Opinion
Civil Action 6:20-2504-TMC-KFM
09-10-2021
Nickolas Godfrey, Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social Security, [1] Defendant.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States 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 28 U.S.C. § 636(b)(1)(B). The plaintiff brought this action pursuant to § 205(g) of the Social Security Act, as amended (42 U.S.C. § 405(g)), to obtain judicial review of a final decision of the Commissioner of Social Security denying his claim for disability insurance benefits (“DIB”) under Title II of the Social Security Act.
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.
ADMINISTRATIVE PROCEEDINGS
The plaintiff filed an application for DIB on August 24, 2017, alleging that he became disabled on August 14, 2015. The plaintiff's application was denied initially and on reconsideration by the Social Security Administration. On July 31, 2018, the plaintiff requested a hearing. The administrative law judge (“ALJ”) held a video hearing on February 6, 2019, at which the plaintiff, his attorney, and Kassandra L. Humphress, an impartial vocational expert, appeared. The ALJ considered the case de novo, and, on March 28, 2019, the ALJ found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 17-26). 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 May 11, 2020 (Tr. 1-6). 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 December 31, 2020.
(2) The claimant has not engaged in substantial gainful activity since August 14, 2015, the alleged onset date (20 C.F.R § 404.1571 et seq.).
(3) The claimant has the following severe impairments: degenerative disc disease status-post L5-S1 fusion, and migraines (20 C.F.R. § 404.1520(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, 404.1526).
(5) After careful consideration of the entire record, the undersigned found that the claimant has the residual functional capacity to perform light work as defined in 20 C.F.R. § 404.1567(b) except can never climb ladders, ropes, or scaffolds; occasionally stoop and crouch; frequently climb ramps or stairs; frequently kneel or crawl; may need to alternate walking and standing with sitting for ten minutes in the morning and the afternoon in addition to the normal breaks; may need to take pain and anti-inflammatory medications while at work; must observe hazard precautions from heights, open flames, dangerous machinery, and exposed electrical currents; may be off task up to 10% of the day due to back, leg, and headache pain interfering with concentration, persistence, and pace; and may miss up to one day every two months for symptoms and treatment associated with migraine headaches.
(6) The claimant is unable to perform any past relevant work (20 C.F.R. § 404.1565).
(7) The claimant was born on February 4, 1980, and was 35 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 C.F.R. § 404.1563).
(8) The claimant has at least a high school education and is able to communicate in English (20 C.F.R. § 404.1564).
(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)).
(11) The claimant has not been under a disability, as defined in the Social Security Act, from August 14, 2015, through the date of this decision (20 C.F.R. § 404.1520(g)).
On August 5, 2021, the undersigned held a hearing regarding the issues raised in the plaintiff's brief (doc. 20). Following the parties' arguments at the hearing, the undersigned directed the parties to file supplemental briefs by August 26, 2021, regarding the issue of whether an ALJ is required to explain why he did not include in the plaintiff's residual functional capacity (“RFC”) assessment all limitations recommended by a medical source when the ALJ found that medical source's opinion persuasive. The plaintiff and the Commissioner filed their supplemental briefs on August 26, 2021 (docs. 25, 26). 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
Under 42 U.S.C. § 423(d)(1)(A), (d)(5), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an “inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 20 C.F.R. § 404.1505(a).
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 meets or medically equals an impairment contained in the Listing of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1, (4) can perform his past relevant work, and (5) can perform other work. Id. § 404.1520. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. § 404.1520(a)(4).
A claimant must make a prima facie case of disability by showing he is unable to return to his past relevant work because of his impairments. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). Once an individual has established a prima facie case of disability, the burden shifts to the Commissioner to establish that the plaintiff can perform alternative work and that such work exists in the national economy. Id. (citing 42 U.S.C. § 423(d)(2)(A)). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Id. at 192.
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings “are supported by substantial evidence and were reached through application of the correct legal standard.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). “Substantial evidence” means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Id. In reviewing the evidence, the court may not “undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Id. Consequently, even if the court disagrees with Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
ANALYSIS
The plaintiff argues that the ALJ erred by (1) finding a psychological consultive examiner's opinion persuasive but failing to explain why one of the examiner's recommended limitations was not adopted in the plaintiff's RFC assessment; (2) making misstatements of fact regarding the plaintiff's gait and nerve pain; and (3) making internally inconsistent findings regarding the plaintiff's nonproductive time (doc. 11 at 35-38).
Medical Opinion
The regulations provide that a claimant's RFC is the most that he can still do despite his limitations. 20 C.F.R. § 404.1545(a). It is the ALJ's responsibility to make the RFC assessment, and the ALJ does so by considering all of the relevant medical and other evidence in the record. Id. §§ 404.1545(a)(3), 404.1546(c).
Social Security Ruling (“SSR”) 96-8p provides in pertinent part:
The RFC assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions in paragraph (b), (c), and (d) of 20 C.F.R. §§ 404.1545 and 416.945. Only after that may RFC be expressed in terms of the exertional level of work, sedentary, light, medium, heavy and very heavy.SSR 96-8p, 1996 WL 374184, at *1. The ruling further provides:
The RFC assessment 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). In assessing RFC, the adjudicator must discuss the individual's ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and describe the maximum amount of each work-related activity the individual can perform based on the evidence available in the case
record. The adjudicator must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved.Id. at *7 (footnote omitted). Further, “[t]he RFC assessment must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence.” Id. Moreover, “[t]he RFC assessment must always consider and address medical source opinions. If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted.” Id.
The plaintiff argues that the ALJ erred by finding an opinion from Rebecca Sorrow, Ph.D. (“Dr. Sorrow”), a psychological consultive examiner, persuasive but not including or explaining why he did not include in the RFC assessment one of Dr. Sorrow's recommended limitations for the plaintiff (doc. 11 at 36). In detailing Dr. Sorrow's opinion, the ALJ noted:
The record shows on December 28, 2017, psychological consultive examiner, Dr. Rebecca Sorrow, PhD, examined the claimant. According to Dr. Sorrow, the claimant alleged disability due to stroke, loss of memory, anxiety, insomnia, and migraines. However, Dr. Sorrow noted the claimant has not had any mental health treatment and only takes Tegretrol for pain in his arm. Additionally, he was oriented to place, situation, time, and person. His thought processes were intact and the content of his speech was reality based. Similarly, he denied hallucinations and had no evidence of delusional thinking. As such, he denied feeling anxious or depressed. Accordingly, Dr. Sorrow noted that the claimant reported he has a driver's license and does some driving. However, his wife handles the finances. Concerning his activities of daily living, the claimant reported he and the children do housekeeping chores and that he is able to use a cell phone, social media, and make his own appointments. He walks the dog, watches westerns, and attends church. He also occasionally goes out socially. Therefore, Dr. Sorrow concluded the claimant demonstrated no mental health issues that should interfere with his ability to work.(Tr. 22) (internal citations omitted). In assessing Dr. Sorrow's opinion, the ALJ found:
[T]he undersigned considered the opinion of psychological consultative examiner, Dr. Rebecca Sorrow, PhD, who noted the claimant denied feeling anxious or depressed and demonstrated no mental health issues that would interfere with work. As such, the undersigned finds Dr. Sorrow's assessment and information regarding the claimant's activities of daily living, social functioning, and concentration were consistent with the record at the hearing level, including the claimant's testimony, and persuasive.(Tr. 23-24). Dr. Sorrow also found that “[the plaintiff's] behavior during the examination, his functional assessment, and his MMSE score (28/30) indicate that he is probably able to pay attention and concentrate at a level to perform simple tasks and follow basic instructions” (Tr. 1213). The ALJ did not discuss this facet of Dr. Sorrow's opinion, which the plaintiff argues was error.
As an initial matter, research revealed no binding case law on whether an ALJ is required to articulate why he or she did not adopt every recommended limitation by each medical source. Apparent from the parties' briefs is that courts in other districts vary on this issue. See B.C. v. Saul, C/A No. 20-1108-JWB, 2021 WL 411390, at *3-5 (D. Kan. Feb. 5, 2021) (“The new regulations do not require the ALJ to articulate an explanation for how persuasive she finds every individual opinion of a medical source.” (internal quotation marks and citation omitted)); Ephraim v. Saul, C/A No. 1:20cv00633, 2021 WL 327755, at *13 (N.D. Oh. Jan. 8, 2021) (finding that, under the new regulations, an ALJ who finds an opinion persuasive is “not required to include every element of all of [the opinion's] proposed limitations in the RFC or explain why he did not adopt all of the proposed limitations”), R&R adopted by 2021 WL 325721 (N.D. Oh. Feb. 1, 2021); Tammi F. v. Saul, C/A No. 20-1079-JWL, 2020 WL 7122426, at *4, *6 (D. Kan. Dec. 4, 2020) (explaining that “[t]he articulation requirement applies for each source, but not for each opinion of that source separately” and noting that “Plaintiff's arguments, both that the ALJ was required to provide explanation for discounting every individual limitation in Ms. Hubbard's opinion and that there remained ambiguities and material inconsistencies for which the ALJ provided no explanation, are firmly planted upon case law based on interpretation of the former regulations' requirement that ALJs weigh the medical opinions and explain the weight accorded to each opinion”); Mudge v. Saul, C/A No. 4:18 CV 693 CDP, 2019 WL 3412616, at *5 (E.D. Mo. July 29, 2019) (finding that an ALJ did not err in determining that a physician's opinion was persuasive but not including one of the physician's recommended limitations because, under the new regulations, the ALJ was not required to “‘weigh' [the physician's] opinion or explain why he did not adopt the opinion in its entirety”); but see Clampit v. Comm'r, C/A No. 3:20-cv-1014, 2021 WL 3174111, at *1-2 (N.D. Oh. July 26, 2021) (remanding when an ALJ failed to explain why he did not include in the plaintiff's RFC a superficial interaction limitation, which was recommended by a state psychiatric consultant); Thompson v. Saul, C/A No. 20-672 KK, 2021 WL 2711378, at *8 (D.N.M. July 1, 2021) (“In the Court's view, the agency's new regulation does not alter the Tenth Circuit's requirement that an ALJ must explain her rejection of any medical source opinions in the record concerning the claimant's RFC.”); Rager v. Comm'r, C/A No. 3:20-CV-01200-JRK, 2021 WL 3009091, at *6 (N.D. Oh. June 30, 2021) (noting that “an ALJ must explain why she did not include the limitations from an opinion of a medical source in her determination of the claimant's RFC”), R&R adopted by 2021 WL 2982003 (N.D. Oh. July 15, 2021). Nevertheless, based on a plain reading of the regulations and given the absence of binding case law on the issue, the undersigned cannot conclude that the ALJ erred.
For applications filed after March 27, 2017, such as the plaintiff's herein, a new regulatory framework for considering and articulating the value of medical opinions has been established. See 20 C.F.R. §§ 404.1520c; see also 82 Fed.Reg. 5844-01, 2017 WL 168819 (revisions to medical evidence rules dated Jan. 18, 2017, and effective for claims filed after Mar. 27, 2017). Most notably, the new regulations no longer require that special significance be given to opinions by a claimant's treating physician. See 20 C.F.R. §§ 404.1527 (noting that the treating physician rule only applies to claims filed before March 27, 2017). Indeed, the ALJ is not required to defer to or give any specific weight to medical opinions. Id. § 404.1520c(a). Instead, the ALJ should consider in the decision how persuasive each medical opinion is based upon these factors: (1) supportability; (2) consistency; (3) relationship with the claimant; (4) specialization; and (5) other factors that tend to support or contradict a medical opinion. Id. §§ 404.1520c(b), (c). Supportability and consistency are the most important of the factors for consideration, and the ALJ is required to explain how the supportability and consistency factors were considered in evaluating the opinion evidence. Id. §§ 404.1520c(a), (b)(2). An ALJ may, but is not required to, explain how the remaining factors were considered. Id. §§ 404.1520c(b)(2). In evaluating the supportability of an opinion, “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) . . . the more persuasive the medical opinions . . . will be.” Id. § 404.1520c(c)(1). In evaluating the consistency of an opinion, “[t]he more consistent a medical opinion(s) . . . is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) . . . will be.” Id. § 404.1520c(c)(2).
Particularly relevant here, the regulations specify that “[w]hen a medical source provides one or more medical opinions or prior administrative medical findings, we will consider those medical opinions or prior administrative medical findings from that medical source together” using the above factors. 20 C.F.R. § 404.1520c(a). Moreover, the regulations iterate the “source-level articulation” requirement for ALJs when addressing a medical source who has provided more than one medical opinion or prior administrative medical finding:
A “medical opinion” is defined as follows:
(2) Medical opinion. 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: ...
(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.20 C.F.R. § 404.1513(a)(2). Moreover, a “prior administrative medical finding” is defined as follows:
(5) Prior administrative medical finding. A prior administrative medical finding is a finding, other than the ultimate determination about whether you are disabled, about a medical issue made by our Federal and State agency medical and psychological consultants at a prior level of review (see § 404.900) in your current claim based on their review of the evidence in your case record, such as:
(i) The existence and severity of your impairment(s);
(ii) The existence and severity of your symptoms;
(iii) Statements about whether your impairment(s) meets or medically equals any listing in the Listing of Impairments in Part 404, Subpart P, Appendix 1;
(iv) Your residual functional capacity;
(v) Whether your impairment(s) meets the duration requirement; and
(vi) How failure to follow prescribed treatment (see § 404.1530) and drug addiction and alcoholism (see § 404.1535) relate to your claim.Id. § 404.1513(a)(5).
(1) Source-level articulation. Because many claims have voluminous case records containing many types of evidence from different sources, it is not administratively feasible for us to articulate in each determination or decision how we considered all of the factors for all of the medical opinions and prior administrative medical findings in your case record. Instead, when a medical source provides multiple medical opinion(s) or prior administrative medical finding(s), we will articulate how we considered the medical opinions or prior administrative medical findings from that medical source together in a single analysis using the factors listed in paragraphs (c)(1) through (c)(5) of this section, as appropriate. We are not required to articulate how we considered each medical opinion or prior administrative medical finding from one medical source individually. Id. § 404.1520c(b)(1) (emphasis added).
The plaintiff argues that the ALJ was required to provide an explanation specifically as to why he did not include Dr. Sorrow's limitation regarding complexity of tasks in the plaintiff's RFC (doc. 14 at 4). However, the undersigned finds that the ALJ adequately provided a source-level articulation as required by the regulations. A plain reading of these regulations reflects that, stated differently, ALJs are required to address the medical sources in the record. However, when a medical source provides multiple medical opinions or prior administrative medical findings, ALJs will address the collective opinions and findings from that medical source together in a single analysis based on the factors set forth in 20 C.F.R. § 404.1520c. Further, in recognition of the fact that Social Security matters involve voluminous case records, ALJs are not required to articulate or specifically enumerate in their decisions how they considered each and every medical opinion or prior administrative medical finding from every individual medical source.
Here, as set out above, the ALJ addressed the medical source at issue, Dr. Sorrow (Tr. 22). The ALJ then detailed many of Dr. Sorrow's findings (id.). Additionally, the ALJ evaluated and explained the persuasiveness of Dr. Sorrow's findings (Tr. 23-24). Specifically, the ALJ found that Dr. Sorrow's findings regarding the plaintiff's activities of daily living, social functioning, and concentration were persuasive because they were consistent with the record at the hearing level and consistent with the plaintiff's testimony (id.). Consequently, despite the plaintiff's arguments to the contrary, the court is not “left to guess” how the ALJ arrived at his decision, but rather, the ALJ adequately engaged in a source-level articulation of Dr. Sorrow's findings so as to allow meaningful judicial review.
The plaintiff argues, at multiple points in his briefs, that the ALJ erred by failing to provide further explanation because the ALJ was required to “weigh” Dr. Sorrow's assessment and give good reasons for the weight given (docs. 14 at 3; 26 at 8). The plaintiff also cites several cases to support his position that an ALJ is required to explain why limitations recommended by medical sources are not adopted when an ALJ affords those medical sources “great” or “considerable” weight (doc. 26 at 13-14, 26-27 (citing Lewis v. Saul, C/A No. 1:19-cv-03457-JMC, 2021 WL 1961010 (D.S.C. 2021); Sprouse v. Saul, C/A No. 4:20-685-RMG, 2021 WL 1929370 (D.S.C. 2021))). However, this argument and these cases rely on the old regulations, under which ALJs assigned medical sources' opinions weight. As set out above, the new regulations no longer require the ALJs to assign weight but rather iterate that ALJs assess medical source's opinions based on persuasiveness. Therefore, the plaintiff's argument is unavailing.
The plaintiff also argues generally that there is a constitutional and statutory articulation requirement that applies to ALJs (doc. 26 at 2-3, 5 n.2). Specifically, the plaintiff relies on 42 U.S.C. § 405(g), which provides that “the findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive, ” and argues that this substantial evidence standard requires the ALJ to explicitly indicate the weight given to all of the relevant evidence (doc. 26 at 2 (citing Richardson v. Perales, 402 U.S. 389, 401 (1971); Gordon v. Schweiker, 725 F.2d 231 (4th Cir. 1984)). The plaintiff also relies on an article from the Yale Law Journal in which the author opines that “a ‘fundamental' and ‘bedrock' principle of administrative law, from a constitutional standpoint, is that a court may uphold an agency's decision only for the reasons the agency expressly relied upon when it acted” (doc. 26 at 3 (citing Kevin M. Stack, The Constitutional Foundations of Chenery, 116 Yale L. J. 952, 955) (2007)). Moreover, the plaintiff mentions Chevron deference in passing and appears to argue that, to receive such deference, the ALJ was required to explain the basis for his decision (doc. 26 at 3 (citing Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)). The undersigned does not dispute that ALJs are required to provide an explanation for their decision. However, the ALJ here provided such requisite explanation, and the regulations provide that the ALJ was not required to address the relevant factors regarding each and every finding set forth by Dr. Sorrow.
Further, the plaintiff argues that the ALJ erred because the new regulations still require articulation through the “source-level articulation” subsection, and although ALJs are “not required to discuss every piece of evidence of record or follow a particular format in assessing a claimant's RFC, ” they still must evaluate all of the relevant evidence (doc. 26 at 3-4, 7, 10, 17-21 (citing Reid v. Comm'r of Soc. Sec., 769 F.3d 861 (4th Cir. 2014); Dutton v. Colvin, 2015 WL 1733799 (D.S.C. 2015))). However, these arguments misconstrue the regulations. While ALJs are still bound by an articulation requirement under the source-level articulation subsection and must consider the relevant evidence, as set out above, a plain reading of this subsection reflects that ALJs can articulate their consideration of all of the medical opinions and prior administrative medical findings from one medical source together in a single analysis and that they are not required to articulate how they considered each and every opinion or finding from that one, individual medical source. Therefore, the plaintiff's argument is without merit.
Moreover, the plaintiff argues that the ALJ engaged in “cherry-picking” by only discussing certain portions of Dr. Sorrow's assessment and, in the regulations, “there is no suggestion that any probative part of a particular source's opinion can be ignored” (doc. 26 at 7, 25-26 (citing Robinson v. Saul, C/A No. 0:20-1860-RMG-PJG, 2021 WL 2300809 (D.S.C. 2021) (“Cherry-picking the records to accept only evidence that weighs against a finding of disability is not permitted, and specious inconsistencies cannot reasonably support a rejective of medical opinions or other evidence.”)). While an ALJ cannot “ignore” portions of medical sources' assessments or “cherry-pick” the records, an ALJ does not have to articulate, or expressly state, his reasoning regarding each opinion or finding from every medical source. Here, the ALJ thoroughly discussed the plaintiff's daily activities, his subjective complaints, his testimony at the administrative hearing, the objective medical evidence, and the opinion evidence in the record. Moreover, the ALJ assessed the persuasiveness of the medical sources' opinions and findings and explained his reasoning for formulating the plaintiff's RFC. Such analysis falls far short of any alleged “ignoring” or “cherry-picking” the record.
The plaintiff also argues (doc. 26 at 10-11, 23) that the ALJ left an unresolved conflict, because the RFC does not include a limitation to simple tasks and basic instructions, as opined by Dr. Sorrow. The plaintiff highlights that SSR 96-8p provides that “[t]he RFC assessment must always consider and address medical source opinions. If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted." SSR 96-8p, 1996 WL 374184, at *7. However, while SSR 96-8p has not been formally rescinded, the portion of this SSR cited to by the plaintiff interprets and expressly quotes from the prior regulations regarding assigning weight to treating sources' opinions, which does not apply to this case. See Id. (“Medical opinions from treating sources about the nature and severity of an individual's impairment(s) are entitled to special significance and may be entitled to controlling weight.”); Holohan v. Massanari, 246 F.3d 1195, 1202 n.1 (9th Cir. 2001) (“We will not defer to SSRs if they are inconsistent with the statute or regulations.”) (citation omitted)). As discussed above, applying 20 C.F.R. § 404.1520c to the instant matter, the undersigned recommends that the district court find that the ALJ did not err in the analysis of Dr. Sorrow's opinions.
During the hearing before the undersigned, the Commissioner asserted that even if the ALJ erred by failing to articulate his consideration of Dr. Sorrow's limitation to simple tasks and basic instructions, such error is harmless. The Commissioner argued that all of the jobs identified by the vocational expert were classified as Specific Vocational Preparation (“SVP”) level 2 (Mail Sorter, Dictionary of Occupational Titles (“DOT”) No. 209.687-026; Office Helper, DOT No. 239.567-010; Garment Sorter, DOT No. 222.687-014) and that SVP 2 jobs are classified as “unskilled work.” SSR 00-4p, 2000 WL 1898704, at *3. Moreover, the Commissioner asserted that, based on the definition of unskilled work in 20 C.F.R. § 404.1568(a), as well as the descriptions of the jobs in the DOT, the plaintiff was capable of performing the jobs identified by the vocational expert. See Mudge, 2019 WL 3412616, at *5 (finding that any error by the ALJ in failing to address a limitation that the plaintiff was limited to following oral instructions was harmless because the plaintiff could still perform the jobs identified by the vocational expert). Nevertheless, the undersigned declines to rule on this issue in the absence of testimony from the vocational expert regarding whether the plaintiff could still perform the jobs she identified with this additional limitation.
Misstatements of Fact
The plaintiff also argues that the ALJ erred by making misstatements of fact in his decision (doc. 11 at 37). First, the plaintiff notes that the ALJ stated that “treatment records indicate [the plaintiff's] gait was normal and coordination was normal” (id.). However, the plaintiff iterates that “there are also records showing abnormal gait” (id.). The undersigned finds that any error by the ALJ in failing to address that the plaintiff walked with an abnormal gait on a few occasions is harmless.
In assessing the plaintiff's RFC, the ALJ noted that “treatment records indicate his gait was normal” (Tr. 23). The ALJ also referenced that Bret Warner, M.D. (“Dr. Warner”) found that the plaintiff's gait and coordination were normal (Tr. 22). The plaintiff contends that these statements are a misstatement of fact requiring remand (doc. 11 at 37). However, as an initial matter, these statements were not a mistake of fact, as treatment records reflect that the plaintiff's gait was characterized as normal, and Dr. Warner found that the plaintiff's gait was normal on numerous occasions (Tr. 343, 345, 348, 350, 352, 354). Further, as identified by the Commissioner, a review of the record reflects at least twenty instances in which it was noted that the plaintiff walked with a normal gait (Tr. 343, 345, 348, 350, 352, 354, 471, 476, 481, 484, 488, 492, 1147, 1152, 1158, 1269, 1292, 1297, 1300, 1305). Moreover, the fact that the ALJ did not mention that the plaintiff walked with an abnormal gait on a few occasions does not undermine the ALJ's RFC assessment, especially given the fact that the ALJ limited the plaintiff due to his back and leg pain as follows: never climb ladders, ropes, or scaffolds; occasionally stoop and crouch; frequently climb ramps or stairs; frequently kneel or crawl; may need to alternate walking and standing with sitting for ten minutes in the morning and the afternoon in addition to the normal breaks; may need to take pain and anti-inflammatory medications while at work; and may be off task up to 10% of the day due to back, leg, and headache pain interfering with concentration, persistence, and pace. In addition, the plaintiff has failed to show that, even if these statements were error, the ALJ would have reached a different result. See Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (“[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination.”); Mickles v. Shalala, 29 F.3d 918, 921 (4th Cir.1994) (finding the ALJ's error harmless where the ALJ would have reached the same result notwithstanding). Therefore, any error by the ALJ in failing to mention that the plaintiff walked with an abnormal gait on a few occasions is harmless.
Second, the plaintiff appears to assert that the ALJ made a misstatement of fact by noting that a treating physician found that the plaintiff's pain was “not due to any external nerve compression and that no nerve compression was demonstrated on an MRI” (doc. 11 at 37). The plaintiff contends that this was a misstatement of fact because, in the same assessment, the physician stated that the plaintiff's pain was instead due to “neuropathic pain syndrome[, which] means that the pain is generated from within the nerve and is not due to any external nerve compression” (id.). The plaintiff argues that the physician's findings do “not support the ALJ's insinuation that [the plaintiff's] condition was less severe than he claimed” (id.). However, the ALJ's quotation of a part of the physician's findings is not a misstatement of fact, as this statement is in the record (Tr. 1288).
Moreover, it is well-settled that ALJs are not required to specifically refer to every piece of evidence in their decisions. See Reid, 769 F.3d at 865. Further, the fact that the plaintiff's pain was generated from within the nerve and not due to any external nerve compression is not in conflict with what the ALJ included in his decision, which was merely that the plaintiff's pain was not due to external nerve compression. Consequently, the undersigned finds that the ALJ did not make a misstatement of fact or err by including this quotation from the physician's finding but not that the pain was coming from a neuropathic pain syndrome. Moreover, even if the ALJ had erred, the plaintiff has failed to show that, absent this error, the ALJ would have reached a different result. Therefore, the undersigned recommends that the district court find that the ALJ did not err based on these statements and his decision is supported by substantial evidence.
Nonproductive Time
The plaintiff also asserts that the ALJ erred by making an internally inconsistent finding regarding nonproductive time (doc. 11 at 37). Specifically, the plaintiff notes that, in the RFC assessment, the ALJ found that the plaintiff “may be off task up to 10% of the day due to back, leg, and headache pain interfering with concentration, persistence, and pace; and may miss up to one day every 2 months for symptoms and treatment associated with migraine headaches” (doc. 11 at 37-38). The plaintiff submits that one day off of work every two months equates to four hours off per month (id. at 38). Moreover, the plaintiff submits that 10% of an eight-hour day is forty-eight minutes, which equates to four hours per week or sixteen hours per month (id.). Added together, the plaintiff calculates that the RFC assessment allots a total nonproductive time of twenty hours per month (id.). The plaintiff submits that the vocational expert made no mention of this nonproductive time during her testimony and that the ALJ's decision is internally inconsistent because the nonproductive time in the RFC assessment conflicts with the meaning of “regular and continuing” found in SSR 96-8p (id.).
SSR 96-8p provides that a claimant's “RFC is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis, ” which “means 8 hours a day, for 5 days a week, or an equivalent work schedule.” SSR 96-8p, 1996 WL 374184, at *2.
At the administrative hearing, the ALJ asked the vocational expert if a hypothetical claimant with the same age, education, and background work experience as the plaintiff would be able to perform any jobs in significant numbers in the economy with the limitations ultimately found in the RFC, including being off task up to 10% of the day due to back, leg, and headache pain interfering with concentration, persistence, and pace and missing one day every two months for symptoms and treatment associated with migraine headaches (Tr. 60-61). Considering these limitations, the vocational expert testified that the individual would be able to perform the requirements of a Mail Sorter (DOT No. 209.687-026), Office Helper (DOT No. 239.567-010), and Garment Sorter (DOT No. 222.687-014) (Tr. 61-62). The vocational expert testified that her testimony was consistent with the DOT (Tr. 62). The ALJ then asked the vocational expert to briefly comment on her qualifications to offer jobs and discuss jobs in light of those limitations to the extent the hypothetical may have contained limitations that are not found or expressed in the DOT (id.). The vocational expert testified that she had “spent 30 plus years working with people who have physical and mental disabilities, helping them maintain their current employment at time of diagnosis, and or helping them find other work” (id.). The vocational expert further testified, “I've done vocational evaluations. And the jobs that I've offered are jobs that I have placed people in” (id.). In his decision, the ALJ noted that pursuant to SSR 00-4p, he determined that the vocational expert's testimony was consistent with the DOT and supported by her education, training, and experience, even to the extent that one or more of the limitations stated in the RFC may not be addressed by the DOT (Tr. 25). Moreover, based on the vocational expert's testimony, the ALJ concluded that, considering the plaintiff's age, education, work experience, and RFC, the plaintiff is able of making a successful adjustment to other work that exists in significant numbers in the national economy (id.).
As argued by the Commissioner, the court declines to negate the vocational expert's testimony that an individual with the plaintiff's vocational background and RFC could perform the jobs identified based solely on the plaintiff's conclusory allegation that the testimony was in error according to his calculations. The plaintiff has failed to cite any authority for the proposition that this amount of nonproductive time undermines the vocational expert's testimony or that the ALJ made an internally inconsistent finding by including these limitations in the RFC. Rather, the undersigned finds that the ALJ's decision is supported by substantial evidence. The ALJ included the limitations regarding nonproductive time in the hypothetical posed to the vocational expert and inquired about the vocational expert's training and experience. Based on this experience, the vocational expert concluded that a hypothetical individual in the plaintiff's position was capable of performing jobs that exist in significant numbers in the national economy. Therefore, the undersigned finds that substantial evidence supports the decision and recommends that the district court affirm the ALJ's decision.
In support of this argument, the plaintiff cites Oliver v. Colvin, C/A No. 9:13-516-RMG, 2014 WL 2155241, at *2-5 (D.S.C. May 22, 2014), in which the court remanded because the ALJ found that there was a “complete absence of any subsequent medical records” regarding the plaintiff's mental impairments when the record actually contained numerous entries and findings from medical professionals discussing the plaintiff's mental impairments. The undersigned does not find Oliver persuasive in the instant matter, where the plaintiff argues that the ALJ erred by relying on a vocational expert's testimony regarding the plaintiff's ability to perform certain jobs, even when considering his nonproductive time, in formulating the RFC.
CONCLUSION AND RECOMMENDATION
Based upon the foregoing, this court recommends that the district court find that the Commissioner's decision is based upon substantial evidence and is free of legal error. Accordingly, the Commissioner's decision should be affirmed.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
250 East North Street, Suite 2300
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984). 22