Opinion
Civil Action No: 8:19-cv-02988-MGL-JDA
09-30-2020
Donna Williams, Plaintiff, v. Commissioner Social Security Administration, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court for a Report and Recommendation pursuant to Local Civil Rule 73.02(B)(2)(a), D.S.C., and 28 U.S.C. § 636(b)(1)(B). Plaintiff brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the Commissioner of Social Security ("the Commissioner"), denying Plaintiff's claim for supplemental security income ("SSI"). For the reasons set forth below, it is recommended that the decision of the Commissioner be affirmed.
A Report and Recommendation is being filed in this case, in which one or both parties declined to consent to disposition by a magistrate judge.
Section 1383(c)(3) provides, "The final determination of the Commissioner of Social Security after a hearing under paragraph (1) shall be subject to judicial review as provided in section 405(g) of this title to the same extent as the Commissioner's final determinations under section 405 of this title." 42 U.S.C. § 1383(c)(3).
PROCEDURAL HISTORY
On September 26, 2013, Plaintiff filed an application for SSI alleging an onset of disability date of December 1, 2002. [R. 356-64.] The claim was denied initially and on reconsideration by the Social Security Administration ("the Administration"). [R. 154-56, 159-63.] Plaintiff requested a hearing before an administrative law judge ("ALJ") and on August 30, 2016, ALJ Tammy Georgian conducted a de novo hearing on Plaintiff's claim. [R. 60-77.]
Plaintiff had previously filed applications for disability insurance benefits and SSI that were denied by ALJ decisions dated June 17, 2009, and May 8, 2013. [R. 78-94, 100-17.]
The ALJ issued a decision on September 20, 2016, finding Plaintiff not disabled under the Act. [R. 30-41.] Plaintiff requested Appeals Council review of the ALJ's decision but the Appeals Council declined review. [R. 1-6.] Plaintiff sought review in this Court and, on June 19, 2018, the Commissioner filed a motion to remand the matter to the ALJ, which this Court granted. [R. 1031-34.]
On remand, the ALJ conducted another hearing on July 11, 2019. [R. 982-1000.] At the hearing, Plaintiff amended her alleged onset date to the application date, September 26, 2013. [R. 985.] On August 5, 2019, the ALJ issued a decision finding Plaintiff not disabled under the Act. [R. 847-77.] At Step 1, the ALJ found Plaintiff had not engaged in substantial gainful activity since September 26, 2013, the application date. [R. 853, Finding 1.] At Step 2, the ALJ found Plaintiff had the following severe impairments: diabetes mellitus, depression, diabetic neuropathy status-post fifth metatarsal amputation, substance abuse, anxiety, and coronary artery disease. [R. 853, Finding 2.] The ALJ also found Plaintiff had a non-severe impairment of retinopathy. [R. 853.] At Step 3, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of an impairment listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 853, Finding 3.]
The five-step sequential analysis used to evaluate disability claims is discussed in the Applicable Law section, infra.
Before addressing Step 4, Plaintiff's ability to perform her past relevant work, the ALJ found Plaintiff retained the following residual functional capacity ("RFC"):
After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 416.967(b). Specifically, the claimant is able to lift and carry up to 20 pounds occasionally and 10 pounds frequently and stand, walk, and sit for 6 hours in an 8-hour day except that the clamant can perform simple, repetitive, routine tasks not at a production rate pace, and can tolerate occasional changes to the work setting.[R. 856, Finding 4.] Based on this RFC finding, the ALJ determined at Step 4 that although Plaintiff had no past relevant work [R. 867, Finding 5], upon considering Plaintiff's age, education, work experience, RFC, and the testimony of the vocational expert ("VE"), there were jobs that existed in significant numbers in the national economy that Plaintiff could perform [R. 868, Finding 9]. Thus, the ALJ found that Plaintiff had not been under a disability as defined by the Act since September 26, 2013, the application date. [R. 869, Finding 10.] Plaintiff filed this action for judicial review on October 22, 2019. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff contends the ALJ's decision is not supported by substantial evidence and should be reversed and remanded. [Doc. 22.] Specifically, Plaintiff contends the ALJ did not perform the required function-by-function analysis required by regulations when formulating the RFC. [Id. at 15-17.] Plaintiff also contends the ALJ did not assess her subjective complaints in accordance with SSR 16-3p and failed to consider her limited ability to pay for the care she needed. [Id. at 17-19.]
The Commissioner, on the other hand, contends the ALJ's decision should be affirmed because it is supported by substantial evidence. [Doc. 24.] Specifically, the Commissioner contends substantial evidence supports the ALJ's RFC finding that Plaintiff could perform the full range of light work. [Id. at 8-14.] The Commissioner also argues that the ALJ conducted a proper analysis of Plaintiff's subjective complaints and found that they were not entirely supported by the record. [Id. at 14-18.]
STANDARD OF REVIEW
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla—i.e., the evidence must do more than merely create a suspicion of the existence of a fact and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) (citing Woolridge v. Celebrezze, 214 F. Supp. 686, 687 (S.D.W. Va. 1963)) ("Substantial evidence, it has been held, is evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is 'substantial evidence.'").
Where conflicting evidence "allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ)," not on the reviewing court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991) (stating that where the Commissioner's decision is supported by substantial evidence, the court will affirm, even if the reviewer would have reached a contrary result as finder of fact and even if the reviewer finds that the evidence preponderates against the Commissioner's decision). Thus, it is not within the province of a reviewing court to determine the weight of the evidence, nor is it the court's function to substitute its judgment for that of the Commissioner so long as the decision is supported by substantial evidence. See Bird v. Comm'r, 699 F.3d 337, 340 (4th Cir. 2012); Laws, 368 F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).
The reviewing court will reverse the Commissioner's decision on plenary review, however, if the decision applies incorrect law or fails to provide the court with sufficient reasoning to determine that the Commissioner properly applied the law. Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980); see also Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner's decision "is in clear disregard of the overwhelming weight of the evidence, Congress has empowered the courts to modify or reverse the [Commissioner's] decision 'with or without remanding the cause for a rehearing.'" Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971) (quoting 42 U.S.C. § 405(g)). Remand is unnecessary where "the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no purpose." Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974).
The court may remand a case to the Commissioner for a rehearing under sentence four or sentence six of 42 U.S.C. § 405(g). Sargent v. Sullivan, 941 F.2d 1207 (4th Cir. 1991) (unpublished table decision). To remand under sentence four, the reviewing court must find either that the Commissioner's decision is not supported by substantial evidence or that the Commissioner incorrectly applied the law relevant to the disability claim. See, e.g., Jackson v. Chater, 99 F.3d 1086, 1090-91 (11th Cir. 1996) (holding remand was appropriate where the ALJ failed to develop a full and fair record of the claimant's residual functional capacity); Brenem v. Harris, 621 F.2d 688, 690-91 (5th Cir. 1980) (holding remand was appropriate where record was insufficient to affirm but was also insufficient for court to find the claimant disabled). Where the court cannot discern the basis for the Commissioner's decision, a remand under sentence four is usually the proper course to allow the Commissioner to explain the basis for the decision or for additional investigation. See Radford v. Comm'r, 734 F.3d 288, 295 (4th Cir. 2013) (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985);see also Smith v. Heckler, 782 F.2d 1176, 1181-82 (4th Cir. 1986) (remanding case where decision of ALJ contained "a gap in its reasoning" because ALJ did not say he was discounting testimony or why); Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (remanding case where neither the ALJ nor the Appeals Council indicated the weight given to relevant evidence). On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. See Smith, 782 F.2d at 1182 ("The [Commissioner] and the claimant may produce further evidence on remand."). After a remand under sentence four, the court enters a final and immediately appealable judgment and then loses jurisdiction. Sargent, 941 F.2d 1207 (citing Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991)).
In contrast, sentence six provides:
The court may . . . at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding . . . .42 U.S.C. § 405(g). A reviewing court may remand a case to the Commissioner on the basis of new evidence only if four prerequisites are met: (1) the evidence is relevant to the determination of disability at the time the application was first filed; (2) the evidence is material to the extent that the Commissioner's decision might reasonably have been different had the new evidence been before him; (3) there is good cause for the claimant's failure to submit the evidence when the claim was before the Commissioner; and (4) the claimant made at least a general showing of the nature of the new evidence to the reviewing court. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985) (citing 42 U.S.C. § 405(g); Mitchell v. Schweiker, 699 F.2d 185, 188 (4th Cir. 1983); Sims v. Harris, 631 F.2d 26, 28 (4th Cir. 1980); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)), superseded by amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec'y, Dep't of Health & Human Servs., 925 F.2d 769, 774 (4th Cir. 1991). With remand under sentence six, the parties must return to the court after remand to file modified findings of fact. Melkonyan, 501 U.S. at 98. The reviewing court retains jurisdiction pending remand and does not enter a final judgment until after the completion of remand proceedings. See Allen v. Chater, 67 F.3d 293 (4th Cir. 1995) (unpublished table decision) (holding that an order remanding a claim for Social Security benefits pursuant to sentence six of 42 U.S.C. § 405(g) is not a final order).
Though the court in Wilkins indicated in a parenthetical that the four-part test set forth in Borders had been superseded by an amendment to 42 U.S.C. § 405(g), courts in the Fourth Circuit have continued to cite the requirements outlined in Borders when evaluating a claim for remand based on new evidence. See, e.g., Brooks v. Astrue, No. 6:10-cv-152, 2010 WL 5478648, at *8 (D.S.C. Nov. 23, 2010); Ashton v. Astrue, No. TMD 09-1107, 2010 WL 3199345, at *3 (D. Md. Aug. 12, 2010); Washington v. Comm'r of Soc. Sec., No. 2:08-cv-93, 2009 WL 86737, at *5 (E.D. Va. Jan. 13, 2009); Brock v. Sec'y of Health & Human Servs., 807 F. Supp. 1248, 1250 n.3 (S.D.W. Va. 1992). Further, the Supreme Court of the United States has not suggested Borders' construction of § 405(g) is incorrect. See Sullivan v. Finkelstein, 496 U.S. 617, 626 n.6 (1990). Accordingly, the Court will apply the more stringent Borders inquiry.
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a disability. 42 U.S.C. § 423(a). "Disability" is defined as:
the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 consecutive months.Id. § 423(d)(1)(A).
I. The Five-Step Evaluation
To facilitate uniform and efficient processing of disability claims, federal regulations have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (noting a "need for efficiency" in considering disability claims). The ALJ must consider whether (1) the claimant is engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the impairment meets or equals an impairment included in the Administration's Official Listings of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents the claimant from performing past relevant work; and (5) the impairment prevents the claimant from having substantial gainful employment. 20 C.F.R. § 416.920. Through the fourth step, the burden of production and proof is on the claimant. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). The claimant must prove disability on or before the last day of her insured status to receive disability benefits. Everett v. Sec'y of Health, Educ. & Welfare, 412 F.2d 842, 843 (4th Cir. 1969). If the inquiry reaches step five, the burden shifts to the Commissioner to produce evidence that other jobs exist in the national economy that the claimant can perform, considering the claimant's age, education, and work experience. Grant, 699 F.2d at 191. If at any step of the evaluation the ALJ can find an individual is disabled or not disabled, further inquiry is unnecessary. 20 C.F.R. § 416.920(a)(4); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
A. Substantial Gainful Activity
"Substantial gainful activity" must be both substantial—involves doing significant physical or mental activities, 20 C.F.R. § 416.972(a)—and gainful—done for pay or profit, whether or not a profit is realized, id. § 416.972(b). If an individual has earnings from employment or self-employment above a specific level set out in the regulations, he is generally presumed to be able to engage in substantial gainful activity. Id. § 416.974-.975.
B. Severe Impairment
An impairment is "severe" if it significantly limits an individual's ability to perform basic work activities. See id. § 416.921. When determining whether a claimant's physical and mental impairments are sufficiently severe, the ALJ must consider the combined effect of all of the claimant's impairments. 42 U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G). The ALJ must evaluate a disability claimant as a whole person and not in the abstract, having several hypothetical and isolated illnesses. Walker v. Bowen, 889 F.2d 47, 49-50 (4th Cir. 1989) (stating that, when evaluating the effect of a number of impairments on a disability claimant, "the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them"). Accordingly, the ALJ must make specific and well-articulated findings as to the effect of a combination of impairments when determining whether an individual is disabled. Id. at 50 ("As a corollary to this rule, the ALJ must adequately explain his or her evaluation of the combined effects of the impairments."). If the ALJ finds a combination of impairments to be severe, "the combined impact of the impairments shall be considered throughout the disability determination process." 42 U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G).
C. Meets or Equals an Impairment Listed in the Listings of Impairments
If a claimant's impairment or combination of impairments meets or medically equals the criteria of a listing found at 20 C.F.R. Pt. 404, Subpt. P, App.1 and meets the duration requirement found at 20 C.F.R. § 416.909, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience. 20 C.F.R. § 416.920(a)(4)(iii), (d).
The Listing of Impairments is applicable to SSI claims pursuant to 20 C.F.R. §§ 416.911, 416.925.
D. Past Relevant Work
The assessment of a claimant's ability to perform past relevant work "reflect[s] the statute's focus on the functional capacity retained by the claimant." Pass v. Chater, 65 F.3d 1200, 1204 (4th Cir. 1995). At this step of the evaluation, the ALJ compares the claimant's residual functional capacity with the physical and mental demands of the kind of work he has done in the past to determine whether the claimant has the residual functional capacity to do his past work. 20 C.F.R. § 416.960(b).
Residual functional capacity is "the most [a claimant] can still do despite [his] limitations." 20 C.F.R. § 416.945(a)(1).
E. Other Work
As previously stated, once the ALJ finds that a claimant cannot return to her prior work, the burden of proof shifts to the Commissioner to establish that the claimant could perform other work that exists in the national economy. See 20 C.F.R. § 416.920(f)-(g); Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992). To meet this burden, the Commissioner may sometimes rely exclusively on the Medical-Vocational Guidelines (the "grids"). Exclusive reliance on the "grids" is appropriate where the claimant suffers primarily from an exertional impairment, without significant nonexertional factors. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e); Gory v. Schweiker, 712 F.2d 929, 930-31 (4th Cir. 1983) (stating that exclusive reliance on the grids is appropriate in cases involving exertional limitations). When a claimant suffers from both exertional and nonexertional limitations, the grids may serve only as guidelines. Gory, 712 F.2d at 931. In such a case, the Commissioner must use a vocational expert to establish the claimant's ability to perform other work. 20 C.F.R. § 416.969a; see Walker, 889 F.2d at 49-50 ("Because we have found that the grids cannot be relied upon to show conclusively that claimant is not disabled, when the case is remanded it will be incumbent upon the [Commissioner] to prove by expert vocational testimony that despite the combination of exertional and nonexertional impairments, the claimant retains the ability to perform specific jobs which exist in the national economy."). The purpose of using a vocational expert is "to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform." Walker, 889 F.2d at 50. For the vocational expert's testimony to be relevant, "it must be based upon a consideration of all other evidence in the record, . . . and it must be in response to proper hypothetical questions which fairly set out all of claimant's impairments." Id. (citations omitted).
An exertional limitation is one that affects the claimant's ability to meet the strength requirements of jobs. 20 C.F.R. § 416.969a(a). A nonexertional limitation is one that affects the ability to meet the demands of the job other than the strength demands. Id. Examples of nonexertional limitations include but are not limited to difficulty functioning because of being nervous, anxious, or depressed; difficulty maintaining attention or concentrating; difficulty understanding or remembering detailed instructions; difficulty seeing or hearing. § 416.969a(c)(1).
II. Developing the Record
The ALJ has a duty to fully and fairly develop the record. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). The ALJ is required to inquire fully into each relevant issue. Snyder, 307 F.2d at 520. The performance of this duty is particularly important when a claimant appears without counsel. Marsh v. Harris, 632 F.2d 296, 299 (4th Cir. 1980). In such circumstances, "the ALJ should scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts, . . . being especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited." Id. (internal quotations and citations omitted).
III. Treating Physicians
If a treating physician's opinion on the nature and severity of a claimant's impairments is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" in the record, the ALJ must give it controlling weight. 20 C.F.R. § 416.927(c)(2); see Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). The ALJ may discount a treating physician's opinion if it is unsupported or inconsistent with other evidence, i.e., when the treating physician's opinion does not warrant controlling weight, Craig, 76 F.3d at 590, but the ALJ must nevertheless assign a weight to the medical opinion based on the 1) length of the treatment relationship and the frequency of examination; 2) nature and extent of the treatment relationship; 3) supportability of the opinion; 4) consistency of the opinion with the record a whole; 5) specialization of the physician; and 6) other factors which tend to support or contradict the opinion, 20 C.F.R. § 416.927(c). Similarly, where a treating physician has merely made conclusory statements, the ALJ may afford the opinion such weight as is supported by clinical or laboratory findings and other consistent evidence of a claimant's impairments. See Craig, 76 F.3d at 590 (holding there was sufficient evidence for the ALJ to reject the treating physician's conclusory opinion where the record contained contradictory evidence).
In any instance, a treating physician's opinion is generally entitled to more weight than a consulting physician's opinion. See Mitchell v. Schweiker, 699 F.2d 185, 187 (4th Cir. 1983) (stating that treating physician's opinion must be accorded great weight because "it reflects an expert judgment based on a continuing observation of the patient's condition for a prolonged period of time"); 20 C.F.R. § 416.927(c)(2). An ALJ determination coming down on the side of a non-examining, non-treating physician's opinion can stand only if the medical testimony of examining and treating physicians goes both ways. Smith v. Schweiker, 795 F.2d 343, 346 (4th Cir. 1986). Further, the ALJ is required to review all of the medical findings and other evidence that support a medical source's statement that a claimant is disabled. 20 C.F.R. § 416.927(d). However, the ALJ is responsible for making the ultimate determination about whether a claimant meets the statutory definition of disability. Id.
IV. Medical Tests and Examinations
The ALJ is required to order additional medical tests and exams only when a claimant's medical sources do not give sufficient medical evidence about an impairment to determine whether the claimant is disabled. 20 C.F.R. § 416.917; see also Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986). The regulations are clear: a consultative examination is not required when there is sufficient medical evidence to make a determination on a claimant's disability. 20 C.F.R. § 416.917. Under the regulations, however, the ALJ may determine that a consultative examination or other medical tests are necessary. Id.
V. Pain
Congress has determined that a claimant will not be considered disabled unless he furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing the existence of a medical impairment that could reasonably be expected to produce the pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). Social Security Ruling ("SSR") 16-3p provides, "[i]n considering the intensity, persistence, and limiting effects of an individual's symptoms, we examine the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record." Social Security Ruling 16-3p Titles II and XVI: Evaluation of Symptoms In Disability Claims, 82 Fed. Reg. 49,462, 49,464 (Oct. 25, 2017); see also 20 C.F.R. § 416.929(c)(1)-(c)(2) (outlining evaluation of pain).
In evaluating claims of disabling pain, the ALJ must proceed in a two-part analysis. Morgan v. Barnhart, 142 F. App'x 716, 723 (4th Cir. 2005) (unpublished opinion); see also SSR 16-3p, 82 Fed. Reg. at 49,463. First, "the ALJ must determine whether the claimant has produced medical evidence of a 'medically determinable impairment which could reasonably be expected to produce" the alleged symptoms. Id. (quoting Craig, 76 F.3d at 594); see SSR 16-3p, 82 Fed. Reg. at 49,463. Second, the ALJ must evaluate "the intensity and persistence of an individual's symptoms such as pain and determine the extent to which an individual's symptoms limit his or her ability to perform work-related activities . . . or to function independently." SSR 16-3p, 82 Fed. Reg. at 49,464; see 20 C.F.R. § 416.928 (noting that the ALJ must consider all of a claimant's statements about his symptoms, including pain, and determine the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence).
APPLICATION AND ANALYSIS
RFC Analysis
Plaintiff argues that, in developing her RFC, the ALJ failed to properly consider Plaintiff's limitations in her ability to stand, walk and use her hands and failed to find additional exertional or postural limitations, leaving open the possibility that she could perform work requiring climbing ladders or stairs; constant stooping, kneeling, crawling, and crouching; or pushing and pulling with the feet. [Doc. 22 at 16.] Plaintiff contends that, although the ALJ acknowledged that her diabetic neuropathy status-post fifth metatarsal amputation was severe, the ALJ failed to explain its impact on her ability to stand and walk and failed to account for her need for an assistive device intermittently throughout the six-year period at issue. [Id.] The Commissioner disagrees, arguing that, despite Plaintiff's chronic complications, her physical exams routinely yielded unremarkable findings, and the RFC is supported by the overall objective medical evidence. [Doc. 24 at 10.]
Social Security Ruling 96-8p provides the process for determining RFC. Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015). The ruling states that the "'assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions' listed in the regulations." Id. (quoting SSR 96-8p, 61 Fed. Reg. 34,474, 34,475 (July 2, 1996)). "Only after such a function-by-function analysis may an ALJ express RFC in terms of the exertional levels of work." Monroe v. Colvin, 826 F.3d 176, 187 (4th Cir. 2016) (internal quotation marks omitted). SSR 96-8p also provides that the RFC "'assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and non-medical evidence (e.g., daily activities, observations).'" Mascio, 780 F.3d at 636 (quoting SSR 96-8p, 61 Fed. Reg. at 34,478). Additionally, the Fourth Circuit has held that "[a] necessary predicate to engaging in substantial evidence review is a record of the basis for the ALJ's ruling, including a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence." Monroe, 826 F.3d at 189 (alteration in original and internal quotation marks omitted). To create such a record, the ALJ must "explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved." Rehoric v. Berryhill, No. 1:17-cv-02634-MGL-SVH, 2018 WL 7021611, at *12 (D.S.C. Dec. 28, 2018) (internal quotation marks omitted), Report and Recommendation adopted by 2019 WL 188690 (D.S.C. Jan. 14, 2019). The Fourth Circuit has described the required discussion as "build[ing] an accurate and logical bridge from the evidence to [the ALJ's] conclusion." Monroe, 826 F.3d at 189 (internal quotation marks omitted).
The ALJ's RFC Determination
The ALJ summarized Plaintiff's testimony as follows:
At her hearing, the claimant reported that her 10-year-old grandson has lived with her since 2016. She stated that she attends a counseling group for victims of homicide approximately once per month. Regarding drug use, the claimant stated that she quit using cocaine approximately two weeks prior to her hearing and, prior to that, used it three days a week for seven years to self-medicate. The claimant alleged inability to pay for medical treatment but acknowledged ability to obtain cocaine through having sex in trade or from her boyfriend. The claimant alleged a ten-year history of diabetic neuropathy in her feet preventing her from performing certain activities and she stated that she had a toenail removed and has had a problem with wounds not healing. The claimant underwent toe amputation in 2016 and again in 2018. She stated that, after the death of her son, she took a bottle of sleeping pills in a suicide attempt but she did not seek or receive emergency treatment. She stated that she has seen her primary care physician and had mental health treatment since then and reported a long history of mental health issues with reduced focus and concentration. The claimant reported shoulder pain secondary to a prior dislocation. She also stated that she uses circulation stockings, a cane or walker, and a wheelchair as needed; she stated that she cannot walk without a cane. The claimant alleged having a fungus in both hands but did not detail if or how this affects manipulation or use of her hands. The claimant reported fatigue secondary to her medications. She does not drive. As she alleges inability [to] climb stairs, she stated that she has looked for a ground floor apartment. When asked about her earnings from 2013 to 2017, the claimant stated that she took care of her son's nine children and received voucher payments from DSS. She stated that she cannot do this work anymore due to her impairments. The claimant stated that her cocaine use did not impact her ability to perform childcare.[R. 856-57.] Upon review of Plaintiff's medical history, the ALJ explained as follows:
After careful consideration of the evidence, I find that the claimant's medically determinable impairments could reasonably be expected to cause some of her symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision. I have considered the adult function report completed by the claimant in July 2018 (Exhibit D29E). The claimant stated, generally, that, due to prior rotator cuff surgery and history of toe amputation, she is in pain and has limited ability to handle or lift objects and to walk. She reported being drowsy most of each day due to medication and stated that her children prepare her meals. This is inconsistent with her report that she is currently caring for her young grandson. The claimant stated that her daughter helps her bathe once weekly and sorts her pills in a reminder case. She stated that she cannot prepare even simple meals and tries to clean the house, but is limited in her ability. The claimant stated that she needs help pushing her wheelchair. She indicated that she does not know how to write a check but is able to count change. The claimant stated that she enjoys watching television and visiting with her grandson. She reads the Bible. The claimant attends church approximately once monthly, and visits with family. She alleged bipolar disorder and depression. Functionally, the claimant stated that she is unable to lift/carry more than three pounds. She stated that she can pay attention if she understands what is being said, and reported no obvious problems with following written and spoken instructions. The claimant reported "so-so" ability to get along with authority figures and change in routine. She indicated that she uses a cane, a walker, and a wheelchair. I find the claimant's testimony and function report to be inconsistent with and unsupported by the medical evidence of record as a whole.[R. 857.] The ALJ then thoroughly summarized medical evidence from November 2013 through May 2019 [R. 857-65] and weighed the medical opinions as follows:
While the claimant has received medical treatment since her alleged onset date, the medical evidence of record does not reflect any objective abnormalities to suggest that she is incapable of performing the above residual functional capacity assessment. . . .
Some weight is given to the assessments of the State agency medical consultants at Exhibit D7A, determining that the claimant would be able to perform a reduced range of light work.
. . . .
I have considered, but given little weight to, the medical source statement submitted by Dr. J. Robert Freeman, in March 2016, stating simply that the claimant is disabled from any gainful employment (Exhibit D13F). In December 2016, following the issuance of the September 2016 [ALJ] decision, Dr. Freeman issued an additional statement in support of his March 2016 medical source statement (Exhibit D17F). In his December 2016 statement, Dr. Freeman reported treating the claimant since April 2014 but the record reflects that he has not seen her since approximately August 2016 (Exhibit D16F). Dr. Freeman reported treating the claimant for a skin disorder, lichen simplex chronicus, causing frequent irritation and itching. The medical evidence of record does not reflect any recent assessment with or treatment for this condition. Regarding the claimant's diabetes mellitus, Dr. Freeman stated that the claimant has required frequent hospitalizations in spite of her efforts to control her condition. As indicated throughout this decision and the medical evidence of record as a whole, the claimant has a long-standing history of diabetes mellitus treatment noncompliance. He also noted that the claimant has chronic folliculitis causing disfigurement and public embarrassment; this is not reflected in recent treatment notes.
Dr. Freeman also found the claimant to have advanced diabetic neuropathy and a history of physical abuse with diagnoses of post-traumatic stress disorder and major depressive disorder but the claimant has produced no evidence of psychological treatment since June 2016. His statement that the claimant has occasional fecal incontinence is unsupported by recent treatment notes. While notes support a finding that the claimant has occasional diabetic gastroparesis, Dr. Freeman himself noted that the claimant's weight has remained stable, in contrast to her report of limited appetite and/or calorie intake. Dr. Freeman concluded that he never expects the claimant to be able to work again. I note that a determination of disability is an issue reserved to the Commissioner. Additionally, in support of this statement, Dr. Freeman did not document any specific objective/clinical
findings or specific functional limitations, and his own treatment notes and the other physical examinations of record do not support his opinion. As such, it is given little weight.
In November 2013, the claimant underwent a consultative examination with Dr. Karen Rafferty (Exhibit D6F). On presentation, the claimant complained of poorly controlled diabetes mellitus with multiple skin and leg infections and nausea secondary to this condition. She stated that her blood sugar has been out of control and was urged by Dr. Rafferty to seek emergency department evaluation of her blood sugar levels. Nonetheless, the claimant was steady on her feet, conscious, and alert. The claimant complained of open and draining diabetic lesions. She complained of recent poor memory secondary to being hit on the back of the head. The claimant stated that she is independent in her activities of daily living. Despite her diabetes mellitus diagnosis, the claimant stated that she continues to smoke cigarettes. She also complained of depression.
The claimant's musculoskeletal and neurological exams were both grossly within normal limits. Dr. Rafferty indicated that the claimant should be referred to a mental health professional but stated that, physically, the claimant could lift up to 50 pounds and should not balance if hypoglycemic but had no other physical work-related functional limitations. Dr. Rafferty did note that if the claimant's diabetes mellitus remained uncontrolled with lesions, she could have frequent absences from work. I note that smoking prevents wounds from healing and the claimant's treatment noncompliance indicates that her symptoms are not as disabling as alleged.
Dr. George Zaky, a psychologist, performed a mental status examination on the claimant in November 2013 (Exhibit D5F). Regarding her background, the claimant reported a history of sexual, physical, and emotional abuse by her father, and stated that she left school in the 7th grade after becoming pregnant. The claimant attended regular classes in school. At that time, the claimant's son was still living and she stated that he suffered from mental illness and was violent. She had four living children at that time. When asked why she was applying for disability benefits, the claimant said that she is sick and does not want to go outside. The claimant stated that she last worked in 2006 operating a day care from her house, but only for a few months. She has a history of arrests for disorderly
conduct and shoplifting. Although the claimant initially denied illicit drug use, with additional questioning, she admitted past marijuana and cocaine use. The claimant had never been hospitalized for psychiatric admission or sought or received mental health treatment.[R. 866-67.] Ultimately, the ALJ concluded that Plaintiff was limited to light work and to simple, repetitive, routine tasks with no production quotas and only occasional changes to the work setting, but "due to the aforementioned inconsistencies, particularly the relatively benign physical and mental examinations and the extent of the claimant's daily activities, [the ALJ could not] find [Plaintiff's] allegation that she is incapable of all work activity to be credible." [R. 867.]
Regarding her physical health, the claimant complained of asthma, diabetes mellitus, and hypertension, but stated that she had not had an asthma attack since 2007. When asked about her mental health, the claimant stated that she has been depressed since age ten and has anxiety and post-traumatic stress disorder. The claimant reported that she is independent in her activities of daily living and can perform chores, cook, and shop. She goes to church once per month and watches television. On mental status examination, the claimant was fully oriented in all spheres. Her affect was tearful. The claimant's immediate memory was intact but recent memory was not. Her cognitive abilities were below expectations. No evidence of anxiety was seen and the claimant had no evidence of psychosis. Dr. Zaky assessed the claimant with major depressive disorder, recurrent, severe, with psychotic features (provisional) and post-traumatic stress disorder (provisional). I have given little weight to Dr. Zaky's assessment as the claimant's subjective complaints appear overstated and inconsistent with her lack of mental health treatment. Also, I have given little weight to Dr. Zaky's finding that the claimant had a global assessment of functioning score of 35, as this would indicate major impairments to reality testing and communication, which the claimant did not exhibit.
Discussion
Here, the ALJ sufficiently explained her finding that Plaintiff was capable of light work. Although Plaintiff contends that the functions of standing, walking, and using her hands were squarely at issue in light of her diabetic neuropathy status-post fifth metatarsal amputation and her intermittent need for an assistive device throughout the six-year period at issue [Doc. 22 at 16], Plaintiff has not directed the Court to any medical evidence or opinion that the ALJ failed to consider in finding her capable of light work. To the contrary, the ALJ explained that the medical evidence of record did not reflect any objective abnormalities to suggest that she is incapable of performing light work. [R. 857.] Specifically, the ALJ noted that the medical evidence consisted of relatively unremarkable physical and mental examinations and that Plaintiff performed a variety of daily activities that were consistent with light work. [R. 857-65, 867.] Although Plaintiff has highlighted specific medical records [Doc. 22 at 16-17], she has failed to explain how any of these records indicate that Plaintiff was more limited than the RFC provides. Moreover, the ALJ thoroughly summarized all of the medical records in reaching her decision. Without sufficient evidence contradicting the ALJ's decision, and with substantial evidence supporting the ALJ's decision, the Court cannot second-guess the ALJ's determination. See, e.g., Craig, 76 F.3d at 589; Laws, 368 F.2d at 642; Snyder, 307 F.2d at 520. Merely disagreeing with the ALJ's determination, when the ALJ properly considered the evidence of record, does not provide a basis for remand. Finally, any failure of the ALJ to specifically address Plaintiff's use of an assistive device in the RFC is harmless in light of the VE's testimony that neither a cane nor a walking boot would prevent light work. [R. 73.] Upon consideration of the ALJ's decision and the record evidence, the Court finds the ALJ's decision is supported by substantial evidence and adequately explains her consideration of the evidence and the basis for her conclusions.
A VE testified during the August 30, 2016, hearing. [R. 68-76.] Although a VE was available during the July 11, 2019, hearing, neither the ALJ nor Plaintiff's counsel questioned her. [R. 1000.]
Subjective Complaints
Plaintiff also argues that the ALJ did not properly consider her pain complaints in accordance with SSR 16-3p and failed to take into consideration her limited ability to pay for the care she needed. [Doc. 22 at 17-19.] Plaintiff, however, has failed to explain what information or complaint was not considered by the ALJ or how consideration would have changed the RFC assessment.
In an evaluation of a claimant's subjective complaints, the following factors are relevant: daily activities; the location, duration, frequency, and intensity of pain or other symptoms; precipitating and aggravating factors; type, dosage, effectiveness, and side effects of any medication taken to alleviate pain or other symptoms; treatment, other than medication, used to alleviate pain or other symptoms; any measures used to relieve pain or other symptoms; and other factors concerning functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. § 416.929(c)(3). In evaluating the non-objective evidence, the ALJ is to consider the claimant's "statements about the intensity, persistence, and limiting effects of symptoms" and should "evaluate whether the statements are consistent with objective medical evidence and other evidence." SSR 16-3p, 2016 WL 1119029, at *6. The ALJ may compare the claimant's statements to information she provided to her medical sources regarding the onset, character, and location of her symptoms; factors that precipitate and aggravate her symptoms; the frequency and duration of her symptoms; change in her symptoms; and activities of daily living. Id.
Upon review, the Court finds that the ALJ's decision reflects appropriate consideration of the entire record in accordance with SSR 16-3p. The ALJ provided a thorough discussion of the inconsistencies between Plaintiff's own statements, between her statements and the record evidence, and between her statements and her activities of daily living as well as a discussion of her noncompliance with treatment recommendations. [R. 856-65 (e.g., "[c]ontrary to notes and her statements elsewhere, the claimant reported compliance with checking her blood sugar," "[s]he denied drug use," "the claimant reported living with and caring for her two young grandchildren[ and] childcare, by its very nature, requires a certain degree of lifting, carrying, standing, walking, pushing, pulling, bending, and stooping," Plaintiff "admitted that she was not using her offloading boot as prescribed," "[s]he admitted to peeling her toenails on her left foot despite repeated instructions that doing so would compromise her healing," and "[h]er statement at her hearing and in her adult function report that she has significant fatigue from medication is not supported by complaint to her treating physicians").] And the ALJ properly relied on these inconsistences to determine that Plaintiff's testimony was not fully supported by the record. See 20 C.F.R. § 416.929(c); SSR 16-3p, 2016 WL 1119029, at *9 ("[I]f the individual fails to follow prescribed treatment that might improve symptoms, we may find the alleged intensity and persistence of an individual's symptoms are inconsistent with the overall evidence of record."); Dunn v. Colvin, 607 F. App'x 264, 276 (4th Cir. 2015) (noting that the ALJ appropriately considered non-compliance as one factor in evaluating subjective complaints). Finally, Plaintiff's argument that the ALJ rejected the notion that Plaintiff was limited in her ability to pay for care does not change the Court's conclusion that the RFC determination is supported by substantial evidence. Any error in relying on Plaintiff's ability to buy cigarettes and go to the emergency room to undermine her claim that she could not afford medical treatment is harmless. As stated, the ALJ based her determination that Plaintiff's testimony was not fully supported by the record on the noted inconsistencies and noncompliance. The noncompliance on which the ALJ primarily relied were Plaintiff's smoking and cocaine use, poor diet, failure to check her glucose levels regularly, picking at her skin and toenails, failure to follow wound care instructions, and failure to use an offloading boot, which are not dependent on Plaintiff's ability to pay for medical care. In light of the above, the Court finds that substantial evidence supports the ALJ's decision.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that the Commissioner's decision be AFFIRMED.
IT IS SO RECOMMENDED.
S/ Jacquelyn D. Austin
United States Magistrate Judge September 30, 2020
Greenville, South Carolina