Opinion
C. A. 20-2074-MGL-PJG
07-22-2021
Vickie F. Wilson, Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of the Social Security Administration, [1] Defendant.
REPORT AND RECOMMENDATION
ON PLAINTIFF'S APPEAL FROM THE SOCIAL SECURITY
ADMINISTRATION'S DENIAL OF SOCIAL SECURITY BENEFITS
PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE
[X] Affirm [] Reverse and Remand
This social security matter is before the court for a Report and Recommendation pursuant to Local Civil Rule 83.VII.02 (D.S.C.). The 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 defendant, Commissioner of Social Security (“Commissioner”), denying the plaintiff's claims for social security benefits.
Part I-Plaintiff seeks:
[] Supplemental Security Income (“SSI”): Plaintiff's age at filing: ____
[X] Disability Insurance Benefits (“DIB”): Date last insured: December 31, 2018
[] Other:
Application Dated: June 12, 2017
Plaintiff's Year of Birth: 1953
Plaintiff's alleged onset Dated: April 1, 2017
Part II-Social Security Disability Generally
Under 42 U.S.C. § 423(d)(1)(A), (d)(5), and/or 42 U.S.C. § 1382c(a)(3)(H)(i), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an “inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 20 C.F.R. § 404.1505(a) and/or § 416.905(a); see also Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1973). The regulations generally require the Administrative Law Judge (“ALJ”) to consider five issues in sequence, as outlined below. 20 C.F.R. § 404.1502(a)(4) and/or § 416.920(a)(4). If the ALJ can make a determination that a claimant is or is not disabled at any point in this process, review does not proceed to the next step. Id.
A claimant has the initial burden of showing that he/she is unable to return to past relevant work because of his/her impairments. Once the claimant establishes a prima facie case of disability, the burden shifts to the Commissioner. To satisfy this burden, the Commissioner must establish that the claimant has the residual functional capacity, considering the claimant's age, education, work experience, and impairments, to perform alternative jobs that exist in the national economy. 42 U.S.C. § 423(d)(2)(A) and/or § 1382c(a)(3)(A)-(B); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir. 1980). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983).
Part III-Administrative Proceedings
Date of ALJ Decision: July 2, 2019
In applying the requisite five-step sequential process, the ALJ found:
Step 1: Plaintiff was engaged in substantial gainful activity during the relevant time period:
[] Yes [X] No
Step 2: [X] Plaintiff has the following severe impairments:
degenerative disc disease of the lumbar spine, degenerative joint disease of the right shoulder, neuropathy, and obesity.
[] Plaintiff does not have a severe impairment.
Step 3: [X] Plaintiff's impairment(s) does/do not meet or medically equal a Listing. 20 C.F.R. Part 404, Subpart P, Appendix 1.
Step 4: Plaintiff's Residual Functional Capacity is as follows:
[T]hrough the date last insured, the claimant had the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) except the claimant can frequently push and pull with the upper right extremity. She can never climb ladders, ropes, and scaffolds. The claimant can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl. The claimant can occasionally reach overhead with the right dominant upper extremity. She can have frequent exposure to workplace hazards.
[X] Plaintiff could return to his/her past relevant work.
Date of Appeals Council decision: May 4, 2020
Part IV-Standard of Review
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings “are supported by substantial evidence and were reached through application of the correct legal standard.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also 42 U.S.C. § 405(g); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Thus, the court may review only whether the Commissioner's decision is supported by substantial evidence and whether the correct law was applied. See Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2017); Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980). “Substantial evidence” means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Craig, 76 F.3d at 589; see also Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019); Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015). “Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains ‘sufficien[t] evidence' to support the agency's factual determinations.” Biestek, 139 S.Ct. at 1154 (citation omitted). In reviewing the evidence, the court may not “undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Craig, 76 F.3d at 589; see also Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). Accordingly, even if the court disagrees with the Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock, 483 F.2d at 775.
Part V-Issues for Judicial Review
Plaintiff argues that the ALJ's decision is not supported by substantial evidence because the ALJ erred in (1) rejecting Plaintiff's subjective complaints, (2) assessing the medical opinions in Plaintiff's case, and (3) in determining Plaintiff's residual functional capacity.
Oral Argument:
[] Held on_______.
[X] Not necessary for recommendation.
Summary of Reasons
A. Subjective Complaints
With regard to subjective complaints, the United States Court of Appeals for the Fourth Circuit has stated that “the determination of whether a person is disabled by pain or other symptoms is a two-step process.” Craig v. Chater, 76 F.3d 585, 594 (4th Cir. 1996). The first step requires there to “be objective medical evidence showing the existence of a medical impairment(s) which results from anatomical, physiological, or psychological abnormalities and which could reasonably be expected to produce the pain or other symptoms alleged.” Id. (internal quotation omitted). During the second step, the ALJ must expressly consider “the intensity and persistence of the claimant's [symptom] and the extent to which it affects her ability to work.” Id. In making these determinations, the ALJ's decision “must contain specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms.” SSR 16-3p, 2017 WL 5180304, at *10. ALJs are further instructed to 3
limit their evaluation to the individual's statements about his or her symptoms and the evidence in the record that is relevant to the individual's impairments. In evaluating an individual's symptoms, our adjudicators will not assess an
individual's overall character or truthfulness in the manner typically used during an adversarial court litigation. The focus of the evaluation of an individual's symptoms should not be to determine whether he or she is a truthful person. Rather, our adjudicators will focus on whether the evidence establishes a medically determinable impairment that could reasonably be expected to produce the individual's symptoms and given the adjudicator's evaluation of the individual's symptoms, whether the intensity and persistence of the symptoms limit the individual's ability to perform work-related activities ....Id., at *11.
Further, “claims of disabling pain may not be rejected ‘solely because the available objective evidence does not substantiate [the claimant's] statements' as to the severity and persistence of her pain.” Craig, 76 F.3d at 595 (citations omitted) (alteration in original); see also Arakas v. Comm'r, 983 F.3d 83, 95-96 (4th Cir. 2020) (finding that the ALJ disregarded “longstanding precedent and the agency's own policy by improperly discounting Arakas's subjective complaints of pain and fatigue, based largely on the lack of objective evidence substantiating her statements”). “This is not to say, however, that objective medical evidence and other objective evidence are not crucial to evaluating the intensity and persistence of a claimant's pain and the extent to which it impairs [her] ability to work.” Craig, 76 F.3d at 595. A claimant's subjective complaints “need not be accepted to the extent they are inconsistent with the available evidence, including objective evidence of the underlying impairment, and the extent to which that impairment can reasonably be expected to cause the [symptoms] the claimant alleges she suffers.” Id. The social security regulations inform claimants that in evaluating subjective complaints, the Commissioner will consider the following relevant factors:
(i) Your daily activities;
(ii) The location, duration, frequency, and intensity of your pain or other symptoms;
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any medication you take or have taken to alleviate your pain or other symptoms;
(v) Treatment, other than medication, you receive or have received for relief of your pain or other symptoms;
(vi) Any measures you use or have used to relieve your pain or other symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and
(vii) Other factors concerning your functional limitations and restrictions due to pain or other symptoms.20 C.F.R. § 404.1529(c)(3).
In this case, the ALJ recognized that Plaintiff had alleged multiple physical impairments that prevented her from working. As recounted by the ALJ, Plaintiff testified she could not drive long distances, nor could she sit for extended periods of time without experiencing progressive pain. Plaintiff also complained of excruciating pain in her bilateral feet. (Tr. 20-21.) Nevertheless, the ALJ found that Plaintiff's “statements concerning the intensity, persistence and limiting effects of [her alleged] symptoms are not entirely consistent with the medical evidence and other evidence in the record ....” (Tr. 21.) The ALJ found numerous records, findings, and reports to be inconsistent with the severity of Plaintiff's symptoms, as alleged. Specifically, the ALJ found that the following were inconsistent with Plaintiff's complaints of incapacitating impairments:
• Plaintiff presented with lumbar radiculopathy due to degenerative disease in the lumbar region, but facet joint injections were administered and offered some relief of pain (Tr. 355);
• In various examinations in 2017 and 2018, Plaintiff evidenced “full range of motion” of the lumbar spine with normal gait and station and negative results on some of her straight leg raises (although “mildly positive” on the right) (Tr. 350, 612, 619, 710);
• In April 2019, Plaintiff had a “steady” gait with “mild increased base[, ]” was able to rise from a chair without using her arms, and was able to toe/heel walk (Tr. 805);
• Plaintiff was seen for pain in her right shoulder caused by a rotator cuff tear or rupture, but she received a cortisone injection and reported the pain was “definitely better[, ]” and following physical therapy, it was reported that her range of motion was “significantly improved” and “nearly full” (Tr. 356-57, 672, 674);
• An April 2019 examination showed 5/5 strength in motor abilities and symmetric shoulder shrug (Tr. 805).(See Tr. 21.)
In the decision, the ALJ highlighted how Plaintiff's pain improved with treatment. As referenced above, she received injections and went to physical therapy, which improved the pain in her back and shoulder. She also had a spinal cord stimulator implanted in 2009, which treatment notes showed was well maintained. The ALJ further noted that Plaintiff had continued to complain of pain in her back and legs, but “no treating source ha[d] advised her to undergo any form of invasive surgery in the lumbar spinal region.” (Tr. 21) (citing Tr. 609 and indicating that Plaintiff had reported using her spinal cord stimulator during the day and at night to help relieve pain). In assessing Plaintiff's subjective complaints, the ALJ further considered Plaintiff's daily activities, including her statements to health providers, in which she indicated she could dress, bathe, and feed herself, and could also use the bathroom and walk independently. (Tr. 21) (citing Tr. 697). The ALJ found as follows:
[T]he claimant has not experienced persistent issues related to her physical impairments, which severely affect her capacity to perform all forms of work duties. When reviewed in tandem, the contemporaneous medical evidence shows a trajectory of improvement and, while she exhibits some limitations in her exertional and postural abilities, she is able to perform certain tasks with appropriate treatment and medical management. In fact, even when coupled with the claimant's obesity, the evidence fails to substantiate finding the claimant would be unable to perform activities falling within the confines of the functional capacity identified above. Because there lacks evidence supporting the degree of limitations alleged by the claimant in this case, the undersigned must find the claimant is not disabled.(Tr. 22.) The ALJ also considered the opinions offered by two treating sources, a consultative examiner, and non-examining state agency consultants, and ultimately concluded that Plaintiff's impairments did not prevent her from engaging in work at the sedentary level with some added limitations. (Tr. 22-23.)
Plaintiff argues that the ALJ did not provide specific reasoning for rejecting her testimony regarding her symptoms and pain. She further argues that the ALJ ignored the evidence in the record that supported her hearing testimony, such as the references to her pain in the medical records, thereby cherry-picking from the record to support the ALJ's conclusion. (Pl.'s Br. at 2122, 25-26, ECF No. 21 at 21-22, 25-26.)
Also, in arguing that substantial evidence does not support the ALJ's findings as to Plaintiff's subjective complaints, Plaintiff asserts that the ALJ improperly considered the opinion of one of her treating doctors. The court considers this distinct issue in greater detail below.
After carefully considering Plaintiff's arguments and the record in this matter, the court concludes that Plaintiff has failed to demonstrate that the ALJ's evaluation of Plaintiff's subjective complaints is unsupported by substantial evidence or controlled by an error of law. See Craig, 76 F.3d at 589 (defining “substantial evidence” as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance” and stating that the court may not “undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]”); Blalock, 483 F.2d at 775 (indicating that regardless of whether the court agrees or disagrees with the Commissioner's decision, the court must uphold it if it is supported by substantial evidence). Contrary to Plaintiff's arguments, the ALJ's decision reflects careful consideration of the medical evidence and the limitations stemming from Plaintiff's impairments. Further, the decision addressed the applicable factors in evaluating Plaintiff's subjective complaints. The ALJ's discussion reflects not just consideration of objective medical evidence but also Plaintiff's subjective reports to her medical sources, the treatments that contributed to her “trajectory of improvement, ” and the impact her impairments had on her activities of daily living. Plaintiff has failed to demonstrate the ALJ's evaluation of her subjective complaints is unsupported by substantial evidence in light of all of the above factors and proper reasons offered by the ALJ to discount her allegations of disabling limitations. To reiterate, the court may not substitute its judgment for the Commissioner's and finds that the ALJ's conclusions are within the bounds of the substantial evidence standard. See Craig, 76 F.3d at 589-90 (“Although a claimant's allegations about her pain may not be discredited solely because they are not substantiated by objective evidence of the pain itself or its severity, they need not be accepted to the extent they are inconsistent with the available evidence, including objective evidence of the underlying impairment, and the extent to which that impairment can reasonably be expected to cause the pain the claimant alleges she suffers . . . .”); see also Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1993) (per curiam) (finding that the ALJ may properly consider inconsistencies between a plaintiff's testimony and the other evidence of record in evaluating the credibility of the plaintiff's subjective complaints).
B. Medical Opinions
Within her arguments about the ALJ's treatment of her subjective complaints, Plaintiff asserts that the ALJ's consideration of one of the medical opinions was insufficient under the regulations and the Fourth Circuit's recent opinion in Dowling v. Commissioner of Social Security Administration, 986 F.3d 377 (4th Cir. 2021). The Commissioner disagrees, arguing that Dowling is not applicable to Plaintiff's case and that there was substantial evidence to support the ALJ's decision.
The parties agree that effective March 27, 2017, the federal regulations were amended with regard to applications filed on or after March 27, 2017, and the new regulations enumerated in 20 C.F.R. § 404.1520c are applicable here. The new regulations provide that the ALJ will no longer “give any specific evidentiary weight . . . to any medical opinion(s) . . . including those from [the claimant's] medical sources, ” but the ALJ is still directed to weigh them pursuant to the same factors previously provided for weighing opinion evidence. See 20 C.F.R.§ 404.1520c. The ALJs are instructed to consider and evaluate the persuasiveness of the opinion evidence considering supportability, consistency, relationship with the claimant, specialization, and other factors that tend to support or contradict a medical opinion. Id. Supportability and consistency are the most important factors to consider, and an ALJ must explain how these factors are considered. The ALJ may, but is not required to, explain how the other factors are considered. Id.
Although a treating physician's opinion is no longer entitled to controlling weight, the ALJ's reasons for finding the opinion of a medical source unpersuasive still must be supported by substantial evidence. The United States Court of Appeals for the Fourth Circuit has repeatedly stated that “[a]n 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)); see also Arakas v. Comm'r, 983 F.3d 83, 98 (4th Cir. 2020). Moreover, an ALJ continues to have an obligation to “include a narrative discussion describing how the evidence supports each conclusion.” Monroe v. Colvin, 826 F.3d 176, 190 (4th Cir. 2016) (quoting Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015)); see also SSR 968p. Similarly, remand may be appropriate when the courts are left to guess at how the ALJ arrived at the conclusions and meaningful review is frustrated. Mascio, 780 F.3d at 636-37. The ALJ must “build an accurate and logical bridge from the evidence to his conclusions.” Monroe, 826 F.3d at 189.
Plaintiff asserts that the ALJ did not properly consider the medical opinion of her treating physician, Dr. Pamela Elizabeth Norman Davenport. She claims, “[t]he ALJ found that Dr.
Davenport's opinion was not persuasive but did not specify why.” (Pl.'s Br. at 22, ECF No. 21 at 22.) Plaintiff misstates the record, as the ALJ provided the following explanation of why Dr. Davenport's opinion was deemed unpersuasive:
In April 2019, Elizabeth Davenport, M.D., a treating source, completed a form addressing the claimant's impairments. (Ex. 16F). According to the medical provider, the claimant would be absent four times a month because of her physical impairments. (Ex. 16F). The undersigned finds Dr. Davenport's conclusions are unpersuasive as they are inconsistent with and not supported by the objective medical evidence. Here, the claimant was generally able to perform activities of daily living independently, and advised treating sources that treatment measures were helping with her pain. (See Ex. 13F; Ex. 17F/7; Ex. 7F/3; Ex. 12F/1 -cortisone injections in her right shoulder, and advised treating sources that the pain was “definitely better.”).(Tr. 22-23.)
Plaintiff further argues that Dowling requires that her case be remanded. In Dowling, the Fourth Circuit held:
The ALJ's failure to consider each of the Section 404.1527(c) factors was error. While an ALJ is not required to set forth a detailed factor-by-factor analysis in order to discount a medical opinion from a treating physician, it must nonetheless be apparent from the ALJ's decision that he meaningfully considered each of the factors before deciding how much weight to give the opinion.986 F.3d 377 (4th Cir. 2021). Although Plaintiff acknowledges that 20 C.F.R. § 404.1520c, and not 20 C.F.R. § 404.1527(c), is applicable to her case, she nevertheless argues that Dowling mandates remand of the instant case because the ALJ's decision does not clearly reflect that the ALJ applied the § 404.1527(c) factors. (See Pl.'s Br. at 24-25, ECF No. 21 at 24-25; Pl's Reply at 3-4, ECF No. 24 at 3-4.) Plaintiff's argument is flawed. As outlined above, the factors to be considered in evaluating medical opinions are the same in the regulations, but § 404.1520c expressly states, “[w]e may, but are not required to, explain how we considered the factors in paragraphs (c)(3) through (c)(5) of this section, as appropriate, when we articulate how we consider medical opinions and prior administrative medical findings in your case record.” 20 C.F.R. § 404.1520c(b)(2) (emphasis added). The former regulation contained no such caveat. The Fourth Circuit did not indicate that its findings in Dowling as to how ALJs must consider medical opinions under 20 C.F.R. § 404.1527(c) were similarly applicable to 20 C.F.R. § 404.1520c, and this court declines to extend Dowling in view of the distinguishable language in the new regulation. See Shipbuilders Council of Am. v. U.S. Coast Guard, 578 F.3d 234, 244 (4th Cir. 2009) (“In interpreting statutes and regulations, [courts] have a duty, where possible, ‘to give effect' to all operative portions of the enacted language, including its ‘every clause and word.' ”) (quoting Duncan v. Walker, 533 U.S. 167, 174 (2001)).
Of course, the ALJ's assessment of Dr. Davenport's opinion must still be supported by substantial evidence and in compliance with the applicable regulation. As required by 20 C.F.R. § 404.1520c, the ALJ's analysis of Dr. Davenport's opinion addresses both supportability and consistency. In particular, the ALJ found Dr. Davenport's opinion to be inconsistent and not supported by the objective medical evidence. (Tr. 23.) In support of those findings, the ALJ cited the records from Plaintiff's visits with Dr. Davenport in April, June, and August of 2018. (Tr. 676-734). The ALJ also cited records from Plaintiff's visits with Dr. John Pilch where Plaintiff's gait was described as “steady on mild increased base” and where it was noted she could rise from a chair without the use of her arms and could toe/heel walk. (Tr. 805.) The ALJ cited the opinion from consultative examiner, Dr. W. Russell Rowland, who noted Plaintiff's ability to perform activities of daily living and who observed a normal range of motion in Plaintiff's upper extremities, with the exception of Plaintiff's right shoulder. (Tr. 611.) The ALJ further referenced Plaintiff's report to a treating orthopedist that her pain was “definitely better” following a cortisone injection in her shoulder. (Tr. 674.) The ALJ's discussion indicates that both the supportability and consistency of Dr. Davenport's opinion were considered in accordance with 20 C.F.R. § 404.1520c.
Section 404.1520c(c)(1) explains supportability as follows: “The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical findings will be.”
Section 404.1520c(c)(2) explains consistency as follows: “The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.”
To the extent the ALJ's decision does not expressly discuss the other factors set forth in 20 C.F.R. § 404.1520c(c) as to Dr. Davenport, as already explained above, the applicable regulation expressly does not require the ALJ to discuss them. Based on the foregoing, the court finds that Plaintiff has failed to demonstrate that the ALJ's evaluation of Dr. Davenport's opinion is unsupported by substantial evidence or based on an incorrect application of the law. See also Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001) (stating that “if a physician's opinion is not supported by clinical evidence or if it is inconsistent with other substantial evidence, it should be accorded significantly less weight”) (internal quotation marks & citation omitted); Dunn v. Colvin, 607 Fed.Appx. 264, 267 (4th Cir. 2015) (“An ALJ's determination as to the weight to be assigned to a medical opinion generally will not be disturbed absent some indication that the ALJ has dredged up ‘specious inconsistencies,' . . . or has failed to give a sufficient reason for the weight afforded a particular opinion[.]”) (internal citations omitted).
Plaintiff's argument on this point seems to largely focus on the ALJ's rejection of Dr. Davenport's opinion. However, Plaintiff further offers that Dowling mandates a remand so that the ALJ may reconsider “the substance of Dr. Pilch's questionnaire” in light of the § 404.1527(c) factors. Dr. Pilch opined that Plaintiff was capable of full-time sedentary work, and the ALJ found his opinion to be persuasive, but Plaintiff asserts that the ALJ “ignored conclusions [Dr. Pilch] made that actually contradicted such finding.” (Pl.'s Br. at 22, ECF No. 21 at 22.) She fails to identify what conclusions she believes to be contradictory. Plaintiff's conclusory arguments as to the ALJ's assessment of Dr. Pilch's opinion are unavailing for the same reasons explained above- namely, based on the date of filing, § 404.1520c, and not § 404.1527(c), was applicable to Plaintiff's case, and Dowling does not control.
C. Residual Functional Capacity
A claimant's residual functional capacity (“RFC”) is “the most [a claimant] can still do despite [her] limitations” and is determined by assessing all of the relevant evidence in the case record. 20 C.F.R. § 404.1545(a)(1). In assessing residual functional capacity, an ALJ should scrutinize “all of the relevant medical and other evidence.” 20 C.F.R. § 404.1545(a)(3). Social Security Ruling 96-8p further requires an ALJ to reference the evidence supporting his conclusions with respect to a claimant's residual functional capacity. “Thus, a proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion.” Thomas v. Berryhill, 916 F.3d 307 (4th Cir. 2019). Additionally, “[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) (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)) (alterations in original); see also Monroe v. Colvin, 826 F.3d 176, 188 (4th Cir. 2016).
Plaintiff raises a number of arguments concerning the ALJ's purported over-assessment of her physical RFC, including: (1) the ALJ erred in assessing her complaints of pain, which affected the RFC; (2) the ALJ failed to consider the combined effect of her impairments; and (3) the ALJ relied on an incorrect framework in assessing her RFC and did not fully explain the function-by-function analysis. (Pl.'s Br. at 28-30, ECF No. 21 at 28-30.) Plaintiff contends that she “should have been limited to sedentary work with many more limitations to erode the occupational base.” (Pl.'s Br. at 28, ECF No. 21 at 28.)
As to Plaintiff's argument that the ALJ erred in assessing her subjective complaints, which, in turn, caused errors in his RFC analysis, the court rejects that argument for the same reasons outlined previously. The next argument-that the ALJ did not consider the combined effect of her impairments-is both summary and conclusory and, accordingly, does not warrant in-depth discussion by the court. It is sufficient to note that the decision itself belies that argument. (See Tr. 22) (“[E]ven when coupled with the claimant's obesity, the evidence fails to substantiate finding the claimant would be unable to perform activities falling within the confines of the functional capacity identified above.”); (Tr. 23) (“While the claimant's diagnoses [sic] degenerative disc disease of the lumbar spine, degenerative joint disease of the right shoulder, neuropathy, and obesity, congruently show that her functional abilities are restricted to some degree, they do not prevent her from engaging in work at the sedentary exertional level with the added restrictions.”).
Plaintiff's final arguments that the ALJ relied upon an incorrect regulatory framework and did not properly explain how the RFC was rooted in a function-by-function analysis are similarly unpersuasive. These arguments stem from another holding by the Fourth Circuit in Dowling, 986 F.3d at 386-89. In Dowling, the Fourth Circuit remanded a social security case where “[t]he ALJ's reliance on an incorrect regulatory framework led to an erroneous RFC assessment . . . .” Id. at 388. The Fourth Circuit initially found that the ALJ had not relied on the correct regulatory framework where the ALJ's RFC analysis referenced SSRs 96-7p and 16-3p, which relate to the process by which ALJs evaluate symptoms, but the ALJ never cited 20 C.F.R. § 416.945 or SSR 96-8p and never “indicate[d] that his RFC assessment was rooted in a function-by-function analysis of how Appellant's impairments impacted her ability to work.” Id. at 387. The Fourth Circuit stated that “[o]f course” a claimant's symptoms are relevant to the RFC, “[b]ut an RFC assessment is a separate and distinct inquiry from a symptom evaluation, and the ALJ erred by treating them as one and the same.” Id. The Fourth Circuit then discussed three aspects of the ALJ's RFC analysis that the court found “particularly troubling.” Id. at 388. First, the court held that the ALJ had erred in determining the RFC prior to engaging in a function-by-function analysis. Id. Second, the court held that the ALJ had erred in failing to adequately discuss sitting, a particular function that was critically relevant to Dowling's disability status. Id. at 388-89. In that discussion, the Fourth Circuit reaffirmed that there is no per se rule requiring remand when an ALJ fails to perform a function-by-function analysis, but the court noted Dowling's ability to sit was a “contested” function. Id. Third, the Fourth Circuit identified another aspect of Dowling's RFC that the ALJ failed to consider, which was whether she needed to work near a restroom and take frequent bathroom breaks. Id. at 389.
In the instant case, Plaintiff argues that the ALJ failed to cite to 20 C.F.R. § 416.945. That is true, but since Plaintiff filed for DIB, the applicable regulation is 20 C.F.R. § 404.1545. That corollary section is also entitled “Your residual functional capacity.” The ALJ cited to the proper regulation, as discussed in greater detail below.
The instant matter is distinguishable from Dowling. Unlike in Dowling, the ALJ in Plaintiff's case properly recognized that the RFC analysis was guided by 20 C.F.R. § 404.1545 and SSR 96-8p. (Tr. 17.) The ALJ also noted, “the undersigned has considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence, based on the requirements of 20 CFR 404.1529 and SSR 163p.” (Tr. 20.) Thus, the ALJ seems to have proceeded under the proper regulatory framework.
Like the ALJ in Dowling, the ALJ in Plaintiff's case did not expressly provide a function-by-function assessment within the RFC analysis. However, the ALJ discussed Plaintiff's subjective complaints, her medical history and treatment, her daily activities, and various medical opinions as to her disabilities. In addition, the ALJ found the opinions of the state agency consultants, who had done function-by-function assessments of Plaintiff's abilities, to be “persuasive, being consistent with and supported generally by the objective evidence.” (Tr. 23.) The function-by-function analyses by the state agency consultants, Dr. Matthew Fox and Dr. Stephen Burge, were largely incorporated into the RFC as determined by the ALJ. The state agency consultants' function-by-function analyses were identical. They both opined Plaintiff could: occasionally lift twenty pounds, frequently lift ten pounds, stand/walk for six of eight hours in a workday, and sit for six of eight hours in a workday. Both limited Plaintiff to only frequent pushing and pulling with her right upper extremity. Both also opined that Plaintiff could frequently balance or climb ramps or stairs, but she could only occasionally climb ladders, ropes, or scaffolds, and could only occasionally stoop, kneel, crouch, or crawl. They similarly limited her to only occasional right overhead manipulation and opined that she should avoid concentrated hazards. (Tr. 60-62, 74-77.) Although the state agency consultants' assessments were consistent with light work, see 20 C.F.R. § 404.1567(b), the ALJ apparently gave greater weight to the opinion of Plaintiff's treating source, Dr. Pilch in determining the RFC since the ALJ limited Plaintiff to sedentary work. (Tr. 20.) However, the other limitations-specifically, the push/pull restriction, and the stooping, kneeling, crouching, crawling, and overhead limitations-set forth by the state agency consultants were adopted. (Id.) The ALJ included greater limitations in Plaintiff's ability to climb or balance than had been included in the state agency consultants' function-by-function assessments. (Id.)
Other courts, both in this district and in this circuit, have found that an ALJ adequately builds a logical bridge from the evidence to his or her conclusion when such robust discussion is accompanied by the endorsement of a state agency consultant's opinion that includes a function by-function analysis despite the ALJ's failure to provide such an analysis in his or her own discussion. See Sineath v. Colvin, 1:16CV28, 2016 WL 4224051, at *5 (M.D. N.C. Aug. 9, 2016) (“[A] proper function by function analysis conducted by a state agency consultant can satisfy an ALJ's requirement to conduct a function by function assessment.”); Linares v. Colvin, No. 5:15-CV-00120, 2015 WL 4389533, at *3 (W.D. N.C. July 17, 2015) (“Because the ALJ based his RFC finding, in part, on the function-by-function analysis of the State agency consultant, the ALJ's function-by-function analysis complied with SSR 96-8p.”); see also Wilbanks v. Comm'r Soc. Sec. Admin., Civil Action No.: 1:17-cv-01069-JMC, 2018 WL 4476118, at *3 (D.S.C. Sept. 19, 2018) (“[E]ven after Mascio was handed down, . . . [the court] can still conduct a meaningful review when the ALJ does not conduct an explicit function-by-function analysis[, ] and . . . remanding the action is not necessarily warranted when such an analysis is absent.”); Savage v. Berryhill, C/A No. 5:16-1138-KDW, 2017 WL 3124177, at *10 (D.S.C. July 24, 2017) (finding an ALJ's discussion sufficient to enable meaningful review despite the lack of an explicit function-by-function analysis where part of that discussion included the ALJ giving great weight to a state agency consultant opinion); Johnson v. Colvin, Civil Action No. 6:15-4419-RBH-KFM, 2017 WL 238454, at *9-10 (D.S.C. Jan. 3, 2017) (finding “the ALJ built a logical bridge in his analysis of the plaintiff's RFC and referenced not only the treatment records, but also the consultative and state agency assessment, which supported the range of light work . . . [, ]” and further noting that the ALJ's reference to a state agency consultant's RFC assessment “contribute[d] to [the ALJ's] analysis of the plaintiff's limitations), adopted by 2017 WL 228004 (D.S.C. Jan. 19, 2017). The court finds that here, too, the ALJ successfully built a logical bridge from the evidence to her conclusions where the ALJ discussed Plaintiff's testimony, medical records, treatment, and daily activities, in conjunction with a discussion of state agency consultants' opinions, which included function-by-function analyses, and which the ALJ found to be persuasive. Notably, the ALJ's decision at issue in Dowling did not indicate that the ALJ found the opinions by state agency consultants to be persuasive or entitled to weight. Dowling v. Comm'r Soc. Sec. Admin., C/A No. 5:18-cv-387-MGL, ECF No. 10-2 at 38 (declining to give state agency consultants' opinions full weight due to the substantial amount of evidence received at the hearing level that was not available to the consultants).
Moreover, unlike in Dowling, Plaintiff has not identified any contested functions that are not covered by the state agency consultants' opinions. Plaintiff cites her own testimony to support her contention that she “should have been limited to sedentary work with many more limitations to erode the occupational base.” (Pl.'s Br. at 28, ECF No. 21 at 28.) However, even one of Plaintiff's treating physicians opined that she could perform full-time work at the sedentary level, and the ALJ found that opinion, along with those of the state agency consultants to be persuasive when viewed in conjunction with the record evidence. (Tr. 22-23, 807-08.) Plaintiff bears the burden of producing evidence demonstrating how her impairments affected her functioning during the relevant time period. See 20 C.F.R. § 404.1512(c); Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004) (“The burden of persuasion to prove disability and to demonstrate RFC remains on the claimant, even when the burden of production shifts to the Commissioner at step five.”); Creegan v. Colvin, No. 1:13CV5, 2014 WL 3579659 (W.D. N.C. July 21, 2014) (“It is the claimant's burden, however, to establish her RFC by demonstrating how her impairment impacts her functioning.”).
In his brief, the Commissioner similarly distinguishes the instant case from Dowling by explaining that in Dowling the ALJ had failed to perform an assessment of a critically relevant and contested function. (Def's Br. at 17-18, ECF No. 23 at 17-18.) Plaintiff did not take the opportunity to identify any such contested functions in her reply. Instead, the reply consists primarily of arguments that have been copied and pasted directly from her initial brief.
Based on the foregoing, the court concludes that Dowling does not require remand of this case despite the ALJ's failure to expressly go through a function-by-function analysis in the RFC discussion. Suffice it to say, upon review of the record as a whole, the court finds that Plaintiff has not demonstrated that the ALJ's residual functional capacity analysis and findings are unsupported by substantial evidence or controlled by an error of law. In compliance with applicable law, the ALJ provided a narrative discussion, which included a discussion of the medical and nonmedical evidence as well as the opinion evidence. The ALJ's discussion and RFC determination demonstrate that inconsistencies or ambiguities in the evidence in the case record were resolved, based on the ALJ's review of the medical evidence, Plaintiff's subjective complaints, and the opinion evidence. Further, Plaintiff has failed to direct the court to any evidence that would support additional physical limitations.
Accordingly, upon careful review of the decision, the court finds that Plaintiff's arguments are insufficient to show that the ALJ's residual capacity assessment is unsupported by substantial evidence or is controlled by an error of law.
RECOMMENDATION
It is recommended that this matter be
[X] Affirmed. Plaintiff has failed to show that the Commissioner's decision was unsupported by substantial evidence or controlled by an error of law.
[] Reversed and remanded pursuant to [] Sentence Four [] Sentence Six of 42 U.S.C. § 405(g) for further consideration consistent with this Order.
[] Reversed and remanded for an award of benefits.
The parties' attention is directed to the important notice on the next page.
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).