Opinion
Civil Action No. 2:16-cv-03352-MBS-MGB
01-18-2018
Angie M. Bradberry, Plaintiff, v. Nancy Berryhill, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This case is before the Court for a report and recommendation pursuant to Local 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).
The Plaintiff, Angie M. Bradberry, brought this action pursuant to Section 1631(c)(3) of the Social Security Act, as amended (42 U.S.C. § 1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security ("the Commissioner") regarding her claim for supplemental security income benefits ("SSI") under Title XVI of the Social Security Act, as amended (the "Act"). For the reasons set forth herein, the undersigned recommends reversing the decision of the Commissioner and remanding for further consideration.
RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS
The Plaintiff was 44 years old on the date she applied for supplemental security income. (R. at 40, 176.) She alleged disability beginning July 1, 2010 due to fibromyalgia, obesity, cervical and lumbar degenerative disc disease, COPD, carpal tunnel syndrome, and bipolar disorder with depressive symptoms and panic attacks. (R. at 21, 176.) Plaintiff has a high school education and past relevant work as an assembler. (R. at 40, 58-59.)
The Plaintiff filed an application for SSI on July 21, 2010. (R. at 176.) Her application was denied initially and on reconsideration. (R. at 176.) After a hearing before Administrative Law Judge (ALJ) Avots on August 3, 2012, Judge Avots issued an unfavorable decision on December 20, 2012. (R. at 176-90.) On March 27, 2014, the Appeals Council remanded the case to the ALJ with instructions. (R. at 198-99.)
The record also contains Judge Avots' unfavorable decision dated June 30, 2010. (See R. at 148-59.)
After a hearing before ALJ Wilson on November 14, 2014, ALJ Wilson issued an unfavorable decision on May 21, 2015. (R. at 18-42.) The Appeals Council denied Plaintiff's request for review, (R. at 1-5), making ALJ Wilson's decision the Commissioner's final decision for purposes of 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 has not engaged in substantial gainful activity since July 21, 2010, the application date (20 CFR 416.971 et seq.).
(2) The claimant has the following severe impairments: fibromyalgia, obesity, cervical and lumbar degenerative disc disease with radiculopathy, COPD, carpal tunnel syndrome and bipolar disorder with depressive symptoms and panic attacks (20 CFR 416.920(c)).
(3) The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).
(4) 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). The claimant can lift and/or carry up to 20 pounds occasionally and up to 10 pounds frequently. She can stand/walk and/or sit for up to 6 hours in an 8-hour workday. The claimant can never climb ropes, ladders or scaffolds. She can occasionally crawl, crouch, kneel, stoop, balance or climb. Overhead reaching is limited to occasional. The claimant must avoid concentrated exposure to hazards or fumes. The claimant is limited to simple, 1 or 2-step tasks.
(5) The claimant is capable of performing past relevant work as an assembler. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 416.965).
(6) The claimant has not been under a disability, as defined in the Social Security Act, since July 21, 2010, the date the application was filed (20 CFR 416.920(f)).(R. at 21-41.)
APPLICABLE LAW
The Act provides that SSI disability benefits shall be available for aged, blind, or disabled persons who have income and resources below a specific amount. 42 U.S.C. § 1381 et. seq.; 20 C.F.R. § 416.110. "Disability" is defined in the Act 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 twelve months." 42 U.S.C. § 1382c(a)(3)(A).
To facilitate a uniform and efficient processing of disability claims, the 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 which equals an illness contained in the Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) has an impairment which prevents past relevant work; and (5) has an impairment which prevents him from doing substantial gainful employment. See 20 C.F.R. § 416.920; see also Brown v. Comm'r, 873 F.3d 251, 254-55 (4th Cir. 2017). If an individual is found not disabled at any step, further inquiry is unnecessary. See 20 C.F.R. § 416.920; see also Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981). The plaintiff "bears the burden of production and proof during the first four steps of the inquiry." Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). If the plaintiff "is able to carry this burden through the fourth step, the burden shifts to the Secretary in the fifth step to show that other work is available in the national economy which the claimant could perform." Id. at 1203.
The scope of judicial review by the federal courts in disability cases is "limited to determining whether the findings of the Secretary are supported by substantial evidence and whether the correct law was applied." Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); see also Richardson v. Perales, 402 U.S. 389 (1971). 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. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing 42 U.S.C. § 405(g); Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). The phrase "substantial evidence" is defined as:
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Substantial evidence consists of more than a mere scintilla of evidence but may be less than a preponderance.Smith v. Chater, 99 F.3d 635, 637-38 (4th Cir. 1996) (internal quotation marks and citations 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 his 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).
DISCUSSION
The Plaintiff contends that the ALJ erred in failing to find her disabled. More specifically, Plaintiff contends the ALJ erred "by assigning only 'limited weight' to the medical source opinions of all the physicians that treated or examined [Plaintiff] while assigning 'great weight' to the medical sources that only performed chart reviews of an incomplete medical record." (Dkt. No. 14 at 15.) Plaintiff also asserts the ALJ "erred by failing to comply with SSR 96-7p to reject [Plaintiff's] testimony regarding the severity of her symptoms and limitations." (Dkt. No. 14 at 27.) She further contends the ALJ's "residual functional capacity finding of light work is not supported by substantial evidence where the prior decision by Judge Avots limited [Plaintiff] to sedentary work." (Dkt. No. 14 at 32.) According to Plaintiff, the ALJ also erred "by failing to comply with 20 C.F.R. § 416.945(a)(3) and SSR 96-7p by not mentioning or evaluating the supportive lay testimony of [Plaintiff's] daughter." (Dkt. No. 14 at 35.) Finally, Plaintiff asserts the ALJ "erred by ignoring the vocational expert's testimony at the hearing that there was no work [Plaintiff] can perform upon a proper consideration of all her limitations." (Dkt. No. 14 at 38.) The undersigned considers Plaintiff's arguments below.
A. Treating and Examining Physicians
Under the regulations of the Social Security Administration, the Commissioner is obligated to consider all medical evidence and the opinions of medical sources, including treating physicians. See 20 C.F.R. § 416.927. The regulation, known as the "Treating Physician Rule," imposes a duty on the Commissioner to "evaluate every medical opinion we receive." 20 C.F.R. § 416.927(c). Special consideration is to be given to the opinions of treating physicians of the claimant, based on the view that "these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations." 20 C.F.R. § 416.927(c)(2). Under some circumstances, the opinions of the treating physicians are to be accorded controlling weight. Even where the opinions of the treating physicians of the claimant are not accorded controlling weight, the Commissioner is obligated to weigh those opinions in light of a broad range of factors, including the examining relationship, the nature and extent of the treatment relationship, supportability of the opinions in the medical record, consistency, and whether the treating physician was a specialist. 20 C.F.R. § 416.927(c). The Commissioner is obligated to weigh the findings and opinions of treating physicians and to give "good reasons" in the written decision for the weight given to a treating source's opinions. SSR 96-2P, 1996 WL 374188, at *5; see also 20 CFR § 416.927(c)(2).
The undersigned notes that the "Treating Physician Rule," which applies in the instant action, applies only to claims filed before March 27, 2017. See 20 C.F.R. § 416.920c; see also Marshall v. Berryhill, Civ. A. No. 16-cv-00666-BAS-PCL, 2017 WL 2060658, at *3 n.4 (S.D. Cal. May 12, 2017).
Although SSR 96-2p has been rescinded for claims filed on or after March 27, 2017, SSR 96-2p applies to the court's analysis in this action. See, e.g., Reyes v. Berryhill, Civ. A. No. 16-10466-DJC, 2017 WL 3186637, at *7 n.5 (D. Mass. July 26, 2017).
In the first allegation of error in this case, Plaintiff asserts three opinions are at issue: the opinions of two treating physicians and one examining physician. (Dkt. No. 14 at 15.) Plaintiff contends the ALJ "failed to properly evaluate the opinions of [Plaintiff's] treating and examining physicians." (Dkt. No. 14 at 15.) Plaintiff states, inter alia,
All of [Plaintiff's] treating physicians--along with the examining physician--agree that [Plaintiff] is unable to maintain gainful employment due to her chronic pain and mental impairments. Nonetheless, rather than give these internally consistent opinions of the treating and examining physicians the weight they deserved, the ALJ dismissed the opinions and improperly: (1) relied on the testimony of consulting medical experts to discredit ALL of the medical testimony and evidence concerning the severity of [Plaintiff's] impairments or (2) made outright erroneous assertions of fact.(Dkt. No. 14 at 17.) Plaintiff asserts that all of the "medical sources that actually personally evaluated" Plaintiff "agree that, due to her pain, [Plaintiff] is unable to concentrate in order to sustain any gainful work activity." (Dkt. No. 14 at 17-18.) After careful review of the record in this case, the undersigned recommends reversing the Commissioner's decision, as the evaluation of Dr. Netherton's opinion does not comport with the treating physician rule.
Dr. Netherton, a pain specialist, is one of Plaintiff's longtime treating physicians, and the administrative record contains many medical records pertaining to his treatment, as well as several of his opinions. In a letter dated July 18, 2011, Dr. Netherton noted that he has been treating Plaintiff since February of 2008. (R. at 578.) He indicated that Plaintiff "has multilevel degenerative lumbar spine disease with cervical degeneration and cervical radicultis." (R. at 578.) He noted Plaintiff "has been through a multitude of treatments" in his clinic "and has had lumbar spine surgery as well as multiple injections, physical therapy, and pain medications." (R. at 578.) Dr. Netherton's letter further states,
We really do not have any other significant options for Ms. Bradberry at this time. She is not a candidate for surgical fixation. She is not really a candidate for any other significant procedures. We will continue her on pain medications with injections as needed. She will continue to need medications for a prolonged period of time.(R. at 578.)
Ms. Bradberry is permanently and totally disabled. I do not feel she is ever going to be able to pursue any type of gainful employment. She has limited activities of daily living. We have asked her to limit the amount of things she lifts as well as to avoid any stress or strain on her cervical spine or low back area.
Ms. Bradberry is unable to sit for more than 90 minutes at a time and is not able to stand for more than 60 minutes without changing position. She cannot lift more than 6 pounds and should avoid twisting, bending, squatting, or lifting. She should also avoid driving a motor vehicle or the use of any mechanical device that could cause her harm while taking medications. She is impaired to some degree when taking her regular medications.
In a letter dated March 18, 2013, Dr. Netherton stated as follows:
Ms. Bradberry is a patient whom I have followed in our office since February, 2008. She has multilevel cervical and lumbar degenerative spine disease. She has been under our care through a multitude of treatments including injections, medications, physical therapy, and continues with treatment through our office. She has no other significant options available to her. She is not a candidate for corrective surgery in either of her cervical or lumbar area, and at this time, continues to be the same. At this time, I would say within a reasonable degree of medical certainty that M[s]. Bradberry is permanent[ly] and totally disabled. She is not going to be able to pursue any type of gainful employment as she has significant pain, she has significant impairment in the ability to function, and her activities are quite limited. This does include both her cervical and lumbar spine. She is unable to lift more than 6 pounds. She is unable to sit for more than about 15-20 minutes at a time possibly up to 30. She cannot walk or stand for more than 10 minutes at a time without changing positions. All of these restrictions are permanent, and are going to be for the foreseeable future. I do not think that she is going to change significantly, in fact, her degeneration would probably progress as time goes on, and at this time, we will continue to treat her as needed.(R. at 892.) Dr. Netherton also completed a medical source statement and a clinical assessment of pain form, both dated this same day. (R. at 894-99, 901-03.)
Dr. Netherton's medical source statement indicated that, from July of 2011 to the present (March of 2013), Plaintiff had the capacity to occasionally lift and/or carry less then ten pounds "to minimize stress to degenerated discs." (R. at 894.) However, she could not frequently lift anything. (R. at 894.) Dr. Netherton indicated that Plaintiff was able to stand and/or walk up to one hour in an eight-hour workday; she was able to sit for three hours in an eight-hour workday. (R. at 895.) He indicated that Plaintiff could occasionally kneel but never climb, balance, stoop, or crawl. (R. at 895.) He indicated Plaintiff could rarely push/pull and occasionally reach, handle, and feel. (R. at 896.) Dr. Netherton indicated that Plaintiff tolerates stress poorly, and that her cognition is affected by her pain medication. (R. at 897.) Dr. Netherton indicated that his diagnoses were confirmed by objective findings. (R. at 897.) He also indicated that he was not basing his opinions primarily on Plaintiff's subjective complaints but instead was basing them "mostly on exam and MRI findings." (R. at 897.) Dr. Netherton opined that Plaintiff was not capable of full-time work, even at a sedentary level. (R. at 899.) He referred to Plaintiff's lumbar MRI to support his restrictions and limitations. (R. at 899.)
Dr. Netherton completed a clinical assessment of pain, wherein he indicated that physical activity (such as walking and standing) is likely to greatly increase Plaintiff's pain "to such a degree as to cause distraction from the task or even total abandonment of the task." (R. at 901.) He indicated that Plaintiff's medications can be expected to produce significant side effects "to limit effectiveness of work duties or the performance of daily tasks such as driving an automobile." (R. at 901.) Dr. Netherton opined that pain would interfere with Plaintiff's ability to maintain concentration throughout an eight-hour day. (R. at 902.) The "comments" section of his assessment states, "Ms. Bradberry is not capable of doing much more than activities of daily living. She has pain with almost any activity--even at home she is quite sedentary because of pain." (R. at 903.)
The ALJ discussed Dr. Netherton's opinions in detail and attributed "limited weight" to his opinions. (See R. at 35.) In making that conclusion, the ALJ stated, inter alia,
I note that these findings are inconsistent with the objective findings discussed above and the claimant's reported daily activities. For instance, at prior hearings, the claimant testified that she drives to the store a few times a week. She goes into town two or three times a week to pick up groceries. The claimant can wash clothes, take a shower and wash a few dishes. She can prepare simple meals. Consultative examiner Dr. Moody noted that the claimant has a driver's license and can prepare simple meals. She can manage her own money, bathe and dress herself independently. However, she reports neglecting her personal hygiene due
to depression (Exhibit B7F). Dr. Wiley noted that the claimant had appropriate grooming and hygiene (Exhibit B35F). In her Function Report, claimant states that she feeds her dog, showers, checks the mail, washes clothes, folds laundry, dusts, and washes dishes. She is able to pay bills, count change, handle a savings account, and use a checkbook (Exhibit B4E). In a Third Party Function Report, the claimant's daughter indicates that the claimant showers and prepares simple meals. She also cares for her dog. While she needs some assistance with personal care due to physical problems, she is able to perform light chores such as dusting and folding clothes. She can drive, shop for groceries, count bills, count change, handle a savings account and use a checkbook (Exhibit B8E). In a more recent Function Report, the claimant indicates that her day consists of showering, feeding her dog, and walking a little. She needs occasional help with personal care, but she can prepare simple meals, perform light household chores, shop in stores, pay bills, count change, use a savings account and use a checkbook (Exhibit B10E).(R. at 35-36.)
The ALJ noted that "[t]he opinions are inconsistent with respect to sitting tolerances." (R. at 36.) He noted that the frequency of Plaintiff's trips back and forth to Charleston (which require a 3.5 hour drive) "suggest[s] the [Plaintiff's] sitting ability is far greater than opined by both physicians." (R. at 36.) The ALJ pointed to Dr. Netherton's report that Plaintiff's "symptoms wax and wane and that magnetic imaging did not reveal surgical pathology and he did not see any significant recurrent disc herniation (Exhibit B33F)." (R. at 36.) The ALJ opined that such a statement is "inconsistent" with Dr. Netherton's opinion that Plaintiff's "pain is so profound and intractable that it incapacitates" the Plaintiff. (R. at 36.) But the exhibit to which the ALJ points--Exhibit B33F--is comprised of records from 2000 and 2001. (R. at 876-80.) Of course, Dr. Netherton's 2011 and 2013 opinions indicate Plaintiff is not a candidate for surgery. (See R. at 578, 892.) However, it is not clear to the undersigned that Dr. Netherton's opinion is not to be believed because he did not recommend surgery. See, e.g., Garcia v. Astrue, 10 F. Supp. 3d 282, 293-94 (S.D.N.Y. 2012) (finding the ALJ "placed undue weight on Dr. Bajwa's finding that Plaintiff was not a candidate for surgery," stating, "The fact that Plaintiff's condition could not be corrected by surgery does not establish that it was not disabling; it simply means it could not be treated surgically.").
Moreover, Plaintiff's complaints, at least during the at-issue time period--have been quite consistent. In August of 2010, Plaintiff reported her pain as a ten out of ten; she appeared with an antalgic gait. (R. at 423.) She had 4/5 musculoskeletal strength in her bilateral upper extremities; her grip strength was equal bilaterally but weak at a 3/5. (R. at 423.) In October of 2010, Plaintiff reported her pain was unbearable and that she had "taken so many advil, ibuprofen, and BC powders that she has messed up her stomach and she vomits"; she reported that she did not sleep due to the pain. (R. at 462.) In January of 2011, Plaintiff reported feeling that "her pain is never under control" and that she is "still 'up and down' at night." (R. at 520.) In February of 2011, she continued to complain of neck and back pain; she reported falling on January 29, 2011. (R. at 524.)
This record also indicates that Plaintiff had been discharged from Dr. Netherton's practice due to "financial issues (discharged by the practice owing to unpaid balance)." (R. at 462.)
On February 15, 2011, Plaintiff rated her pain as an 8/9 on a ten-point scale and stated the pain was "worse with anything she does and better really with nothing." (R. at 544.) Plaintiff "ambulate[d] into the clinic . . . with an antalgic gait" and had "a 4/5 muscuolskeletal strength in the bilateral upper extremities." (R. at 544.) Plaintiff's grip strength was equal bilaterally. (R. at 544.) On February 24, 2011, Plaintiff's OxyContin was increased from 40mg twice a day to 60mg twice a day; she was also prescribed Lyrica 150mg three times a day and continued on Phenergan and Flexeril. (R. at 541.) Plaintiff received a cervical steroid epidural injection that day. (R. at 722.)
On March 24, 2011, Plaintiff rated her pain as an 8 to 9 out of ten and indicated that her pain is "worse with weather changes and . . . better with rest, blocks, and medications." (R. at 536.) Plaintiff indicated that Lyrica was helping her pain; she also stated the cervical epidural injection did help but that she felt like she would need another soon. (R. at 536.) Plaintiff's Lyrica was increased, and she was given Roxicodone to take mid-day. (R. at 536.)
On April 21, 2011, Plaintiff ambulated into the clinic with an antalgic gait, but her motor skills and muscle tone were "grossly intact." (R. at 588.) Plaintiff requested more narcotics, stating that "her breakthrough medication is just not enough and that she needs something in the middle of the night." (R. at 588.) Plaintiff was informed that they "would be happy to give her some medication to help her rest" but "did not want to put more narcotics on board." (R. at 588.)
A report pertaining to Plaintiff's lumbar MRI on April 22, 2011 stated, inter alia,
INTERVERTEBRAL DISCS:
L1-2, L2-3, L3-4. Mild noncompressive spondylosis.(R. at 579.)
L4-5. Moderate facet arthropathy, signal loss, an annular tear at a central and left-sided protrusion. There is mild displacement of the right and moderate displacement of the left L5 nerve root.
L5-S1. Severe right and moderate left facet arthropathy. Signal loss in the left lateral recess protrusion of disc material. There is severe left lateral recess stenosis and severe right exit stenosis. There's been a previous right laminectomy with enhancing granulation tissue.
Plaintiff received a cervical steroid epidural injection on May 19, 2011. (R. at 723.) In June of 2011, Plaintiff reported continued pain in her low back "worse with activity and better with rest and medications." (R. at 590.) Plaintiff ambulated with an antalgic gait, but her motor skills and muscle tone were grossly intact. (R. at 590.) Plaintiff's OxyContin and Roxicodone were continued, and her Phenergan was increased; Lyrica was decreased on taper, and Cymbalta was added. (R. at 590.) Plaintiff received a cervical steroid epidural injection on July 14, 2011. (R. at 724.) On July 2011, Plaintiff reported having a bad month and described the pain "as aching, worse with walking, and better with rest." (R. at 591.) Plaintiff reported that, in addition to her prescribed medications, she had "been taking lots of headache powders and lots of ibuprofen." (R. at 591.) She walked with an antalgic gait; her motor skills and muscle tone are grossly intact. (R. at 591.) Because she had an allergic reaction to Cymbalta, Cymbalta was stopped and Savella was started. Plaintiff's OxyContin was increased, and Plaintiff "was advised that this is the highest that this pain mediation goes." (R. at 591.)
In August of 2011, Plaintiff complained of continued back pain that was "worse with increased activity, and better with blocks and medications." (R. at 593.) Her motor skills and muscle tone were "grossly intact," but she ambulated with an antalgic gait. (R. at 593.) In January of 2012, Plaintiff ambulated with an antalgic gait and had "4/5 musculoskeletal strength in her bilateral upper extremities." (R. at 594.) Plaintiff's "grip strength [was] equal bilaterally but weak at 3/5"; Plaintiff had "4/5 musculoskeletal strength in the bilateral lower extremities." (R. at 594.) She had a negative straight leg raise bilaterally. (R. at 594.) Plaintiff was continued on Roxicodone, OxyContin, Lunesta, Flexeril, Phenergan, and Savalla; the notes indicate these medications "do help her pain." (R. at 594.)
On April 6, 2012, Plaintiff rated her pain as a 9/10 on the numeric analog scale. (R. at 596.) In July of 2012, she rated her pain as an 8/10 on the numeric analog scale. (R. at 883.) She walked with an antalgic gait and had 4/5 strength in her upper and lower extremities bilaterally. (R. at 883.) Grip strength was 4/5 and equal bilaterally. (R. at 883.) She had a positive straight leg raise on the right and negative on the left. (R. at 883.) Plaintiff had a cervical epidural steroid injection on July 12, 2012. (R. at 885.) She reported continued pain in October of 2012 but indicated her medications helped. (R. at 1099.) She had an antalgic gait but 5/5 strength in her bilateral lower extremities. (R. at 1099.) She had a positive straight leg raise on the right and a negative straight leg raise on the left. (R. at 1099.)
On January 3, 2013, Plaintiff reported continued pain in her neck, bilateral upper extremities, lower back, and bilateral lower extremities. (R. at 1092.) She reported feeling needles in her feet and indicated her pain was worse with standing and better with blocks and medications. (R. at 1092.) She reported several falls. (R. at 1092.)
Plaintiff had a lumbar MRI on January 4, 2013. (R. at 1097.) The report as to the MRI indicated, inter alia, that as to L4-5, there was "moderate to severe right and severe left lateral recess stenosis with potential compression of the L5 nerve root." (R. at 1097.) As to L5-S1, the report stated, "Moderate facet arthropathy, a right laminectomy, signal loss and sclerotic osteophytes. There are enhancing Modic changes. There is severe right exit stenosis." (R. at 1097.)
Plaintiff also had a cervical MRI on January 3, 2013. (R. at 1096.) The "opinion" section of that report states,
MRI of the cervical spine including multi-planar reformations shows a normal spinal cord and spondylosis with a moderate probability of nerve root compression at C4-5 and a moderate to high probability of nerve root compression at C5-6.(R. at 1096.)
On February 5, 2013, Plaintiff reported some improvement, rating her pain as a 6-7 on the numeric analog scale. (R. at 1088.) She reported another fall as well as occasional numbness in her feet. (R. at 1088.) In April of 2013, Plaintiff reported her pain as 7 on the numeric analog scale. (R. at 1078.) She had 5/5 strength in her right upper extremity and 4/5 on the left. (R. at 1078.) She had positive straight leg raise on the right and negative on the left. (R. at 1078.)
In July of 2013, Plaintiff reported continued pain; she also reported "dropping things with her arms." (R. at 1074.) She indicated her pain was worse with walking and better with leaning forward. (R. at 1074.) She had 4/5 strength in her lower bilateral extremities, a positive straight leg raise on the right and negative on the left. (R. at 1074.) Reports were similar in September of 2013, but she had negative straight leg raises bilaterally. (R. at 1070.) In December of 2013, Plaintiff reported "doing okay" but indicated she continued to have pain in her neck, low back, and legs. (R. at 1066.)
In February of 2014, Plaintiff rated her pain as an 8 on the numeric analog scale. (R. at 1062.) She had 4/5 strength on the lower extremities bilaterally and negative straight leg raises bilaterally. (R. at 1062.) Muscle tone was normal, but she was stiff on exam and walked with an antalgic gait. (R. at 1062.) The notes from April of 2014 are very similar. (R. at 1058.) In May of 2014, Plaintiff reported continued pain, describing the pain as an 8/10 on the numeric analog scale. (R. at 1054.) Plaintiff stated that medication "simply take[s] the edge off." (R. at 1054.)
Plaintiff had another lumbar MRI on May 13, 2014. (R. at 1048-49.) As to "level specific findings," the MRI report states, inter alia,
L4-L5: Broad-based asymmetric disc bulge and bilateral facet arthropathy causing some spinal canal narrowing worse on the left. There is moderate left worse than right-sided lateral recess encroachment with likely compression of the left more so that right sided L5 root.(R. at 1048-49.) The "impression" section of this report states:
L5-S1: Modic type changes at L5-S1. There is left-sided asymmetric protrusion causing significant left S1 root impingement. Bilateral 1 cm non-enhancing likely Tarlov cyst in the left inferior sacral foramina.
Degenerative changes at L4-5 with moderate left worse than right sided lateral recess narrowing likely causing worse left than right L5 root impingement.(R. at 1049.)
There is also left-sided disc protrusion at L5-S1 causing significant left S1 root impingement.
In July of 2014, Plaintiff reported pain all over her body. (R. at 1050-51.) Plaintiff described the pain "as a 6 out of 10 on the Numeric Analog Scale" and indicated the pain was worse with increased activity. (R. at 1050.) In November of 2014, Plaintiff's posture "remain[ed] slightly forward with some tenderness in the mid to lower cervical spine and paraspinal muscles, left greater than right." (R. at 1108.) Plaintiff's "[s]ensation remain[ed] slightly altered in stocking/glove distribution." (R. at 1108.) Dr. Burnette noted that the EMG and nerve conduction studies of Plaintiff's upper extremities "were abnormal . . . with some signs of chronic possibly C6 radiculopathy on the left as well as bilateral carpal tunnel syndrome." (R. at 1108.) Notes from January 16, 2015 indicate that Plaintiff had been previously scheduled for nerve conduction studies and EMG of her lower extremities, but the studies had been put off because she was feeling poorly on the day the studies were scheduled. (R. at 1107.) Dr. Burnette noted that Plaintiff "ambulate[d] with slightly forward posture and start-up pain." (R. at 1107.) In light of the foregoing, the 2001 notation that Plaintiff's symptoms wax and wane, and Dr. Netherton's statement that Plaintiff is not a candidate for surgery, are not "good reasons" to discount Dr. Netherton's opinions.
However, the ALJ further stated,
[E]arly records indicate that claimant was only using over-the-counter medication for pain (Exhibit B4E, B13E and B14E). I note Dr. Netherton uses terms such as "rarely" which is vague and not defined either by the DOT or agency policy therefore we are left to speculate regarding the degree of limitation. Further, Doctor Netherton opined the claimant could never climb, balance, stoop or crawl which is inconsistent with the demands of daily living that have been set forth throughout this decision. Doctor Netherton's opinion that the claimant is not capable of full-time work is an issue that is reserved to the Commissioner. Doctor Netherton also opined that the claimant had side effects from medications which are significant and would limit the effectiveness to work or drive which is inconsistent with the repeated notes of no side effects from medications that have been set forth in detail throughout this decision (Exhibit B44 F5, 6, 8 and 9). Doctor Netherton also opined that pain would interfere with the ability to
concentrate 8 hours a day however, the ability to drive 3 ½ hours to Charleston suggest[s] ability to concentrate greater than Doctor Netherton opined. Moreover, records note that the claimant's memory and ability to concentrate are normal (Exhibits B35F and B44F). Magnetic imaging of the cervical spine revealed mild degenerative disc disease and C4-7 impingement is difficult to confirm (Exhibit B12F). Examination of the cervical spine revealed normal range of motion without tenderness likewise examination of the lumbar spine revealed no tenderness to palpation[. E]xam of the extremities was normal and the claimant exhibited no neurologic deficits (Exhibit B1F). More recent records[] reveal similar findings musculoskeletal and neurologic symptoms negative, respiratory negative and lungs clear (Exhibit B39F) [sic]. Other examinations revealed the lumbar spine to be nontender with normal range of motion, musculoskeletal examination revealed normal range of motion, no deformities, no neurologic deficits and intact strength (Exhibit B38F). Again, examination revealed the claimant to be negative for back pain, joint swelling, gait problems and range of motion was normal (Exhibit B39F). Other records reveal similar findings normal range of motion of the cervical and lumbar spine no tenderness to palpation normal reflexes and steady gait (Exhibit B40F). Ms. Bradberry was reported to have no back or joint pain (which is inconsistent with her testimony of constant pain ranging from 6-9/10 (Exhibit B43F). . . .(R. at 36-37.)
The ALJ states that "early records indicate the claimant was only using over-the-counter medication for pain (Exhibit B4E, B13E and B14E)." (R. at 36.) The undersigned sees no reference to over-the-counter medication in B4E, Plaintiff's function report dated November 5, 2010; Plaintiff does state that she takes oxycontin, neurontin, klonopin, and phenergan. (R. at 295-302.) Exhibit B13E appears to be blank, with a notation that Plaintiff "did not submit . . . as of 07/26/11. Judge will decide good cause for late filing." (R. at 336-39.) Exhibit B14E does include medication such as BC powders and ibuprofen, but it also indicates she was first prescribed Oxycontin in 2009, first prescribed roxycodone in 2008, first prescribed Savella in 2011, first prescribed flexeril in 2000, and first prexcribed phenergan in 2009. (R. at 341.) The ALJ further faults Dr. Netherton for not defining the term "rarely." (See R. at 36.) But Dr. Netherton does indeed define it, indicating that "'rarely' means 1% to 5% of an 8-hour working day." (R. at 896.)
The record also contains evidence that Plaintiff took BC powder and ibuprofen in addition to her prescription medications. For example, on February 24, 2011, the notes indicate that although Plaintiff was prescribed OxyContin 40mg twice a day, Plaintiff reported that she took her first dose about 5AM "and by eleven or twelve she has already taken her other dose and has no pain medicine for the rest of the day." (R. at 540.) She was taking six to eight pills of ibuprofen "at once multiple times throughout the day along with headache powders." (R. at 540.)
The ALJ points to Exhibit B39F to support his assertion that "[m]ore recent records" indicate Plaintiff's "musculoskeletal and neurologic symptoms [are] negative." (R. at 36.) Exhibit B39F includes records from the Bon Secours Health System. (R. at 932-54.) Those records indicate Plaintiff had an echocardiogram in June of 2014; the undersigned sees no indication therein that in June of 2014, Plaintiff had no musculoskeletal or neurologic symptoms. (R. at 932-35.) In June of 2012, Plaintiff presented to the Bon Secours Health System for a dental problem; that record does indicate Plaintiff was negative for back pain. (R. at 936-37.) In June of 2010 (slightly before Plaintiff's alleged disability onset date of July 1, 2010), Plaintiff presented to the Bon Secours Health System for abdominal pain. (R. at 950-54.) This record indicates Plaintiff had a normal range of motion. (R. at 951-52.)
The ALJ points to Exhibit B43F in support of his statement: "Ms. Bradberry was reported to have no back pain or joint pain (which is inconsistent with her testimony of constant pain ranging from 6-9/10)." (R. at 37.) Exhibit B43F is a record from Nason Medical Center dated August 11, 2014, wherein Plaintiff sought treatment for "small bumps/insect bites to the bilateral legs and arms." (R. at 1006-08.) The record does state "[n]o back or joint pain." (R. at 1007.) Of course, she went to Nason Medical Center to be treated for insect bites, just as she sought treatment at the Bon Secours Health System for acute problems unrelated to her back or neck pain. Records from the Southeastern Spine Institute indicate that on May 27, 2014, Plaintiff described her pain as an 8/10 on the numeric analog scale. (R. at 1054.) Plaintiff reported that medication "simply take[s] the edge off." (R. at 1054.) In referencing these records from Nason Medical Center and the Bon Secours Health System, the ALJ has cherrypicked certain records to support his conclusion that Dr. Netherton's opinions are entitled to little weight. The undersigned cannot conclude that doing so provides substantial evidence to discount Dr. Netherton's opinions.
The ALJ makes much of Plaintiff's activities of daily living, using this as one of his reasons to discount Dr. Netherton's opinions. However, as in Brown v. Commissioner, 873 F.3d 251 (4th Cir. 2017), the ALJ "did not acknowledge the extent of those activities as described" by the Plaintiff. Brown, 873 F.3d at 263. The ALJ noted Plaintiff's testimony at prior hearings that she "drives to the store a few times a week," can wash clothes, take a shower, wash a few dishes, and prepare simple meals. (R. at 35.) In 2012, she testified that she could drive a short distance, such as a few miles. (R. at 98.) She stated, however, that usually one of her daughters would go with her, and if she goes into the store, she "use[s] a buggy to kind of lean up on it" to take some of the pressure off her back. (R. at 109, 114, 116.) She testified that she could wash "a handful of dishes" for approximately five minutes, then would have to sit down. (R. at 111, 118.) She testified that she could "cook something in the microwave," like instant oatmeal. (R. at 114.) In her November 2010 Function Report, Plaintiff indicated that she was able to sit for approximately fifteen minutes and fold clothes. (R. at 297.) She stated that she had to have help in doing laundry, however, as she could not carry the basket or remove the clothes from the dryer. (R. at 297.) It is unclear to the undersigned how such limited activities of daily living provide a basis for discounting Dr. Netherton's opinion, or a basis for concluding that Plaintiff was able to do light work for an entire eight-hour workday, five days a week. See Brown, 873 F.3d at 263.
See SSR 83-10, 1983 WL 31251, at *6 (noting that the "full range of light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday").
Some assessments made by the ALJ are fair. For example, the ALJ noted the record contains "notes of no side effects from medications that have been set forth in detail throughout this decision." (R. at 36.) In the opinion of the undersigned, however, the ALJ's rejection of the opinions of Dr. Netherton is not supported by substantial evidence. Even assuming the ALJ was not required to give Dr. Netherton's opinions controlling weight, it does not appear to the undersigned that the ALJ gave any weight to Plaintiff's long-term treatment relationship with Dr. Netherton, nor does it appear that the ALJ considered that Dr. Netherton is a specialist. It does not appear that the ALJ gave consideration to the consistency between the opinions of Dr. Netherton, Dr. Burnette, and Dr. Moody, all of whom examined Plaintiff. See 20 C.F.R. § 416.927(c)(1)-(5).
Of course, the record also contains evidence that Plaintiff did experience side effects from her medications. (See, e.g., R. at 302.) --------
The undersigned notes that the ALJ stated that he attributed "more weight to the State agency consultants." (R. at 37.) It is worth noting, however, that the first assessment was performed on December 7, 2010, and the second was performed on May 10, 2011. (See R. at 37; see also R. at 564-71.) A significant amount of highly probative evidence was created after these dates, and this evidence was therefore not available to these State agency consultants. While this alone does not warrant reversal--see, e.g. Tanner v. Comm'r, 602 F. App'x 95, 101 (4th Cir. 2015)--Plaintiff testified to, and the record appears to support, a continuous decline in her condition. (See R. at 69-70; compare R. at 1097 with R. at 1048-48.)
In light of the foregoing, including the numerous inaccuracies set forth above in the ALJ's analysis, the undersigned cannot conclude the ALJ set forth "good reasons" for giving the treating physician's opinion such little weight. The undersigned therefore recommends reversing the decision of the Commissioner, and remanding the case for further consideration of Dr. Netherson's opinions. See Brown, 873 F.3d at 263; see id. at 270 (noting the ALJ failed to build an "'accurate and logical bridge' from the evidence to the ALJ's conclusion that [the plaintiff's] statements about his pain were in conflict with other evidence" where "[t]he records do not support the ALJ's suggestion that [the plaintiff] was regularly exercising and doing housework and car repairs, in contradiction to his claim of disabling pain" (citation omitted)); Binnarr v. Colvin, 164 F. Supp. 3d 788, 792 (D.S.C. 2016) (reversing where there was "no indication that the ALJ weighed the competing testimony of Dr. Glaser and Dr. Saito in light of the standards set forth in the Treating Physician Rule").
B. Remaining Allegations of Error
Because the Court finds the ALJ's analysis with respect to Dr. Netherton's opinion to be a sufficient basis to remand the case to the Commissioner, the undersigned does not specifically address Plaintiff's remaining allegations of error. However, on remand, the Commissioner should consider Plaintiff's allegations that the ALJ (a) erred in evaluating the opinions of Dr. Burnette and Dr. Moody; (b) "erred by failing to comply with SSR 96-7p to reject [Plaintiff's] testimony regarding the severity of her symptoms and limitations"; (c) erred "by failing to comply with 20 C.F.R. § 416.945(a)(3) and SSR 96-7p by not mentioning or evaluating the supportive lay testimony of [Plaintiff's] daughter"; and (d) "erred by ignoring the vocational expert's testimony at the hearing that there was no work [Plaintiff] can perform upon a proper consideration of all her limitations." (See Dkt. No. 14 at 24-27, 35, 38.) The Commissioner should also consider Plaintiff's assertion that the ALJ's "residual functional capacity finding of light work is not supported by substantial evidence where the prior decision by Judge Avots limited [Plaintiff] to sedentary work." (Dkt. No. 14 at 32.)
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that the Commissioner's decision be reversed and remanded for administrative action consistent with this recommendation, pursuant to sentence four of 42 U.S.C. Section 405(g) for further proceedings as set forth above.
IT IS SO RECOMMENDED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE January 18, 2018
Charleston, South Carolina