Opinion
Civil Action No. 6:16-448-RBH-KFM
03-16-2017
Pattie Bordelon, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
REPORT OF MAGISTRATE JUDGE
This case is before the court for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a)(D.S.C.), concerning the disposition of Social Security cases in this District, and Title 28, United States Code, Section 636(b)(1)(B).
A report and recommendation is being filed in this case, in which one or both parties declined to consent to disposition by the magistrate judge.
The plaintiff brought this action pursuant to Sections 205(g) and 1631(c)(3) of the Social Security Act, as amended (42 U.S.C. 405(g) and 1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security denying her claims for disability insurance benefits and supplemental security income benefits under Titles II and XVI of the Social Security Act.
ADMINISTRATIVE PROCEEDINGS
The plaintiff filed applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") benefits on November 7, 2011, and November 15, 2011, respectively, alleging that she became unable to work on March 1, 2011. Both applications were denied initially and on reconsideration by the Social Security Administration. On February 4, 2013, the plaintiff requested a hearing. The administrative law judge ("ALJ"), before whom the plaintiff, her attorney, and Benson Hecker, an impartial vocational expert, appeared on May 20, 2014, considered the case de novo, and on September 12, 2014, found that the plaintiff was not under a disability as defined in the Social Security Act, as amended. During the hearing, the plaintiff amended her alleged onset date to July 1, 2013 (Tr. 73). The ALJ's finding became the final decision of the Commissioner of Social Security when the Appeals Council denied the plaintiff's request for review on December 18, 2015. The plaintiff then filed this action for judicial review.
In making the determination that the plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant meets the insured status requirements of the Social Security Act through June 30, 2016.
(2) The claimant has not engaged in substantial gainful activity since July 1, 2013, the amended alleged onset date (20 C.F.R §§ 404.1571 et seq., and 416.971 et seq.).
(3) The claimant has the following severe impairments: osteoarthritis of the knee, chronic back pain, obesity, depression, anxiety, and somatoform disorder (20 C.F.R. §§ 404.1520(c) and 416.920(c)).
(4) The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 416.920(d), 416.925 and 416.926).
(5) After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b) as follows: The claimant can never climb ladders, ropes, or scaffolds; frequently climb ramps or stairs; occasionally stoop, crouch, kneel, or crawl; would be capable of frequent handling of objects with the right upper extremity; and frequent fingering with the left upper exptremity, and must avoid all use of moving machinery and exposure to unprotected heights. The claimant would be limited to simple, routine, and repetitive tasks; performed in a work environment free of fast-pace production requirements, involving only simple, work-related decisions, and with few, if any, work place changes, with only occasional interaction with the public and coworkers.
(6) The claimant is unable to perform any past relevant work (20 C.F.R. §§ 404.1565 and 416.965).
(7) The claimant was born on November 18, 1964, and was 46 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 C.F.R. §§ 404.1563 and 416.963).
(8) The claimant has a limited education and is able to communicate in English (20 C.F.R. §§ 404.1564 and 416.964).
(9) Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled" whether or not the claimant has transferable job skills (See SSR 82-41 and 20 C.F.R. Part 404, Subpart P, Appendix 2).
(10) Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 C.F.R. §§ 404.1569, 404.1569(a), 416.969 and 416.969(a)).
(11) The claimant has not been under a disability, as defined in the Social Security Act, from July 1, 2013, the amended alleged onset date, through the date of this decision (20 C.F.R. §§ 404.1520(g) and 416.920(g)).
The only issues before the court are whether proper legal standards were applied and whether the final decision of the Commissioner is supported by substantial evidence.
APPLICABLE LAW
The Social Security 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 in 42 U.S.C. § 423(d)(1)(A) as:
the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for at least 12 consecutive months.
To facilitate a uniform and efficient processing of disability claims, the Social Security Act has by regulation reduced the statutory definition of "disability" to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment that equals an illness contained in the Social Security Administration's Official Listings of Impairments found at 20 C.F.R. Part 4, Subpart P, App. 1, (4) has an impairment that prevents past relevant work, and (5) has an impairment that prevents him from doing substantial gainful employment. 20 C.F.R. §§ 404.1520, 416.920. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. §§ 404.1520(a)(4), 416.920(a)(4).
A plaintiff is not disabled within the meaning of the Act if he can return to past relevant work as it is customarily performed in the economy or as the claimant actually performed the work. SSR 82-62, 1982 WL 31386, at *3. The plaintiff bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5). He must make a prima facie showing of disability by showing he is unable to return to his past relevant work. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983).
Once an individual has established an inability to return to his past relevant work, the burden is on the Commissioner to come forward with evidence that the plaintiff can perform alternative work and that such work exists in the regional economy. The Commissioner may carry the burden of demonstrating the existence of jobs available in the national economy which the plaintiff can perform despite the existence of impairments which prevent the return to past relevant work by obtaining testimony from a vocational expert. Id.
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the correct law was applied. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Consequently, the Act precludes a de novo review of the evidence and requires the court to uphold the Commissioner's decision as long as it is supported by substantial evidence. See Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). The phrase "supported by substantial evidence" is defined as:
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."Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) (citation omitted).
Thus, it is the duty of this court to give careful scrutiny to the whole record to assure that there is a sound foundation for the Commissioner's findings and that the conclusion is rational. Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
EVIDENCE PRESENTED
Evidence Before ALJ
During 2010, the plaintiff presented to the emergency room ("ER") at AnMed Health with various complaints including an ankle sprain and cough (Tr. 315, 325, 358). In October 2010, she presented to the ER complaining of right knee pain beginning two months earlier (Tr. 322). On examination, she was in no distress; was calm and cooperative; had normal respiratory, cardiovascular, gastrointestinal, and neurological examinations; had intact motor skills in all extremities; normal sensation; and normal reflexes; but some limited and painful range of motion in the right knee with some tenderness, but no deformity, effusion or swelling (Tr. 323). X-rays of her right knee were benign, and she was cleared to return to work without restrictions (Tr. 323, 411).
In 2011, the plaintiff returned to the ER with various complaints including allergies, a virus, headache, rectal bleeding, and sinusitis (Tr. 329, 333, 339, 346, 352). On February 28, 2011, the plaintiff complained of knee pain for three to four months (Tr. 335). On examination, she was in no distress; was calm and cooperative; had a normal neurological examination with intact motor skills in her extremities and normal sensation; full range of motion in her back and neck; full range of motion in her extremities; and was negative for instability (Tr. 336). A knee x-ray showed minimal early degenerative changes and no malalignment or fracture. She was diagnosed with arthritis and was cleared to return to work without restriction (Tr. 337).
In April 2011, the plaintiff complained of back pain that had started one day earlier after lifting her grandson (Tr. 339). On examination, she had a normal neurological examination; normal sensation; normal reflexes; normal gait; normal coordination; normal speech; normal psychiatric examination; full range of motion in her neck; some paravertebral tenderness in her thoracic spine; normal extremities; and a negative straight leg raising test. She was cleared to return to work without restriction (Tr. 341). On June 27, 2011, the plaintiff returned to the ER complaining of back and right knee pain. The plaintiff reported that when she got out of the car she felt like her right knee "locked up." She complained of trouble straightening it on exam. She had full range of motion in her back; no costovertebral angle tenderness; no vertebral tenderness; normal neurological examination; normal sensation and reflexes; normal mood and affect; full range of motion in the knees; was negative for anterior/posterior instability, bruising, deformity, lateral instability, swelling, and tenderness in the knee, but had some tenderness in the lateral and medial joint lines of her knee; and a negative straight leg raising test bilaterally. X-rays showed mild tricompartmental osteoarthritis (Tr. 343-45, 393-96, 412). The plaintiff was diagnosed with arthritis and chronic back pain and prescribed exercises and anti-inflammatory medication (Tr. 345).
In an adult function report from December 2011, the plaintiff reported that on a daily basis, she wakes up, and if she can walk, she will prepare cereal for breakfast and spend the remainder of the day watching television and lying down (Tr. 276). She reported that she has some difficulty with personal care, but is able to prepare simple meals including, sandwiches, oatmeal, and spaghetti. She can do her own laundry but no household chores, goes outside twice a week, drives a car, shops in stores, and is able to handle her financial affairs (Tr. 278). The plaintiff reported that she regularly reads, watches television, and visits with her daughter (Tr. 279). She averred that she does not need reminders to go places; does not need someone to accompany her; and that her illness does not affect her ability to talk, hear, see, memory, complete tasks, concentrate, understand, follow instructions, or get along with others (Tr. 280). The plaintiff reported that she does not take medications because she cannot afford them, and does not use (and had not been prescribed) a cane, crutch, walker or other device for stability or ambulation (Tr. 280-81).
During examinations in October 2011 and October 2013 for sinusitis and rash, the plaintiff was found to have no musculoskeletal pain, normal extremities, and full range of motion in her back (Tr. 352-5, 438-40).
On January 3, 2012, Kimberly Brown, Ph.D, a state agency psychologist, indicated that there were no mental medically determinable impairments, no evidence of a mental condition, and no longitudinal evidence of any psychiatric care or medication for a mental condition (Tr. 117).
On January 4, 2012, the plaintiff was examined by Stuart Barnes, M.D., at the request of the state agency (Tr. 418-25). The plaintiff reported chronic back and knee pain without radiation; throbbing in the infrascapular region with repetitive overhead reaching; swelling in her feet; swelling and stiffness in hands; and numbness in the right hand. The plaintiff reported that she took no prescription medications, but used only over-the-counter Aleve or Tylenol (Tr. 422). A mental status examination revealed that the plaintiff was slightly depressed, but had normal communication skills, could remember two out of three objects after an exercise, spell several words forwards and backwards, count down by serial threes, calculate a cash transaction, and recall the date, day, location, and president (Tr. 423). On examination, the plaintiff had an antalgic gait favoring the left side and normal neck, cardiovascular, and chest examinations (Tr. 424). Dr. Barnes completed a range of motion chart indicating that the plaintiff had full range of motion in her cervical spine, shoulders, elbows, wrist, hips, and ankles; reduced range of motion in her lumbar spine; straight leg raising to 70 degrees (instead of 90); 4/5 grip strength in her right and left hands, but normal fine and gross manipulation; was able to tandem walk and heel-toe walk; had difficulty squatting and a gait disturbance; no muscle weakness; normal reflexes; and no atrophy (Tr. 419, 424). An x-ray of the plaintiff's right knee revealed minor degenerative changes in the medial right aspect (Tr. 420). An x-ray of the plaintiff's lumbar spine revealed hypertrophic degenerative changes in the lower thoracic and lumbosacral spine (Tr. 421). Dr. Barnes assessed degenerative arthritis in the right knee; chronic back pain; probable depression; and right carpal tunnel syndrome. He opined that the plaintiff would not be able to carry more than 15-20 pounds or perform prolonged standing or standing in place; perform tasks requiring fine bilateral hand manipulation; or bending, stooping, and lifting overhead (Tr. 425).
On February 14, 2012, Jean Smolka, M.D., a state agency physician, reviewed the record and opined that the plaintiff could occasionally lift and carry 20 pounds; frequently lift and carry ten pounds; stand and walk for six hours in an eight-hour workday; sit for six hours in an eight-hour workday; occasionally climb ramps and stairs; never climb ladders, ropes, or scaffolds; frequently balance and crouch; occasionally stoop, kneel, and crawl; was unlimited for reaching; but was limited to frequent fine and gross manipulation in the right upper extremity; must avoid concentrated exposure to odors, fumes, dusts, gases, and poor ventilation; and avoid all exposure to hazards (Tr. 118-21).
On June 20, 2012, Samuel D. Williams, M.D., a state agency psychiatrist, agreed that the plaintiff did not have a medically determinable mental impairment (Tr. 141). On the same date, Robert H. Heilpern, M.D., a state agency physician, reviewed the record and agreed with Dr. Smolka's opinion apart from being able to frequently climb ramps and stairs; occasionally crouch; and was limited to frequent handling and fingering in the right upper extremity (Tr. 142-44).
The plaintiff saw Kim Frommell, M.D., between August 2012 and July 2013. An initial examination in August 2012 revealed that the plaintiff had full range of motion, no edema in her extremities, and a normal psychiatric examination. Dr. Frommell restarted the plaintiff's hypertension medication and omeprazole for gastroesophageal reflux disease ("GERD"), prescribed Celexa for her depression, and recommended Naproxen for her right knee pain (Tr. 432-33).
In November 2012, the plaintiff reported that her mood had not improved, her arthritis was worse, and that she had trouble sleeping. Dr. Frommell increased the dosage of Celexa, refilled the plaintiff's other prescriptions, and discussed over-the-counter pain relievers for the plaintiff's arthritis (Tr. 432). The plaintiff missed her next two appointments (Tr. 430-31), and a record from July 2013 indicates that the plaintiff was started on metformin (Tr. 436).
On July 17, 2013, Ms. Frommell evaluated the plaintiff for routine follow-up. The plaintiff's fasting blood sugar was 189, and her A1C was 6.9 (Tr. 428-29).
The plaintiff returned to the ER on January 4, 2014, when she complained of back and neck pain beginning weeks before after picking up groceries (Tr. 443). On examination, the plaintiff was in no distress or discomfort; she was alert and cooperative and had a normal mental status examination. The plaintiff had no swelling or tenderness in her neck and had full range of motion. She did have some lingering neck pain after pressing on the top of her head. There was no swelling or tenderness in her back, and her extremities were normal without swelling or erythema, and no edema. It was noted that the plaintiff had several similar episodes over the past years. She ambulated with an unusual gait and was diagnosed with back pain.(Tr. 441-43).
On February 28, 2014, the plaintiff was treated in the emergency room for several complaints including hand pain. The plaintiff reported having chronic carpal tunnel in her right hand and arthritis in her left hand. She indicated that her right hand pain caused her to be unable to even hold a pan on that day. The plaintiff was noted to have atrophy of the greater thenar eminence in her right hand (Tr. 444-47).
On March 31, 2014, C. David Tollison, Ph.D., a clinical psychologist, performed an evaluation of the plaintiff regarding her complaints of chronic pain and psychological symptoms (Tr. 460). Dr. Tollison noted that the plaintiff had been diagnosed with "probable depression" in 2012 but had not received any mental health treatment and had been prescribed psychiatric medication on and off since 2007 (Tr. 461-62). The plaintiff reported that she had started on Celexa one year earlier, but switched to Zoloft, which she continued to take. However, she stated she got no benefit from these medications (Tr. 461-62).
The plaintiff reported problems with nervousness and depression since she was six years old when she was molested by her uncle and she tried to commit suicide. The plaintiff indicated that the molestation continued until she got married at age 15. The plaintiff admitted to isolating herself from others and spending her private time ruminating and dwelling on countless situations in her life. The plaintiff reported feeling chronically sad with dysphoric mood and getting very minimal pleasure and satisfaction in living. The plaintiff reported trouble sleeping despite medications as well as crying episodes two to three times per week. Dr. Tollison noted that the plaintiff wept softly on several occasions during her evaluation. The plaintiff reported low energy, struggling with feeling chronically tired, and weight gain. Dr. Tollison indicated that the plaintiff's concentration and memory were impaired due to the distracting nature of both her pain and agitated depression. The plaintiff admitted to three suicide attempts in her life and some passive present suicidal thoughts. Psychiatric examination revealed that she was oriented to time, place, person, and situation; she had intact association, intact thought processes, grossly intact recent and remote memory, a blunted affect, anxious mood, constricted facial expression, and low-average to average intelligence (Tr. 462). She could recite the days in reverse order; calculate simple mathematical equations; spell the word "world" backwards and forwards; and had no hallucinations, delusions, or psychotic symptoms (Tr. 462). The plaintiff's Pain Patient Profile ("P-3") was considered to be valid and placed her in the top 11th percentile for intensity of anxiety, 12th percentile for intensity of somatization, and 23rd percentile for intensity of depression. Dr. Tollison assessed depression disorder not otherwise specified ("NOS"), anxiety disorder NOS, and somatoform disorder, and indicated that the plaintiff had a Global Assessment of Functioning ("GAF") score of 45-50 (Tr. 463-64).
A GAF score is a number between 1 and 100 that measures "the clinician's judgment of the individual's overall level of functioning." See Am. Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental Disorders, 32-34 (4th ed. 2000 Text Revision) ("DSM-IV-TR"). A GAF score between 41 and 50 indicates serious symptoms or any serious impairment in social, occupational, or school functioning. Id. The court notes that the fifth edition of the DSM, published in 2013, has discontinued use of the GAF for several reasons, including "its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice." See Am. Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental Disorders, 16 (5th ed. 2013) ("DSM-V").
Dr. Tollison summarized his findings as follows:
Based upon my evaluation of the patient, review of medical record, and results of psychological testing, it is my opinion Ms. Bordelon is expected to deteriorate, both physically and psychologically, secondary to work pressures, stresses, and demand situations. Her control over psychological symptoms and pain both are poor and psychological symptoms are influential. In addition, it is unlikely she could complete a series
of workdays without interruption from psychological symptoms. Her ability to maintain concentration and attention over time and sufficient for task completion over time is impaired due to the distracting nature of both her physical and psychological symptoms. Finally, from a physical perspective, pain intensity is increased with physical activity and she is quite sedentary in her life. Consequently, it is unlikely she could perform at a consistent pace without an unreasonable number of unscheduled rest periods and breaks. Her condition is chronic and expected to continue over the next twelve or more months. If awarded funds Ms. Bordelon is capable of managing funds.(Tr. 460-75).
At the administrative hearing, the plaintiff reported that she stopped working in October 2011 when she was "let go" from Walmart after calling in sick on multiple occasions (Tr. 73-75). The plaintiff testified that she lived in a mobile home with her boyfriend, daughter, and four grandchildren (Tr. 68). She testified that she has a driver's license and sometimes drives to the store or her daughter's house but spends most of her time watching television or sleeping (Tr. 91, 96). The plaintiff reported that she can prepare simple meals, can wash small loads of laundry, does not go out socially, and uses a computer (Tr. 83-85). The plaintiff testified that she would be unable to perform a job unless she could elevate her feet (Tr. 96).
With regard to her impairments, the plaintiff testified that she cannot stand on her legs, has problems in both knees worse in her right than her left, has no feeling in the fingers on her right hand, is depressed, and has some trouble breathing due to asthma (Tr. 79, 82). She reported being able to stand for 15-20 minutes, sit for 30 minutes, walk for less than 30 minutes, and lift 10-15 pounds (Tr. 82). The plaintiff reported that some of her medications did not work, and she has side effects including sleepiness (Tr. 86-87).
At the administrative hearing, the ALJ asked the vocational expert the following hypothetical:
If you would assume a hypothetical individual who is able to lift up to 20 pounds occasionally; lift or carry up to 10 pounds
frequently. Stand or walk for approximately six hours per eight hour work day; and sit for approximately six hours per eight hour work day with normal breaks. Who can never climb ladders, ropes or scaffolds. Who can frequently climb ramps or stairs. Who can occasionally stoop, crouch, kneel and crawl. Who is limited to frequent right handling of objects, and who is limited to frequent left fingering. Who must avoid all use of moving machinery and avoid all expo-sure to unprotected heights. Can an individual with these limitations per-form claimant's past work as claimant performed it or as customarily performed?(Tr. 101-02). The vocational expert indicated that all three of the plaintiff's past relevant jobs would be doable (Tr. 102). The ALJ's next hypothetical added the following limitation:
that work is limited to simple, routine and repetitive tasks performed in a work environment free of fast-paced production requirements, involving only simple work-related decisions and with few if any workplace changes. With only occasional interaction with the public and only occasional inter-action with coworkers.(Tr. 104). The vocational expert indicated that these limitations would preclude the plaintiff's past work. However, the vocational expert indicated that there would be other light, unskilled work available such as a packer, a housekeeper, and an assembler (Tr. 104-05).
Evidence Submitted To and Considered By Appeals Council
During a new patient visit with Justin Moore, M.D., on May 2, 2014, the plaintiff complained of knee, neck, and back pain. She reported that she was unemployed and in the process of filing for disability. She stated that she took Meloxicam and Tramadol without relief and had difficulty sleeping. The plaintiff had been taking Paxil for depression/anxiety for three weeks, but that it was not helping. She denied suicidal or homicidal ideation (Tr. 478). On examination, the plaintiff had a normal neck; normal pulmonary and cardiovascular examinations; normal gait and station; normal joints, bones, and muscles; normal muscle strength and tone; normal neurological examination; was oriented to person, place and time; and had a normal mood and affect (Tr. 481).
On May 20, 2014, Melody Franks, M.D., of Lakeside Family Medicine, evaluated the plaintiff to establish primary care treatment. The plaintiff was noted to have multiple impairments including benign essential hypertension, diabetes mellitus, depression, anxiety, dysphagia, arthritis, allergic rhinitis, and esophageal reflux. The plaintiff complained of pain in her left shoulder, bilateral knees, and lower back. She also complained of difficulty sleeping and feeling like her depression medications were not working. Dr. Franks reviewed the plaintiff's histories and noted that the plaintiff was 5'2" and weighed 249 pounds. Dr. Franks continued the plaintiff on metformin and omeprazole. Dr. Franks also started the plaintiff on diclofenac sodium, amitriptyline, bupropion, and cyclobenzaprine (Tr. 477-81).
On June 12, 2014, the plaintiff had a follow-up examination with Dr. Franks and reported worsening anxiety and depression, but no suicidal ideation, and denied any medication side effects. She complained of numbness and pins and needles in her hands. She reported right knee pain after a fall and was limping with decreased range of motion, but no swelling, redness, warmth or bruising. On examination, the plaintiff had a normal inspection and palpation of joints, bones, and muscles. She had a normal psychiatric examination revealing a normal mood and affect. Dr. Franks prescribed diclofenac potassium and instructed her to use a glucometer and glucose test strips. Dr. Franks also switched the plaintiff's bupropion to sertraline (Tr. 488-92).
On July 28, 2014, the plaintiff reported neck pain without relieving factors, headache, paresthesias in her upper extremities, and constant pain in her right knee (Tr. 498-99). On examination, the plaintiff had a normal gait and station, some tenderness in the cervical spine, but a normal psychiatric examination. She was oriented to person, place, and time with a normal mood and affect. Dr. Franks evaluated the plaintiff for arthritis, neck pain, headache, and right knee pain. Dr. Franks found the plaintiff to have decreased range of motion in her neck and right knee. The plaintiff reported that turning her head worsened her neck pain and that standing and walking worsened her knee pain. Dr. Franks adjusted the plaintiff's medications including prescribing meloxicam and Depo-Medrol. Dr. Franks referred the plaintiff for an orthopedic evaluation (Tr. 498-502).
On August 4, 2014, the plaintiff's A1C levels had increased to 7.2, so her metformin was increased to twice daily (Tr. 493). During an examination on August 14, 2014, by Dr. Moore, the plaintiff reported that she was asymptomatic from diabetes and denied any medication side effects. The plaintiff reported that her depression was stable, but her anxiety was worse. She denied any medication side effects. The plaintiff reported that her blood pressure was stable with no medication side effects. She denied any radicular symptoms related to her back and neck pain (Tr. 505). On examination, she was in no distress, had a normal pulmonary exam, normal gait and station, and negative Spurling test. She had intact but decreased and painful range of motion in the neck and right knee. She had tenderness to palpation in her cervical spine. The plaintiff had normal motor strength in her arms and hands, normal cranial exam, normal symmetric reflexes, and no sensory loss. The plaintiff was oriented to person, place, and time, and had a normal mood and affect (Tr. 508). Dr. Moore indicated that the plaintiff's recent sugar elevation could have been related to her steroid injection. Dr. Moore indicated that the plaintiff had new onset of a murmur and persistent shortness of breath. He referred her for a cardiology consultation. Regarding the plaintiff's neck pain, Dr. Moore noted that the plaintiff did not yet have red flags for cervical degenerative disc disease. Dr. Moore noted that the plaintiff's patient assistant program could not help the plaintiff with neurosurgery or pain management. Dr. Moore added gabapentin to the plaintiff's medications and indicated that they would only use narcotic medications sporadically. Dr. Moore stopped the plaintiff's prescription for Elavil and increased her dose of Zoloft (Tr. 503-09).
On August 27, 2014, Dr. Castillo, indicated that the plaintiff's knee problem had previously been evaluated including x-rays and an orthopedic evaluation and that she received a steroid injection on July 30, 2014. The plaintiff reported that she got two days of relief from the injection. The plaintiff also reported a history of carpal tunnel and that the digits in her right hand were numb and weak and requested an evaluation (Tr. 513). An examination of the plaintiff's right knee revealed no ecchymosis, effusion, or erythema; some tenderness over the anteromedial aspect; some crepitus; full range of motion; and positive patellar grind, positive bounce home test, and positive medial McMurry test. An examination of the plaintiff's right upper extremity revealed thenar atrophy, but no ecchymosis, erythema or swelling; decreased sensation to light touch of median nerve distribution; no crepitus or warmth; full range of motion; and a positive Phelan's and Tinel's sign at the carpal tunnel (Tr. 515). Dr. Castillo recommended an EMG study of the right carpal tunnel and a right knee arthroscopy and referred the plaintiff to physical therapy for her knees (Tr. 512-16).
Evidence Submitted To But Not Considered By Appeals Council
On July 30, 2014, Jesus Castillo, D.O., evaluated the plaintiff for right knee pain and knee osteoarthritis. Dr. Castillo found positive crepitus with flexion and extension, positive patellofemoral grinding, positive medial joint line tenderness to palpation, and positive pain with medial McMurray's. Dr. Castillo administered an intra-articular injection in the plaintiff's right knee, and he continued the plaintiff on Mobic. Also on July 30, 2014, the plaintiff had right knee x-rays that showed moderate tricompartmental osteoarthritis with medial joint space narrowing and bone-on-bone contact while weight-bearing (Tr. 7, 13, 24-27).
On September 15, 2014, Dr. Moore evaluated the plaintiff for dyspnea, depression, and anxiety. Dr. Moore started the plaintiff on a trial of lorazepam and Ventolin (Tr. 36-39). On September 22, 2014, Dr. Moore evaluated the plaintiff for asthma, depression, and anxiety. The plaintiff complained of intermittent episodes of shortness of breath. Dr. Moore noted that she was cleared for surgery (Tr. 8-12).
On September 29, 2014, Dr. Castillo evaluated the plaintiff and discussed surgical intervention. He noted that the plaintiff had lateral joint line and medial joint line tenderness, crepitus, and positive patellar grind. The plaintiff agreed to undergo surgery (Tr. 15-18).
On October 15, 2014, Dr. Castillo evaluated the plaintiff for surgical follow-up following arthroscopic surgery of the right knee on October 7, 2014. The plaintiff's physical examination was as expected given her post-operative status. Peripheral neurovascular exam revealed intact sensation to light tough and intact gross motor function. Dr. Castillo stated she was doing well, had excellent pain control, and was showing no signs of infection. She was advised to advance activities as tolerated (Tr. 32-35). On October 20, 2014, the plaintiff had an EMG and nerve conduction study of her upper extremities (Tr. 6).
ANALYSIS
The plaintiff was 48 years old on her amended alleged onset date. She has an eighth grade education and can read and write (Tr. 69). She has past relevant work as a cashier, counter helper, and photographer (Tr. 55). The plaintiff argues that the ALJ erred by (1) improperly evaluating the opinions of the consultative examiners and (2) submitting an improper hypothetical to the vocational expert (doc. 16 at 14, 16). The plaintiff further argues that the case should be remanded for consideration of new evidence submitted to the Appeals Council (id. at 26).
Consultative Examiners
The plaintiff argues that the ALJ erred in improperly evaluating the opinions of consultative examiners Drs. Barnes and Tollison (doc. 16 at 16-26). The regulations require that all medical opinions in a case be considered, 20 C.F.R. §§ 404.1527(b), 416.927(b), and, unless a treating source's opinion is given controlling weight, weighed according to the following non-exclusive list: (1) the examining relationship; (2) the length of the treatment relationship and the frequency of the examinations; (3) the nature and extent of the treatment relationship; (4) the evidence with which the physician supports his opinion; (5) the consistency of the opinion; and (6) whether the physician is a specialist in the area in which he is rendering an opinion. Id. §§ 404.1527(c)(1)-(5), 416.927(c)(1)-(5). See also Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005). However, statements that a patient is "disabled" or "unable to work" or similar assertions are not medical opinions. These are administrative findings reserved for the Commissioner's determination. SSR 96-5p, 1996 WL 374183, at *5.
As more fully set forth above, Dr. Barnes examined the plaintiff on January 4, 2012, at the request of the state agency (Tr. 418-25). Dr. Barnes opined that the plaintiff would not be able to carry more than 15-20 pounds or perform prolonged standing or standing in place; could not perform tasks requiring fine bilateral hand manipulation repetitively; and would be unable to do bending, stooping, and lifting overhead (Tr. 425).
The ALJ gave Dr. Barnes" findings "significant weight," finding "the examination was thorough and consistent with the evidence of record" (Tr. 53). Also, in the RFC assessment, the ALJ stated that the RFC finding was supported by "the opinions of the treating physicians and the consultative examining physicians" (Tr. 54). Despite his stated reliance on Dr. Barnes' examination findings, the ALJ did not explain the discrepancies between those findings and the RFC assessment. Specifically, in contrast to Dr. Barnes' findings, the ALJ's assessment of the plaintiff's RFC limited her to light work (Tr. 51), which requires "standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday. Sitting may occur intermittently during the remaining time." SSR 83-10, 1983 WL 31251, at *6. Also, the RFC assessment allowed for occasional stooping and crouching, whereas Dr. Barnes found the plaintiff would be unable to do these (Tr. 51, 425). The RFC assessment also had no restriction on overhead lifting, which Dr. Barnes found the plaintiff could not do (Tr. 51, 425). Dr. Barnes found the plaintiff could not perform fine bilateral hand manipulation repetitively due to her history of carpal tunnel syndrome, but the ALJ found the plaintiff could perform frequent fingering (fine manipulation) with the left upper extremity (Tr. 51, 425).
While the undersigned agrees with the Commissioner that a medical opinion given great weight does not require the adoption of every conclusion in that opinion (doc. 17 at 21), the ALJ here did not articulate any reasoning for the differences. Furthermore, the Commissioner's statement that the only limitation assessed by Dr. Barnes that the ALJ did not accept was the overhead lifting limitation (doc. 17 at 24) is inaccurate as set forth above.
The Commissioner argues that any error is harmless, noting that state agency physician Dr. Smolka found that "Dr. Barnes' extreme limitations regarding Plaintiff's ability to stand, perform tasks requiring repetitive hand manipulation, bend, stoop, and lift overhead were entitled to limited weight because Dr. Barnes issued this opinion after a single encounter, and these extreme limitations were unsupported by Dr. Barnes['] own objective findings as well as the other medical evidence and diagnostic images in record" (doc. 17 at 23 (citing Tr. 120-21)). However, this is post-hoc rationalization not included in the decision. See Golembiewski v. Barnhart, 322 F.3d 912, 916 (7th Cir.2003) ("[G]eneral principles of administrative law preclude the Commissioner's lawyers from advancing grounds in support of the agency's decision that were not given by the ALJ."). When an ALJ fails to explain the basis for his or her conclusions, the court is unable to discharge its duty to determine whether those conclusions are supported by substantial evidence. See, e.g., DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir.1983) ("Judicial review of an administrative decision is impossible without an adequate explanation of that decision by the administrator.").
The plaintiff further argues that the ALJ erred in giving little weight to the opinion of Dr. Tollison (doc. 16 at 16-22), a clinical psychologist who examined the plaintiff on March 31, 2014, and concluded that the plaintiff was "expected to deteriorate, both physically and psychologically, secondary to work pressures, stresses, and demand situations" (Tr. 464). The ALJ found that this statement "leaves anyone with common sense incredulous" as "the claimant has not worked in three years" (Tr. 51). It is unclear to the undersigned why the fact the plaintiff had not worked in three years would render Dr. Tollison's conclusions unbelievable.
The ALJ further stated that "such a debilitating intolerance for any level of stress would not be consistent with a finding that the claimant would be capable of managing her own funds" (Tr. 51). The ALJ stated that he gave Dr. Tollison's opinion little weight because it was "not consistent with, or supported by, the evidence of record" (Tr. 51). Notably, Dr. Tollison performed psychological testing, and, in his report, Dr. Tollison stated that the results of the P-3 psychological test showed that the plaintiff was an obsessively worried, anxious, insecure, cognitively agitated individual who appeared to feel emotionally overwhelmed by her symptoms. Further, the Minnesota Multiphasic Inventory-2 ("MMPI-2") test also showed significant elevations in anxiety, depression, and somatic concentration (Tr. 462-63). In summarizing Dr. Tollison's examination, the ALJ acknowledged the objective testing and that it was considered valid; however, he did not appear to consider the testing as evidence supporting Dr. Tollison's opinion. Here, there were no opinions from treating physicians, and the ALJ gave little weight to the opinions of the non-examining state agency medical consultants who found that the plaintiff had no medically determinable mental impairments (Tr. 54; see Tr. 116-17, 141). While the undersigned certainly agrees with the Commissioner that the ALJ - and not a treating or examining physician - is responsible for assessing a claimant's RFC based on the record evidence (doc. 17 at 20 (citing 20 C.F.R. §§ 404.1546, 416.946)), the ALJ should provide specific reasons for the weight assigned to the opinion evidence, supported by the evidence in the case record. Here, the ALJ has summarily rejected the opinion of a consultative examining psychologist. Based upon the foregoing, the undersigned recommends that the case be remanded to the Commissioner for further consideration of the opinions the consultative examiners, as set forth above.
Remaining Allegations of Error
In light of the court's recommendation that this matter be remanded for further consideration of the consultative examiners' opinions, the court need not address the plaintiff's remaining issues as they may be rendered moot on remand. See Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3d Cir. 2003) (remanding on other grounds and declining to address claimant's additional arguments); Hancock v. Barnhart, 206 F. Supp.2d 757, 763-764 n.3 (W.D. Va. 2002) (on remand, the ALJ's prior decision has no preclusive effect as it is vacated and the new hearing is conducted de novo). As part of the overall reconsideration of this claim upon remand, the ALJ should consider the plaintiff's additional allegations of error in the evaluation of the entire record, including the records submitted to the Appeals Council. Specifically, the plaintiff argues that the ALJ erred in relying on the testimony of the vocational expert as it was based on a flawed hypothetical that did not account for her moderate limitation in concentration, persistence, or pace (doc. 16 at 14-16). Further, the plaintiff argues that, pursuant to Meyer v. Astrue, 663 F.3d 700 (4th Cir. 2011), new evidence submitted to the Appeals Council might have affected the fact-finder's decision as the treatment notes show positive diagnostic findings, consistent complaints of pain, injections, and surgical intervention (doc. 16 at 26-30). The plaintiff also contends that the Appeals Council erred in dismissing the evidence post-dating the ALJ's decision without considering whether or not the evidence related back to the period before the ALJ as required by Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 341 (4th Cir. 2012) ("[R]etrospective consideration of evidence is appropriate when 'the record is not so persuasive as to rule out any linkage' of the final condition of the claimant with his earlier symptoms.'" (quoting Moore v. Finch, 418 F.2d 1224, 1226 (4th Cir. 1969)).
The evidence at issue consists of treatment records from Lakeside Family Medicine dated before and after the ALJ's decision and includes evidence showing the plaintiff had arthroscopic surgery of the right knee approximately one month after the date of the ALJ's decision (Tr. 32-35). The Appeals Council stated that it considered and made the treatment notes dated from May 2014 through August 2014 a part of the record as Exhibit 8F (Tr. 2, 5; see Tr. 475-516). The Appeals Council also stated that it looked at the records dated after the ALJ's decision, but did not consider them because they were about a later time (the ALJ's decision was decided for the time period through September 12, 2014) (Tr. 2; see Tr. 6-40). A treatment noted dated July 30, 2014, was mistakenly included by the Appeals Council in the records post-dating the ALJ's decision (Tr. 7).
While Bird specifically addressed evidence created after a claimant's date last insured, this court has suggested that the holding extends to situations in which evidence arises after the date of an ALJ's decision, but before the Appeals Council makes a decision to grant or deny review. See Wise v. Colvin, C/A No. 6:13-2712-RMG, 2014 WL 7369514, at *6-7 (D.S.C. Dec. 29, 2014) (finding that a treating physician's medical opinion dated three months after the ALJ's decision met the Bird standard and thus it was error for the Appeals Council not to consider it as mandated by Meyer); Dickerson v. Colvin, C/A No. 5:12-33-DCN, 2013 WL 4434381, at *14 (D.S.C. Aug. 14, 2013) (holding that a medical opinion dated more than a year after the ALJ's decision was new and material evidence that warranted remand). --------
CONCLUSION AND RECOMMENDATION
Now, therefore, based on the foregoing, it is recommended that the Commissioner's decision be reversed pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be remanded to the Commissioner for further consideration as discussed above.
IT IS SO RECOMMENDED.
s/ Kevin F. McDonald
United States Magistrate Judge March 16, 2017
Greenville, South Carolina