during the night due to hip pain. Tr. at 56-57. She denied participating in activities throughout the day, aside from watching television, which was blurry, like everything else. Tr. at 57. She said she would prop her feet up sometimes and would often have fluid build-up in her ankles and feet. Tr. at 57-58. She said she took a 30-minute afternoon nap each day. Tr. at 58. She denied being able to leave her house by herself and reported difficulty walking down steps. Tr. at 59. She stated she had health insurance through Obamacare, but remained unable to afford all her medications, specifically Levemir. Tr. at 59. She said her husband did most of the grocery shopping, as she did not often leave home aside from going to the doctor. Tr. at 58-59. She reported being able to take a shower, but requiring her husband's help to dress. Tr. at 59. She described her average energy level as a seven. Id. She also reported sometimes having issues with bronchitis. Id. She denied cooking any meals since January 2014. Tr. at 60.
ii. March 29, 2018 Hearing
At the March 29, 2018 hearing, Plaintiff testified she was 60 years and could not see well due to diabetes. Tr. at 32-33. She said she had difficulty walking, felt pain in her back and legs, and was unable to work due to poor vision and hip pain. Tr. at 33. She confirmed her last hemoglobin A1c was 9.0%. Id. She stated she was no longer taking Metformin and used insulin twice a day. Id. She indicated she needed to watch her diet because the insulin did not completely control her diabetes. Id. She testified she had difficulty seeing up close and could not read print like in a newspaper or on a computer screen or television. Tr. at 34. She reported billboards appeared blurry to her. Id. She described being sensitive to light, which caused pain in her eyes and severe headaches that she rated as a nine. Tr. at 34-35. She said her doctor had declined to prescribe medication for her eyes because of her diabetes and had indicated her vision would worsen. Tr. at 35. She stated she had noticed her vision worsening as blood vessels kept bursting in her eyes, making her vision cloudy. Tr. at 36. She reported problems standing and walking due to bone-on-bone arthritis in her hips, which led her orthopedist to prescribe a cane. Tr. at 36-37. She said injections in her shoulder and hips had been ineffective and she was unable to afford a recommended right hip replacement. Tr. at 37, 43-44. She denied trying physical therapy. Id. She said she was unable to stand in one position without moving and indicated she was hurting during the hearing. Id. She estimated being able to walk 30 seconds without stopping and denied being able to stand or walk for more than two hours out of an eight-hour day. Tr. at 37-38. She reported she could not sit in a chair for long before having to move or adjust because of pain in her hips. Tr. at 38. She reported her pain prevented her from performing household chores. Id. She said she was right-handed and carried her cane in her right hand. Id. She denied being able to retrieve a gallon of milk from the refrigerator with one hand. Tr. at 38-39. She described a similar problem doing dishes and folding clothes and said she could not sweep because her vision problems caused her to see spots and flashes of light. Tr. at 39. She said her husband helped her bathe and dress because the arthritis in her shoulders made it difficult for her to raise her arms. Tr. at 39-40. Plaintiff reported being unable to sleep at night due to pain. Tr. at 40. She said she would get two hours of good sleep on an average night and would wake up tired. Id. She said she sometimes took naps for 30 minutes in the afternoon. Tr. at 40-41. She said her husband helped her prepare meals. Tr. at 41. She reported she was unable to read books and did not watch much television, but sometimes listened to the radio. Tr. at 41. She denied having friends visit and reported she did not often go to church. Tr. at 41-42. She said she sometimes visited the grocery store, but required her husband's assistance to operate the motorized cart, as she had previously run into something. Tr. at 42. She said she sometimes walked into walls and declined to go anywhere by herself. Id. She reported having worked as a housekeeper. Tr. at 43. She testified she had undergone four laser surgeries to her eyes that had failed to improve her vision. Id. She said she had not returned to the orthopedist since June 2015 because she did not have insurance or money. Tr. at 44.
2. The ALJ's Findings
In his decision, the ALJ made the following findings of fact and conclusions of law:
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2018.Tr. at 16-21. II. Discussion
2. The claimant has not engaged in substantial gainful activity since January 10, 2014, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe combination of impairments: degenerative joint disease (DJD) of the right hip, diabetes mellitus, and proliferative diabetic retinopathy (20 CFR 404.1520(c) and 416.920(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except that she is unable to tolerate outdoor light on a sustained basis.
6. The claimant is capable of performing past relevant work as a housekeeper. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565 and 416.965).
7. The claimant has not been under a disability, as defined in the Social Security Act, from January 10, 2014, through the date of this decision (20 CFR 404.1520(f) and 416.920(f)).
The ALJ included the following footnote: "Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds, as well as sitting, standing, or walking for 6 hours each in an 8-hour workday." Tr. at 18 n.3.
Plaintiff alleges the Commissioner erred because substantial evidence does not support the ALJ's RFC analysis. 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 regional economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that she is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen 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 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." Vitek v. Finch, 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her 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
Plaintiff argues the ALJ's RFC analysis is not supported by substantial evidence. [ECF No. 13 at 6]. She maintains the ALJ did not explain how he considered her severe hip and eye impairments in the RFC assessment. Id. at 7. She contends the ALJ erred in failing to limit her abilities to squat, kneel, stoop, crouch, crawl, and climb ramps, stairs, ladders, ropes, and scaffolds. Id. She claims the ALJ did not explain how the evidence supported his conclusion that her abilities to stand and walk were uncompromised. Id. at 7-8. She maintains the ALJ did not adequately consider her subjective complaints. Id. at 8-10.
The Commissioner argues substantial evidence supports the ALJ's finding that Plaintiff had the RFC to perform light work. [ECF No. 15 at 8]. He maintains the ALJ relied on evidence that Plaintiff received little treatment other than medication, demonstrated normal gait, and had an unremarkable orthopedic exam. Id. at 8-9. He contends the ALJ assessed greater limitations than those assessed by the state agency medical consultants. Id. at 9. He claims Dr. Rowles's opinion was not supported by his observations and was inconsistent with the other evidence of record. Id. at 9-10.
The RFC assessment should consider all the relevant evidence and account for all of the claimant's medically-determinable impairments. See 20 C.F.R. §§ 404.1545(a), 416.945(a). "'An ALJ has the 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 v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017) (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)). The RFC assessment must include a narrative discussion describing how all the relevant evidence 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). "Thus, a proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion." Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019).
If the claimant's impairments could reasonably produce the symptoms she alleges, the ALJ "must 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." Lewis, 858 F.3d at 866 (citing 20 C.F.R. § 404.1529(c)). In evaluating alleged symptoms, the ALJ is to "evaluate whether the [claimant's] statements are consistent with objective medical evidence and the other evidence." SSR 16-3p, 2016 WL 1119029, at *6. "Other evidence that [the ALJ should] consider includes statements from the individual, medical sources, and any other sources that might have information about the individual's symptoms, including agency personnel, as well as the factors set forth in [the] regulations." Id. at *5; see also 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) (listing factors to consider, such as activities of daily living ("ADLs"); the location, duration, frequency, and intensity of pain or other symptoms; factors that precipitate and aggravate the symptoms; treatment an individual receives or has received for relief of pain or other symptoms; any measures other than treatment an individual uses or has used to relieve pain or other symptoms; and any other factors concerning an individual's functional limitations and restrictions due to pain or other symptoms).
The ALJ must explain how any material inconsistencies or ambiguities in the record were resolved. SSR 16-3p, 2016 WL 1119029, at *7. "[R]emand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review." Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015), citing Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013).
The ALJ determined Plaintiff had the RFC to perform the full range of light work that did not require she tolerate outdoor light on a sustained basis. Tr. at 18. He acknowledged Plaintiff's testimony that she stopped working because of problems with her hips and vision that caused difficulty standing, walking, balancing, seeing small items and print, and being exposed to light. Tr. at 19. He conceded Plaintiff's medically-determinable impairments could reasonably be expected to cause some of her alleged symptoms, but considered her statements about the intensity, persistence, and limiting effects of her symptoms not entirely consistent with the evidence of record. Id. He summarized the medical evidence. See generally Tr. at 19-20. He accorded little weight to the state agency consultants' opinions, noting he was giving Plaintiff "the benefit of the doubt in finding she ha[d] severe impairments." Tr. at 20. He gave little weight to Dr. Rowles's statements, finding them unsupported by the objective medical evidence and other exam findings. Tr. at 20-21.
The ALJ stated:
In sum, the above residual functional capacity assessment is supported by the weight of the evidence of record. The residual functional capacity assessment is more restrictive than the findings of the State Agency consultants. She has had little care for her complaints of hip pain other than medications. She declined a right hip steroid injection. The updated medical records do not support a finding that a cane is medically necessary. Hip replacement surgery was mentioned as a possibility in September 2014, however, it was not recommended in June 2015 (Exhibit 11F). Accordingly, a finding that the claimant was incapable of all work activity is not supported by the evidence of record as a whole, for the reasons explained above.Tr. at 21.
The undersigned recommends the court find the ALJ's RFC assessment to be unsupported by substantial evidence, as the ALJ failed to provide a logical explanation and narrative discussion describing how the relevant evidence supported his conclusion. See SSR 96-8p, 1996 WL 374184 at *7; Thomas, 916 F.3d at 311. Although one could assume the ALJ restricted Plaintiff to light work based on diabetes and DJD of the right hip and to no exposure to outdoor light based on PDR, he neither explained as much nor provided specific reasons for rejecting additional restrictions. He determined the evidence did not support a finding that Plaintiff was incapable of all work activity, but he did not explain how the evidence supported an RFC for light, as opposed to sedentary, exertion or why he failed to include additional restrictions in the RFC assessment.
The ALJ determined Plaintiff's RFC permitted her to perform her PRW as a housekeeper. Tr. at 21. If he had included additional restrictions that prevented Plaintiff from performing her PRW, Grid Rule 201.02 would have directed a finding of "disabled" at the sedentary exertional level and Grid Rule 202.02 would have directed a finding of "disabled" at the light exertional level, given Plaintiff's age and education and assuming she lacked transferable skills to other light or sedentary work. See 20 C.F.R. Pt. 404, Subpt. P, App'x. 2, §§ 201.02, 202.02.
The ALJ's consideration of PDR is deficient, particularly given the prior remand from the Appeals Council. In its order dated September 11, 2017, the Appeals Council found the ALJ erred in failing to consider PDR as a severe impairment and remanded the claim with instruction to further evaluate PDR and to issue a new decision. Tr. at 117. The order specified the ALJ should "[g]ive further consideration to the claimant's maximum residual functional capacity and provide appropriate rationale with specific references to evidence of record in support of the assessed limitations (20 CFR 404.1545 and 416.945 and Social Security Ruling 96-8p)." Id. As indicated above, the ALJ presumably specified Plaintiff was "unable to tolerate outdoor light on a sustained basis" to address effects of PDR, but he did not "provide appropriate rationale with specific references to evidence of record in support of the assessed limitation[]," as the Appeals Council directed and as 20 C.F.R. § 404.1545 and § 416.945 and SSR 96-8p require. Although the ALJ acknowledged Plaintiff's testimony that, as a result of PDR, she "ha[d] trouble seeing close small print," was "sensitive to light," experienced "eye pain and headaches," and "walk[ed] into walls," Tr. at 19, he neither provided reasons for rejecting Plaintiff's subjective allegations as to the effects of PDR, nor included restrictions that would presumably address her limitations, aside from indicating she would be "unable to tolerate outdoor light on a sustained basis," Tr. at 18.
The ALJ failed to consider the relevant factors in 20 C.F.R. § 404.1529(c)(3) and § 416.929(c)(3) and SSR 16-3p in evaluating Plaintiff's subjective allegations. He did not assess Plaintiff's description of symptoms as reflected in her medical records. See SSR 16-3p, 2016 WL 1119029, at *5. He declined to discuss whether Plaintiff's ADLs supported or refuted her subjective allegations. See 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). He failed to address whether the evidence supported Plaintiff's allegations that her pain was exacerbated by standing and walking. See id.
The ALJ appears to have discredited Plaintiff's subjective allegations, in part, because she "had little care for her complaints of hip pain other than medications," but he reached this conclusion without considering all the relevant evidence. Pursuant to SSR 16-3p, the ALJ is not to "find an individual's symptoms inconsistent with the evidence in the record . . . without considering possible reasons he or she may not comply with treatment or seek treatment consistent with the degree of his or her complaints." 2017 WL 5180304, at *9. The ALJ noted Plaintiff had "declined right hip steroid injection," but ignored evidence that she initially declined it because she lacked insurance coverage and subsequently received two steroid injections that provided little relief. See Tr. at 406, 431. He failed to address Plaintiff's testimony and statements to her medical providers that suggested she was unable to afford additional treatment. See Tr. at 37, 43-44, 54, 59, 406, 435. The Fourth Circuit has held "it flies in the face of the patent purposes of the Social Security Act to deny benefits to someone because [s]he is too poor to obtain medical treatment that may help [her]." Gordon v. Schweiker, 725 F.2d 231, 237 (4th Cir. 1984); see also Lovejoy v. Heckler, 790 F.2d 1114, 1117 (4th Cir. 1986) (finding the ALJ erred in determining the plaintiff's impairment was not severe based on her failure to seek treatment where the record reflected she could not afford treatment). Thus, the ALJ erred in discrediting Plaintiff's allegations as to symptom severity without adequately considering her reasons for declining to pursue additional treatment.
The ALJ did not address all the relevant evidence in assessing Plaintiff's capacity to perform relevant functions. Therefore, the undersigned recommends the court find substantial evidence does not support the ALJ's RFC assessment. III. Conclusion and Recommendation
The court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported as a matter of fact and law. Based on the foregoing, the court cannot determine that the Commissioner's decision is supported by substantial evidence. Therefore, the undersigned recommends, pursuant to the power of the court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in Social Security actions under sentence four of 42 U.S.C. § 405(g), that this matter be reversed and remanded for further administrative proceedings.
IT IS SO RECOMMENDED. April 10, 2020
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
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).