Opinion
7:20-CV-35-D
08-31-2021
SHEREE R. CASTRO, Plaintiff, v. ANDREW SAUL, Commissioner of Social Security Defendant.
MEMORANDUM AND RECOMMENDATION
Brian S. Meyers United States Magistrate Judge
This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-23, -25] pursuant to Fed.R.Civ.P. 12(c). Plaintiff Sheree R. Castro (“Plaintiff” or, in context, “Claimant”) filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of her application for a period of disability and Disability Insurance Benefits (“DIB”). Both parties submitted memoranda in support of their respective motions [DE-24, -26]. The time for filing responsive briefs has expired and the pending motions are ripe for adjudication. The motions were referred to the undersigned Magistrate Judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1). Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Plaintiff's Motion for Judgment on the Pleadings be allowed, Defendant's Motion for Judgment on the Pleadings be denied, and the case be remanded to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.
I. STATEMENT OF THE CASE
Plaintiff protectively filed an application for a period of disability and DIB on November 22, 2017, alleging disability beginning September 7, 2015. Transcript of Proceedings (“Tr.”) 226- 32. Her claim was denied initially. Tr. 151-61. Plaintiff filed a request for reconsideration (Tr. 182) and was denied upon reconsideration on June 19, 2018 (Tr. 183-86). On June 25, 2018, Plaintiff requested a hearing before the Administrative Law Judge (“ALJ”). Tr. 187-88. A hearing before the ALJ was held on April 9, 2019, at which plaintiff appeared and testified without the assistance of an attorney or other representative. Tr. 114-50. A vocational expert (“VE”) appeared and testified as well. Tr. 145-48. On September 4, 2019, the ALJ issued a decision denying Plaintiff's request for benefits. Tr. 25-41.
On October 25, 2019, Plaintiff requested a review of the ALJ's decision by the Appeals Council and submitted additional evidence as part of her request. Tr. 11-14. After reviewing and incorporating the additional evidence into the record, the Appeals Council denied Plaintiff's request for review on January 3, 2020. Tr. 1. Plaintiff then filed a complaint in this court seeking review of the now-final administrative decision.
II. STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act (“Act”), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). “The findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive ....” 42 U.S.C. § 405(g). Substantial evidence is “evidence which a reasoning mind would accept as sufficient to support a particular conclusion.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a “large or considerable amount of evidence, ” Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is “more than a mere scintilla . . . and somewhat less than a preponderance.” Laws, 368 F.2d at 642. “In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the “substantial evidence” inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997). “Judicial review of an administrative decision is impossible without an adequate explanation of that decision by the administrator.” DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983).
Where, as here, the Appeals Council considers additional evidence before denying the claimant's request for review of the ALJ's decision, “the court must ‘review the record as a whole, including the [additional] evidence, in order to determine whether substantial evidence supports the Secretary's findings.'” Felts v. Astrue, No. 1:11-CV-00054, 2012 WL 1836280, at *1 (W.D. Va. May 19, 2012) (quoting Wilkins v. Sec'y Dep't of Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991)). Remand is required if the court concludes that the Commissioner's decision is not supported by substantial evidence based on the record as supplemented by the evidence submitted at the Appeals Council level. Id. at *1-2.
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. § 404.1520 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in “substantial gainful activity [“SGA”], ” i.e., currently working; and (2) must have a “severe” impairment that (3) meets or exceeds [in severity] the “listings” of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity [“RFC”] to (4) perform . . . past work or (5) any other work.Albright v. Comm'r Soc. Sec. Admin., 174 F.3d 473, 475 n.2 (4th Cir. 1999). “If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps.” Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the “special technique” described in 20 C.F.R. §§ 404.1520a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and, adapting or managing oneself. Id. § 404.1520a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the “special technique.” Id. § 404.1520a(e)(4).
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Plaintiff “not disabled” as defined in the Act. Tr. 37. At step one, the ALJ determined Plaintiff had not engaged in substantial gainful employment from her alleged onset date of September 7, 2015 through her date last insured of March 31, 2017. Tr. 31.
Next, at step two, the ALJ determined Plaintiff had the following severe impairments: spondylosis, tricompartmental degenerative arthrosis in knee, dysfunction of major joints, varicose veins of lower extremities, hyperlipidemia, lymphedema, lipedema, other diseases of the circulatory system, plantar fasciitis, migraine headaches, costochondritis, and obesity. Tr. 31. The ALJ also found Plaintiff had non-severe impairments of: kidney disease, urinary incontinence, hypothyroidism, asthma, and post-traumatic stress disorder. Tr. 31. However, at step three, the ALJ concluded these impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 32. Applying the technique prescribed by the regulations, the ALJ found that Plaintiff's mental impairments have resulted in: mild limitation in understanding, remembering, or applying information; mild limitation in interacting with others; mild limitation in concentrating, persisting, or maintaining pace; and, mild limitation in adapting or managing oneself. Tr. 31-32.
Prior to proceeding to step four, the ALJ assessed Plaintiff's RFC, finding Plaintiff had the ability to perform light work as defined in 20 C.F.R. § 404.1567(b) with additional limitations, in that:
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If an individual can perform light work, he or she can also perform sedentary work, unless there are additional limiting factors such as the loss of fine dexterity or the inability to sit for long periods of time.” 20 C.F.R. § 404.1567(b).
[S]he can lift and carry 20 pounds occasionally and 10 pounds frequently. She can sit, stand, and/or walk six hours in an eight-hour workday. The claimant can push and pull as much as she can lift and carry. However, the claimant has the following limitations: The [sic] claimant can climb ramps and stairs frequently, but she can never climb ladders, ropes, or scaffolds. She can balance frequently, stoop frequently, kneel frequently, crouch frequently, and crawl frequently. The claimant can never work at unprotected heights, but she can work around moving mechanical parts occasionally. The claimant can have exposure to dust, odors, fumes and pulmonary irritants occasionally, and she can have exposure to vibration occasionally.Tr. 33. The ALJ also identified non-exertional limitations caused by Plaintiff's obesity. Tr. 36. In making this assessment, the ALJ found Plaintiff's statements about the intensity, persistence, and limiting effects of her alleged symptoms were not entirely consistent with the medical evidence and other evidence in the record. Tr. 34. The ALJ additionally found Plaintiff's statements regarding the severity of her impairments and limitations were not fully supported by the evidence of record. Tr. 34.
At step four, the ALJ concluded Plaintiff had the RFC to perform the requirements of her past relevant work as an office manager as actually and generally performed. Tr. 37.
V. OVERVIEW OF PLAINTIFF'S CONTENTIONS
In this case, Plaintiff alleges the ALJ erred by: (1) failing to form a logical bridge between the evidence and the RFC regarding Plaintiff's need to elevate her legs; and, (2) failing to adequately evaluate and explain the weight afforded to medical opinions regarding Plaintiff's need to elevate her legs. Pl.'s Mem. [DE-24] at 1. Each will be discussed below.
VI. DISCUSSION
A. Logical bridge between evidence and the residual functional capacity
Plaintiff contends that the ALJ erred by failing to form a logical bridge between the evidence and the RFC regarding Plaintiff's need to elevate her legs. Pl.'s Mem. [DE-24] at 1. The court agrees.
Specifically, Plaintiff argues that the ALJ should have further explained the decision not to include an accommodation for leg elevation in the RFC. Id. at 7, 10. Plaintiff states that the ALJ's failure to explain this omission amounts to a missing step in the so-called “logical bridge” between the evidence and the ALJ's conclusion. Id. at 7. As discussed below, the court finds that the ALJ did not adequately explain how the current RFC limitations account for Plaintiff's leg swelling, or alternatively, explain why no limitation is included for Plaintiff to elevate her legs.
“A Social Security claimant's RFC represents ‘the most [she] can still do despite [her] limitations.'” Dowling v. Comm'r Soc. Sec. Admin., 986 F.3d 377, 387 (4th Cir. 2021) (quoting 20 C.F.R. § 416.945(a)(1)). In assessing an individual's RFC, an ALJ considers that person's “ability to meet the physical, mental, sensory, and other requirements of work.” 20 C.F.R. § 404.1545(a)(4). Further, “the ALJ must consider all of the claimant's medically determinable impairments of which the ALJ is aware, including those not labeled severe at step two.” Shinaberry v. Saul, 952 F.3d 113 (4th Cir. 2020) (quoting Monroe v. Colvin, 826 F.3d 176, 178 (4th Cir. 2016)).
“[A] proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion.” Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019). The ALJ “must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).” Monroe, 826 F.3d at 189 (quoting Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015)). Indeed, “the ALJ's logical explanation is just as important as the other two [components] . . . and our precedent makes clear that meaningful review is frustrated when an ALJ goes straight from listing evidence to stating a conclusion.” Thomas, 916 F.3d at 311 (citing Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018)). The ALJ is not required to discuss every piece of evidence in the record. See Reid v. Comm'r Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014) (citations omitted). However, where a court is “left to guess about how the ALJ arrived at his conclusions on [a claimant's] ability to perform relevant functions . . ., remand is necessary.” Mascio, 780 F.3d at 637.
Here, the ALJ found that Plaintiff had the following RFC:
After careful consideration of the entire record, I find that, through the date last insured, the claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) in that she can lift and carry 20 pounds occasionally and 10 pounds frequently. She can sit, stand, and/or walk six hours in an eight-hour workday. The claimant can push and pull as much as she can lift and carry. However, the clamant has the following limitations: The claimant can climb ramps and stairs frequently, but she can never climb ladders, ropes, or scaffolds. She can balance frequently, stoop frequently, kneel frequently, crouch frequently, and crawl frequently. The claimant can never work at unprotected heights, but she can work around moving mechanical parts occasionally. The claimant can have exposure to dust, odors, fumes and pulmonary irritants occasionally, and she can have exposure to vibration occasionally.Tr. 33.
In assessing Plaintiff's RFC, the ALJ did in fact summarize both Plaintiff's diagnosis of lymphedema and Plaintiff's need to elevate her legs. Tr. 35. The ALJ's in-depth summary appears as follows:
Lymphedema is defined by the Mayo Clinic as “swelling that generally occurs in one of your arms or legs. Sometimes both arms or both legs.” Lymphedema, Mayo Clinic, https://wwwmayoclinic.org/diseases-conditions/lymphedema/symptoms-causes/syc-20374682.
Rather, the claimant's treatment focused on lymphedema and lipedema. While the claimant's treatment for the condition primarily occurs after her date last insured, I have considered all evidence to gain a full picture of the claimant's symptoms and limitations. The record reflects that in March of 2017, the claimant was treated for pain and swelling in her lower extremities. In March of 2017, the claimant was advised to wear compression stockings, which she admitted were effective in reducing her symptoms. She also indicated that she elevated her legs, especially at night. Her physical examinations repeatedly revealed pitting edema in her legs, but she had normal range of motion and strength. In October of 2017 [sic]. The claimant was told to instructed to [sic] put her compression stockings on in the morning and wear them all day; she was also told to elevate her legs where possible while seated and recumbent [sic] Exhibits 1F and 4F. The claimant continued to seek treatment every three to six months for ongoing swelling. The claimant's treatment records from May of 2018, August of 2018, and February of 2019 indicate that she continued to suffer from pain and swelling in her legs that was partly alleviated by compression stockings. Her treating physician opined that she would continue to benefit from Sequential compression that she was encouraged to use twice daily for an hour each. She used a Flexitouch compression device for bilateral lower extremities. Her most recent records, from December of 2018, indicate that the claimant benefited from wearing compression stockings. She was again instructed to follow up in six months. Exhibit 7F.Tr. 35.
However, absent in this summary and in the remainder of the ALJ's written decision is an explanation of how Plaintiff's leg swelling and potential need to elevate her legs impacted the ALJ's RFC conclusions. See Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018). Specifically, the ALJ does not discuss why a limitation for Plaintiff to elevate her legs is not needed, or how the stated RFC limitations account for Plaintiff's symptoms caused by lymphedema. The ALJ clearly references evidence that Plaintiff suffered from leg swelling and it was recommended that she elevate her legs, yet this limitation is “not accounted for in the RFC, and the ALJ's narrative discussion does not explain [its] omission. Without further explanation, the Court is ‘left to guess about how the ALJ arrived at [her] conclusion.'” Dennis v. Berryhill, 362 F.Supp.3d 303, 310 (W.D. N.C. 2019) (quoting Mascio, 780 F.3d at 637).
Defendant argues that nothing in the legal standards requires that the ALJ include an additional limitation for leg elevation. Def.'s Mem. [DE-26] at 14, 17. While there may be no requirement to include an additional limitation, the ALJ is required to explain the conclusions made. The ALJ does not include a narrative discussion of how she accounted for Plaintiff's leg swelling and leg elevation in the current RFC limitations. For example, the ALJ omits any discussion of how Plaintiff can “sit, stand, and/or walk six hours in an eight-hour workday” with these impairments. Tr. 33.
Defendant also asserts that substantial evidence exists supporting the ALJ's apparent decision to not include a limitation for leg elevation. Id. at 11-13. However, the issue is not merely whether evidence exists somewhere in the record of case to support the ALJ's determination. The issue here is that there is no narrative discussion in the written decision which allows the court to follow the ALJ's evidentiary analysis. The ALJ may well have had an adequate basis for determining that Plaintiff's leg swelling and the need to elevate her leg did not result in any additional limitations. Yet, without an explanation for this determination, the court is again “left to guess about how the ALJ arrived at [her] conclusions ....” Mascio, 780 F.3d at 637.
Finally, Defendant argues that leg elevation was a mere “treatment recommendation, ” as opposed to a “work setting restriction.” Id. at 13, 17. Nevertheless, Defendant properly considered Plaintiff's leg swelling and the recommendation that Plaintiff elevate her legs in assessing Plaintiff's RFC. Tr. 35. In examining this evidence, the ALJ was required to “[s]how [her] work” as to how this evidence factored into the RFC evaluation. Lyde v. Saul, No. 7:18-CV-134-KS, 2019 WL 4491503, at *7 (E.D. N.C. Sept. 18, 2019) (quoting Patterson v. Comm'r Soc. Sec. Admin, 846 F.3d 656, 663 (4th Cir. 2017)).
In sum, the ALJ here fails to “build an accurate and logical bridge from the evidence to [her apparent] conclusion” that Plaintiff did not require an additional limitation for leg elevation in her RFC. Monroe, 826 F.3d at 189 (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)). Similarly, the ALJ does not build an accurate and logical bridge linking evidence of Plaintiff's leg swelling and need to elevate her leg to any existing limitation set forth in the RFC or lack thereof. The lack of explanation and analysis frustrates meaningful review by the court. The court is left to guess at how the ALJ came to her conclusions. The court finds that this was not harmless error, as the inclusion of a limitation requiring Plaintiff to elevate her legs for a period of time could be outcome-determinative. See Moseley v. Saul, No. 2:20-CV-2-BO, 2021 WL 329946, at *2 (E.D. N.C. Feb. 1, 2021).
Accordingly, the undersigned recommends this case be remanded to the Commissioner for further proceedings. On remand, the Commissioner should include a narrative discussion about how the evidence leads to each conclusion regarding Plaintiff's limitations, so that meaningful judicial review would be permitted, if necessary.
B. Evaluation and explanation of the weight afforded to medical opinions regarding Plaintiff's need to elevate her legs
Plaintiff next contends that the ALJ erred by failing to adequately evaluate and explain the weight afforded to medical opinions regarding Plaintiff's need to elevate her legs. Pl.'s Mem. [DE-24] at 1.
Two separate rules exist concerning ALJs consideration of medical source opinions. The rule that governs is determined by the date that the plaintiff filed their initial social security claim. “For claims filed (see § 404.614) before March 27, 2017, the rules in [§ 404.1527] apply. For claims filed on or after March 27, 2017, the rules in § 404.1520c apply.” 20 C.F.R. § 404.1527; see also Dowling, 986 F.3d at 384 n.8. Because Plaintiff's initial claim was filed on November 22, 2017 (Pl.'s Mem. [DE-24] at 2), § 404.1520c applies here.
Section 404.1520c instructs that the Social Security Administration “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources.” 20 C.F.R. § 404.1520c(a). Instead, the regulation provides five factors for evaluating the persuasiveness of medical opinions and prior administrative medical findings, the five factors being: “(1) Supportability . . . (2) Consistency . . . (3) Relationship with the claimant . . . (4) Specialization . . . [and] (5) Other factors . . . that tend to support or contradict a medical opinion or prior administrative finding. Id. §§ 404.1520c(c)(1)-(5). The regulation specifies that supportability and consistency are the most important factors in the evaluation. Id. § 404.1520c(a).
The regulations also require that an ALJ “articulate how [they] considered the medical opinions and prior administrative medical findings in [the] case record.” Id. Among the articulation requirements is the requirement that the ALJ engage in a source-level articulation. Id. § 404.1520c(b)(1). While the ALJ does not need to articulate how they considered the § 404.1520c(c) factors for each individual medical opinion, the ALJ must articulate how they considered the factors for each medical source that has provided a medical opinion(s) or prior administrative medical finding(s). Id.
Here, Plaintiff maintains that the ALJ failed to articulate how persuasive she found records concerning Plaintiff's need to elevate her legs. Plaintiff refers specifically to the notes of Dr. Lennox Williams at the Onslow Surgical Clinic. Pl.'s Mem. [DE-24] at 10; Tr. 332-41, 1031-42. Defendant, however, argues that the treatment notes of Dr. Williams, as well as any other notes referencing Plaintiff's need to elevate her legs, do not constitute medical opinions as defined by § 404.1513. Def.'s Mem. [DE-26] at 18-20. Defendant asserts that these notes and the recommendation that Plaintiff elevate her legs do not constitute workplace restrictions. Id. at 18. Thus, the notes do not qualify as medical opinions under the relevant regulations and the ALJ was not required to evaluate or articulate its persuasiveness. Id.
To note, on multiple occasions Plaintiff contends that the ALJ failed to explain the “weight” assigned to certain medical records. Pl.'s Mem. [DE-24] at 11-12. However, pursuant to 20 C.F.R. § 404.1520c, an ALJ is only required to articulate how persuasive they found each medical record. Plaintiff's mention of “weight” appears to be a reference to 20 C.F.R. § 404.1527. Section 404.1527 required an ALJ to decide what weight should be given to each medical opinion, often giving opinions from treating sources controlling weight. However, for the reasons stated above § 404.1527 is inapplicable here as Plaintiff's claim was filed on or after March 27, 2017.
The term “medical opinion” as used in § 404.1520c is specifically defined in § 404.1513, titled “Categories of evidence.” 20 C.F.R. 404.1513(a). Section 404.1513(a)(2) defines “medical opinion” as follows:
(a) A medical opinion is a statement from a medical source about what you can still do despite your impairment(s) and whether you have one or more impairment-related limitations or restrictions in the following abilities: (For claims filed (see § 404.614) before March 27, 2017, see § 404.1527(a) for the definition of medical opinion.)
(i) Your ability to perform physical demands of work activities, such as sitting, standing, walking, lifting, carrying, pushing, pulling, or other physical functions (including manipulative or postural functions, such as reaching, handling, stooping, or crouching);
(ii) Your ability to perform mental demands of work activities, such as understanding; remembering; maintaining concentration, persistence, or pace; carrying out instructions; or responding appropriately to supervision, co-workers, or work pressures in a work setting;
(iii) Your ability to perform other demands of work, such as seeing, hearing, or using other senses; and
(iv) Your ability to adapt to environmental conditions, such as temperature extremes or fumes.Id. § 404.1513(a)(2). Section 404.1513(a)(3) also contains a separate definition for what is termed “Other medical evidence.” Section 404.1513(a)(3) defines other medical evidence as “evidence from a medical source that is not objective medical evidence or a medical opinion, including judgments about the nature and severity of your impairments, your medical history, clinical findings, diagnosis, treatment prescribed with response, or prognosis.” Id. § 404.1513(a)(3).
The court agrees with Defendant that Dr. Williams' notes do not meet the regulatory definition of a “medical opinion” under § 404.1513(a)(2). No statement in Dr. Williams' notes “allude[s] to any particular abilities or restrictions that were imposed by Plaintiff's impairments.” Ryant v. Saul, No. 1:19-2377-MGL-SVH, 2020 WL 5128492, *11 (D.S.C. July 30, 2020); see also Bullard v. Comm'n Soc. Sec. Admin., No. CIV-19-397-RAW-KEW, 2021 WL 1215876, *4 (E.D. Okla. Mar. 15, 2021). Dr. Williams treated Plaintiff for a total of six visits, from March 16, 2017 until December 19, 2018. Tr. 332-41, 1031-42. In the notes for each visit Dr. Williams provides “judgments about the nature and severity of [Plaintiff's] impairments, [Plaintiff's] medical history, clinical findings, [a] diagnosis, [and] treatment prescribed ....” 20 C.F.R. § 404.1513(a)(3).
While Dr. Williams does note that Plaintiff suffers from lymphedema of both lower extremities and instructs Plaintiff to elevate her legs where possible, while seated or recumbent (Tr. 340), no mention is made of whether or how this will impact or limit Plaintiff's ability to work. That is, no mention is made of Plaintiff's ability to perform any physical demands of work, mental demands of work, other demands of work, or ability to adapt to environmental conditions. See 20 C.F.R. § 404.1513(a)(2).
While several other medical providers do note that Plaintiff suffers from lymphedema, nonpitting edema, and swelling of the legs, Plaintiff only refers to a record from Joan Weglein, WHNP-BC at the Cumberland County VA Clinic that recommends Plaintiff elevate her legs. Tr. 352-54. For the same reason explained above for Dr. Williams' notes, this note also does not qualify as a medical record, but instead falls under the category of “other medical evidence.”
In particular, those at Jacksonville Physical Therapy Center (Tr. 862-65, 709-12), the Fayetteville VA Medical Center (Tr. 573-76, 655-61, 627-30, 1125-28, 1171), the Wilmington VA Clinic (Tr. 354-60), the Cumberland Country VA Clinic (Tr. 352-54), and Jacksonville Allergy Asthma (Tr. 1305-14).
Because the notes concerning Plaintiff's need to elevate her leg do not meet the regulatory definition of medical opinion, the ALJ was not required to articulate how persuasive she found the notes. 20 C.F.R. § 404.1520c(a). Thus, the ALJ did not err by failing to include a discussion regarding persuasiveness. Although the ALJ is not required to include a discussion of persuasiveness, on remand, the Commissioner should contemplate whether further explanation of the consideration given to the “other medical evidence” is appropriate - consistent with the undersigned's above recommendation for remand. It is, of course, up to the Commissioner to determine what weight to give all evidence, including the other medical evidence.
VII. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Plaintiff's Motion for Judgment on the Pleadings [DE-23] be ALLOWED, Defendant's Motion for Judgment on the Pleadings [DE-25] be DENIED, and the case be REMANDED to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until September 13, 2021 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed by September 21, 2021.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).