Opinion
C/A No.: 1:16-3572-RBH-SVH
07-14-2017
Donnie Hall, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
This appeal from a denial of social security benefits is before the court for a Report and Recommendation ("Report") pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying his claim for Disability Insurance Benefits ("DIB"). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether she applied the proper legal standards. For the reasons that follow, the undersigned recommends that the Commissioner's decision be reversed and remanded for further proceedings as set forth herein. I. Relevant Background
A. Procedural History
On March 20, 2012, Plaintiff protectively filed an application for DIB in which he alleged his disability began on April 15, 2011. Tr. at 100 and 195-96. His application was denied initially and upon reconsideration. Tr. at 119-22 and 126-27. On March 3, 2015, Plaintiff had a hearing before Administrative Law Judge ("ALJ") Jerry W. Peace. Tr. at 35-41, 42-51, and 52-88 (Hr'g Tr.). The ALJ issued an unfavorable decision on July 1, 2015, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 12-34. Subsequently, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. Tr. at 1-5. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on November 7, 2016. [ECF No. 1].
B. Plaintiff's Background and Medical History
1. Background
Plaintiff was 49 years old at the time of the hearing. Tr. at 59. He completed high school. Id. His past relevant work ("PRW") was as a forklift driver and an occupational therapy aide. Tr. at 82-83. He alleges he has been unable to work since April 15, 2011. Tr. at 195.
2. Medical History
Plaintiff complained of low back discomfort on December 29, 2010. Tr. at 320. He stated that irritable bowel syndrome ("IBS") caused him to have multiple bowel movements each day and requested medication to reduce his symptoms. Id. Marshall L. Meadors, III, M.D. ("Dr. Meadors"), prescribed Flexeril for back pain and Donnatal for IBS. Id. He encouraged significant weight reduction to address his back pain and symptoms of IBS. Id.
On July 12, 2011, Plaintiff indicated he was feeling stressed. Tr. at 318. Dr. Meadors observed that Plaintiff's weight had increased to 295 pounds from 282 pounds in January. Id. He instructed Plaintiff to continue taking the same medications for hypertension and dyslipidemia and prescribed Ativan for anxiety. Id.
On January 10, 2012, Plaintiff's weight had increased by five pounds and he acknowledged "significant room for improvement" in his diet and exercise routines. Tr. at 333. Dr. Meadors noted no abnormalities on examination. Id.
Plaintiff complained of anxiety on January 23, 2012. Tr. at 301. Dr. Meadors indicated Plaintiff had elevated blood glucose, hemoglobin A1c, and creatinine levels, as well as mild anemia. Id. He referred Plaintiff for diabetes education and prescribed Glucotrol, Viagra, Xanax, and home blood sugar management supplies. Id.
On April 3, 2012, Dr. Meadors noted that Plaintiff had been "[w]orking on a healthier lifestyle" and had lost 10 pounds since January. Tr. at 331. Plaintiff stated that Xanax had not been very effective at treating anxiety. Id. Dr. Meadors observed no abnormalities on physical examination. Id. He prescribed Flonase and Proventil HFA, increased Plaintiff's dosage of Xanax, and instructed him to continue to take his other medications. Id.
On July 2, 2012, Dr. Meadors indicated Plaintiff's weight had increased from 297 to 300 pounds. Tr. at 343. Plaintiff reported his home blood glucose readings were good and denied polyuria, polydipsia, polyphagia, numbness, and tingling. Id. Dr. Meadors noted no abnormalities on examination. Id. He instructed Plaintiff to continue his same medications and to walk for 50 minutes per day. Id.
On August 9, 2012, Dr. Meadors noted that Plaintiff was tolerating his medication regimen without problems. Tr. at 467. He indicated on a mental assessment form that he had prescribed Xanax for anxiety. Tr. at 337. He indicated the medication had helped Plaintiff's condition and denied that psychiatric treatment had been recommended. Id. He described Plaintiff as being oriented to time, person, place, and situation; having an intact thought process and appropriate thought content; showing a normal mood/affect; and demonstrating good attention/concentration and memory. Id. He indicated Plaintiff had no work-related limitation in function due to the mental condition and stated he "should be able to work." Id.
State agency medical consultant Dale Van Slooten, M.D. ("Dr. Van Slooten"), completed a physical residual functional capacity ("RFC") assessment on September 5, 2012. Tr. at 94-96. He indicated Plaintiff had the following RFC: occasionally lift and/or carry 50 pounds; frequently lift and/or carry 25 pounds; stand and/or walk for a total of about six hours in an eight-hour workday; sit for about six hours in an eight-hour workday; frequently climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; occasionally climb ladders, ropes, and scaffolds; and avoid concentrated exposure to hazards. Id.
On September 10, 2012, state agency consultant Anna. P. Williams, Ph. D. ("Dr. Williams"), reviewed the record and completed a psychiatric review technique form ("PRTF"). Tr. at 93. She considered Listing 12.06 for anxiety-related disorders, but determined Plaintiff did not have a severe impairment. Id.
Plaintiff completed a patient health questionnaire on October 5, 2012. Tr. at 340. The results were consistent with severe depression. Id. Plaintiff's lab tests revealed slightly high serum glucose at 108 mg/dL, elevated serum creatinine at 1.32 mg/dL, and elevated hemoglobin A1c at 7.0%. Tr. at 495. Dr. Meadors observed no abnormalities on physical examination. Tr. at 341. He prescribed Citalopram. Id.
On November 2, 2012, Plaintiff reported that he was taking Citalopram without problems and that his depression had improved significantly. Tr. at 339. He indicated his blood glucose was "fairly well controlled" and denied polyuria, polydipsia, polyphagia, numbness, and tingling. Id. Dr. Meadors prescribed Adipex for weight loss. Id.
Plaintiff presented to nephrologist Muhammad K. Shakeel, M.D. ("Dr. Shakeel"), for hypertension and elevated creatinine on November 21, 2012. Tr. at 355. Dr. Shakeel noted that Plaintiff's creatinine had increased from 1.3 to 1.43. Tr. at 356. He indicated it was possible that Plaintiff's combination of low blood pressure and use of Fenofibrate and ibuprofen might have caused the increase. Id. He assessed stage two chronic kidney disease, acute kidney injury, hypertension, and diabetes mellitus. Id. He discontinued Fenofibrate; decreased the dosage of Lisinopril; and instructed Plaintiff to avoid nonsteroidal anti-inflammatory medications ("NSAIDS"), to monitor his blood pressure at home, and to follow a low salt diet. Tr. at 356-57.
Plaintiff followed up with Dr. Shakeel on January 18, 2013, and reported no significant changes since his last visit. Tr. at 363. Dr. Shakeel noted that Plaintiff's ultrasound was unremarkable and that his urinalysis was negative for protein or blood. Tr. at 364. He indicated Plaintiff's creatinine was 1.11. Id. He instructed Plaintiff to continue taking the same medications. Id.
Dr. Meadors completed a second mental assessment form on January 18, 2013. Tr. at 361. He indicated Plaintiff had been diagnosed with depression and anxiety and was prescribed Citalopram and Xanax. Id. He noted the medication had helped Plaintiff's condition and denied having recommended psychiatric care. Id. He stated Plaintiff was oriented to time, person, place, and situation; had an intact thought process and thought content; demonstrated a worried/anxious mood/affect; and had good attention/concentration and memory. Id. He described Plaintiff as exhibiting slight work-related limitation in function due to his mental condition, but indicated he was capable of managing his own funds. Id.
On February 1, 2013, Plaintiff requested medication for pain in multiple joints, including his shoulders and knees. Tr. at 382. He complained of waking suddenly during the night and gasping for air. Id. Dr. Meadors noted that Plaintiff weighed 311 pounds, which was a five-pound increase since January 18. Id. He observed that Plaintiff had mild crepitus in his knees and tenderness in his shoulders, but demonstrated fairly good range of motion ("ROM") in his upper extremities. Id. Plaintiff's serum glucose was slightly elevated at 113 mg/dL, but his other lab tests were normal. Tr. at 491-93. Dr. Meadors indicated Plaintiff likely had sleep apnea and referred him for a sleep study. Tr. at 382.
Plaintiff underwent electromyography ("EMG") and nerve conduction velocity ("NCV") testing on February 8, 2013. Tr. at 369-74. He reported bilateral arm pain and numbness and had positive Tinel's signs at the wrists. Tr. at 369. Testing revealed distal median mononeuropathies at the wrists that were consistent with moderate-to-severe bilateral carpal tunnel syndrome ("CTS"). Tr. at 370.
On February 22, 2013, Plaintiff reported bilateral shoulder pain and indicated the right was worse than the left. Tr. at 477. Rebecca W. Norris, M.D. ("Dr. Norris"), observed Plaintiff to have decreased ROM and pain with abduction. Id. She referred him to an orthopedist. Id.
Plaintiff presented to Syed Malik, M.D. ("Dr. Malik"), on March 8, 2013, for an evaluation of suspected sleep apnea. Tr. at 396. He reported a history of loud snoring that had persisted for several years. Id. He complained of difficulty initiating sleep; nocturia up to three times per night; and sleeping for a total of four to five hours per night. Id. He complained of daytime drowsiness and indicated he typically drank two liters of Pepsi per day. Id. Dr. Malik indicated Plaintiff's clinical history and examination findings indicated a "[v]ery high likelihood of obstructive sleep apnea." Tr. at 396. He advised Plaintiff to follow up for diagnostic sleep testing, to reduce his weight, and to curtail his excessive soda consumption. Id. He indicated Plaintiff had a "significant component of anxiety which [was] likely contributing to his insomnia at night." Id.
Plaintiff presented to Timothy Y. Dew, M.D. ("Dr. Dew"), for a consultation regarding bilateral hand pain on March 11, 2013. Tr. at 377. He reported pain with forward flexion of his right shoulder. Id. Dr. Dew observed Plaintiff to have positive Phalen's maneuver, median nerve compression test, and Tinel's sign bilaterally. Id. He indicated Plaintiff was able to flex his wrist to 60 degrees, extend to 60 degrees, and had full pronation and supination. Id. He assessed severe bilateral CTS and possible right shoulder impingement. Tr. at 378. He informed Plaintiff of the treatment options, and Plaintiff opted to proceed with surgery. Id. Dr. Dew performed carpal tunnel release surgery on March 18, 2013. Tr. at 392.
Plaintiff presented to Todd C. Swathwood, M.D. ("Dr. Swathwood"), on March 26, 2013. Tr. at 388. He described pain that radiated from the base of his neck on the right side into his right shoulder, down his arm, and into his hand. Id. He indicated the pain was worse at night and with overhead reaching and would occasionally wake him. Id. He reported a similar, but less severe, problem on the left side. Id. Dr. Swathwood observed Plaintiff to have positive Neer and Hawkins signs on the right; equivocal Speed's and O'Brien's tests on the right; and negative Hawkins, Speed's, Neer, and O'Brien's tests on the left. Id. He indicated Plaintiff demonstrated 5/5 rotator cuff strength, but complained of pain with right supraspinatus testing. Id. He noted Plaintiff was tender at the right trapezius, but in no other areas. Id. He stated Plaintiff's x-rays showed hypertrophic degenerative changes in his bilateral acromioclavicular joints that was worse on the right than the left. Id. Dr. Swathwood diagnosed right shoulder impingement and rotator cuff tendinopathy. Id. He recommended physical therapy and subacromion steroid injections. Tr. at 389.
On April 15, 2013, Dr. Dew removed Plaintiff's sutures. Tr. at 391. He observed some mild epidermolysis, but no signs of infection. Id. Plaintiff was able to oppose his thumb to his small fingers and indicated his sensation had improved. Id. Dr. Dew instructed Plaintiff on scar massage and tendon glides and advised him to avoid heavy lifting and grasping. Id.
Plaintiff followed up with Dr. Malik on April 25, 2013, to review the results of his sleep study. Tr. at 400-02. Dr. Malik noted that Plaintiff's minimum oxygen saturation was 71% and that his sleep efficiency was only 57.6%. Tr. at 402. He indicated continuous positive airway pressure ("CPAP") titration had been ineffective, but bilevel positive airway pressure ("BiPAP") titration had worked. Tr. at 402.
State agency consultant Ted Roper, M.D. ("Dr. Roper"), assessed Plaintiff's physical RFC on May 15, 2013. Tr. at 111-13. He indicated the same restrictions as Dr. Van Slooten, but also found that Plaintiff would be further limited to frequent overhead lifting with the right arm, frequent bilateral handling, and should avoid concentrated exposure to fumes, odors, dusts, gases, poor ventilation, etc. Id.
Plaintiff reported good relief of his right shoulder pain on May 28, 2013. Tr. at 657. Dr. Swathwood indicated Plaintiff had 5/5 right shoulder rotator cuff strength, forward flexion to 130 degrees, and cross-body adduction to 50 degrees. Id. He noted negative Neer and Hawkins signs and equivocal Speed's and O'Brien's tests. Id. He stated Plaintiff was neurovascularly intact to his right upper extremity. Id. Dr. Swathwood recommended that Plaintiff resume a home exercise program and continue to take Voltaren. Id.
On June 10, 2013, Plaintiff presented to licensed counseling psychologist Brian Keith, Ph. D. ("Dr. Keith"), for a consultative examination. Tr. at 421-25. Dr. Keith observed Plaintiff to be oriented in all spheres; to maintain appropriate eye contact; to demonstrate a reserved affect; to smile on occasion; to have slow locomotion and psychomotor functioning; to speak clearly; to be alert and attentive; and to demonstrate an appropriate demeanor. Tr. at 423. Plaintiff described his mood as "bad" and indicated he was sad and depressed, felt drained, had no energy, and felt tired all the time. Id. He reported suicidal thoughts, but denied having a suicide plan. Id. He admitted anger, but denied homicidal ideation. Id. He reported occasional auditory hallucinations, but denied command hallucinations. Id. Dr. Keith indicated that Plaintiff's remote memory appeared to be intact, but that Plaintiff was unable to recall items after a five-minute delay with interference. Id. He stated Plaintiff had limited abstract reasoning ability. Id. He indicated Plaintiff had intact judgment and appeared to have cognitive functioning in the low average to average range. Id. He diagnosed depression. Id. He stated Plaintiff appeared to be capable of managing his own finances, but "may have some difficulty with concentration and persistence." Tr. at 424. He noted that Plaintiff would likely benefit from counseling or therapy. Id. He observed that Plaintiff "had difficulty walking, as locomotion was quite slow." Id.
State agency psychological consultant Craig Horn, Ph. D. ("Dr. Horn"), completed a PRTF on June 20, 2013. Tr. at 108-10. He considered Listing 12.06 and Listing 12.04 for affective disorders. Tr. at 108. He assessed mild restriction of activities of daily living ("ADLs"), mild difficulties in maintaining social functioning, and moderate difficulties in maintaining concentration, persistence, or pace. Id. He indicated in a mental RFC assessment that Plaintiff had moderately limited abilities to carry out detailed instructions and to maintain attention and concentration for extended periods. Tr. at 114.
On July 17, 2013, Plaintiff complained of dizziness, nausea and pain in his knees, elbows, and lower back. Tr. at 461. He endorsed symptoms of depression, anxiety, insomnia, and decreased appetite. Id. Dr. Norris observed Plaintiff to have normal gait, normal motor strength, and full ROM of all extremities. Id.
On August 7, 2013, Plaintiff indicated he was having trouble sleeping for more than a few hours because of back pain. Tr. at 459. He stated Trazodone made him feel dizzy. Id. Dr. Norris prescribed Ambien. Tr. at 460.
Plaintiff presented to Sung J. Han, M.D. ("Dr. Han"), for a pain management evaluation on August 12, 2013. Tr. at 454-55. He reported intermittent aching and throbbing pain in multiple joints from his neck to his ankles. Tr. at 454. He endorsed generalized weakness and poor sleep. Id. He stated he had obtained no relief from a right subacromial steroid injection, physical therapy, or Tramadol. Id. Dr. Han observed Plaintiff to ambulate independently with a normal gait; to be awake, alert, and in fair spirits; to have no gross deformity of any joints; to have fairly good ROM; to demonstrate diffuse tenderness above and below his waist on both sides of his body; to be able to heel-and-toe stand; and to have diffuse paresthesias in a nondermatomal distribution. Id. He assessed multiple joint pain/generalized body ache and anxiety disorder. Id. He prescribed Celexa to replace Cymbalta and advised Plaintiff to follow up in three to four weeks. Id. He indicated he would consider referring Plaintiff to a rheumatologist if he failed to improve. Id.
On August 21, 2013, Plaintiff complained of pain in his back, right arm, neck, shoulders, elbows, and knees. Tr. at 457. He endorsed fatigue, chest pain, shortness of breath, numbness, depression, anxiety, and suicidal/homicidal ideation. Id. He indicated he had difficulty sleeping because of pain and racing thoughts. Id. Dr. Norris referred Plaintiff to a psychiatrist. Tr. at 458.
Plaintiff presented to psychiatrist Dana Wiley, M.D. ("Dr. D. Wiley"), for a psychiatric evaluation on September 19, 2013. Tr. at 514-15. He denied suicidal and homicidal ideations, but indicated a history of overdose in 2000. Tr. at 514. He endorsed depressed mood, a history of manic episodes, auditory hallucinations, paranoid thoughts, and panic attacks. Id. Dr. D. Wiley observed Plaintiff to be alert; to practice good grooming and hygiene; to demonstrate normal behavior; and to have coherent and goal-directed speech. Tr. at 515. She noted that Plaintiff reported having heard various sounds and had paranoid ideations, but denied command psychosis. Id. She described Plaintiff's mood and affect as nervous and depressed. Id. She assessed bipolar-type schizoaffective disorder and assessed a global assessment of functioning ("GAF") score of 50. Tr. at 515. She prescribed Klonopin 1 mg up to three times per day as needed for anxiety; Abilify 10 mg for mood stabilization; and Wellbutrin XL 150 mg for depression. Id.
The GAF scale is used to track clinical progress of individuals with respect to psychological, social, and occupational functioning. American Psychiatric Association: Diagnostic & Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000 ("DSM-IV-TR"). The GAF scale provides 10-point ranges of assessment based on symptom severity and level of functioning. Id. If an individual's symptom severity and level of functioning are discordant, the GAF score reflects the worse of the two. Id.
A GAF score of 41-50 indicates "serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job)." DSM-IV-TR.
Plaintiff presented to Christopher Rubel, M.D. ("Dr. Rubel"), for an initial pain management consultation on October 3, 2013. Tr. at 516. He complained of lower back pain that radiated into his bilateral lower extremities. Id. He endorsed some numbness and tingling and indicated his pain was exacerbated by standing and walking for long periods. Id. He rated his pain as an eight on a 10-point scale. Id. Dr. Rubel observed Plaintiff to have 1+ reflexes in his bilateral biceps, triceps, and Achilles; 2+ reflexes in his bilateral patellae; decreased sensation in his bilateral upper extremities; generalized moderate tenderness over his neck and shoulder girdle; normal head and neck stability, strength, and tone; and moderately restricted cervical flexion to 30 degrees, extension to 30 degrees, lateral flexion to 15 degrees bilaterally, and rotation to 20 degrees bilaterally. Tr. at 517-18. He noted Plaintiff had moderate generalized lumbar tenderness; no kyphosis, lordosis, or scoliosis; moderately restricted lumbar flexion to 30 degrees, extension to 10 degrees, bilateral lateral flexion to 15 degrees, and bilateral rotation to 20 degrees; and normal stability, strength, and tone. Tr. at 518. Dr. Rubel's inspection of Plaintiff's left upper extremity showed no muscle or joint tenderness to palpation; no crepitation; 2/5 deltoid strength; 2/5 trapezius strength; 3/5 biceps strength; 2/5 triceps strength; 2/5 flexor carpi strength; normal tone; and no atrophy. Id. His inspection of Plaintiff right upper extremity indicated generalized tenderness over the shoulder girdle; no crepitation; 2/5 deltoid strength; 2/5 trapezius strength; 3/5 biceps strength; 2/5 triceps strength; 3/5 flexor carpi strength; normal tone; and no atrophy. Id. His examination of Plaintiff's bilateral lower extremities showed no tenderness; no crepitation; 2/5 hamstrings strength; 3/5 quadriceps strength; normal tone; and no atrophy. Id. He indicated Plaintiff had positive bilateral straight-leg raising ("SLR") tests at 15 degrees and positive Kemp's test. Id. He assessed shoulder region pain, neck pain, and cervical radiculitis. Tr. at 518-19. Dr. Rubel discussed the narcotics policy with Plaintiff and had him sign a pain contract; ordered a urine drug sample, NCV and EMG studies of his bilateral upper extremities, and magnetic resonance imaging ("MRI") of his right shoulder; and advised him to follow up in two weeks. Tr. at 519.
On October 10, 2013, EMG and NCV testing of Plaintiff's upper extremities was abnormal. Tr. at 521. Robert S. Westrol, M.D., interpreted the findings to be most consistent with a bilateral median and ulnar mononeuropathy with evidence of axonal injury to the left-sided sensory fibers. Id. He noted evidence of nerve irritation at the right C6 and C7 levels and indicated that it may be due to local injury from spondylosis. Id.
On October 17, 2013, Dr. Rubel indicated the same findings on physical examination that he noted during the prior visit. Compare Tr. at 517-18, with Tr. at 529-30. He prescribed Lortab 7.5/500 mg and instructed Plaintiff to return in four weeks. Tr. at 531.
Plaintiff presented to Anderson Radiology for an MRI of his right shoulder on October 18, 2013. Tr. at 532-33. Radiologist William Smith, M.D., interpreted it to show the following:
1) moderate tendinosis of the supraspinatus, infraspinatus, and subscapular tendons;
2) full-thickness tear of the supraspinatus tendon at the greater tuberosity insertion with extension of the tear posteriorly as an articular surface partial thickness tear into the infraspinatus tendon;
3) intra-articular long head of the biceps tendinosis with possible developing pulley lesion;Id.
4) moderate degenerative changes of the acromioclavicular joint with mild impingement on the supraspinatus tendon; and
5) small joint effusion and subacromial subdeltoid bursitis.
On October 18, 2013, Plaintiff denied side effects and reported he was responding well to his psychiatric medications. Tr. at 513. He denied auditory hallucinations, delusions, and suicidal and homicidal ideations. Id. Dr. D. Wiley observed Plaintiff to be alert; to show intact orientation/memory; to demonstrate good concentration; to have normal speech; to demonstrate no psychosis; to have a euthymic mood and appropriate affect; and to have good insight. Id. She continued Plaintiff's medications at the same dosages. Id.
On October 22, 2013, Plaintiff complained of back and knee pain and mild-to-moderate tiredness that was steadily worsening. Tr. at 607. He denied feeling depressed. Id. Dr. Norris observed no abnormalities on physical examination. Tr. at 609-10. She discontinued Plaintiff's prescriptions for Adipex and Lisinopril and prescribed Losartan 100 mg. Tr. at 610.
Plaintiff complained of pain in his lower back, right shoulder, and bilateral hands on November 14, 2013, and indicated his pain medications were not working. Tr. at 534. He denied side effects from his medications. Id. Dr. Rubel noted the same findings on physical examination that he had indicated during the prior visits. Compare Tr. at 517-18 and 529-30, with Tr. at 535-36. He discussed the MRI findings, prescribed Norco 10/325 mg, and instructed Plaintiff to follow up in four weeks. Tr. at 537.
On November 15, 2013, Plaintiff denied side effects of medications and indicated his mood was more euthymic. Tr. at 512. Dr. D. Wiley observed Plaintiff to be alert; to show intact orientation/memory; to demonstrate good concentration; to have normal speech; to demonstrate no psychosis; to endorse no suicidal or homicidal ideations; to have a euthymic mood and appropriate affect; and to have good insight. Id. She refilled Plaintiff's medications. Id.
On December 11, 2013, Plaintiff complained of increased lower back pain, but reported his shoulder pain remained the same. Tr. at 538. He stated his medications were providing moderate pain relief. Id. Dr. Rubel's observations were consistent with prior examinations. Compare Tr. at 517-18, 529-30, and 535-36, with Tr. at 539-41. He refilled Plaintiff's medications, referred him for an MRI of his lumbar spine, and instructed him to follow up in four weeks. Tr. at 541.
On December 17, 2013, an MRI of Plaintiff's lumbar spine showed no lumbar disc herniation or compressive discopathy, but indicated lumbar facet arthropathy that was particularly pronounced to the right at the L5-S1 level. Tr. at 543.
Plaintiff denied side effects and reported that his medications continued to provide moderate relief on January 9, 2014. Tr. at 544. Dr. Rubel's observations were consistent with prior examinations. Compare Tr. at 517-18, 529-30, 535-36, and 539-41, with Tr. at 545-46. He indicated Plaintiff was stable and refilled his medications. Id.
On January 10, 2014, Plaintiff complained about the cost of Abilify, but indicated it had been effective in decreasing his mood swings. Tr. at 616. Dr. D. Wiley described Plaintiff as being alert; having intact memory and orientation; having good concentration; demonstrating normal speech; having no signs of psychosis or homicidal or suicidal ideation; having an appropriate affect and euthymic mood; and showing good insight. Id. She discontinued Abilify and prescribed Geodon 1 mg. Id.
On February 6, 2014, Plaintiff reported pain in his lower back and bilateral shoulders, knees, hands, and wrists. Tr. at 578. He denied problems with sleep, side effects from medications, and bowel and bladder dysfunction. Id. Dr. Rubel indicated the same findings on physical examination that he had noted during prior visits. Compare Tr. at 517-18, 529-30, 535-36, 539-41, and 545-46, with Tr. at 579-80. He indicated Plaintiff's condition was stable and continued him on the same medications. Tr. at 581.
Plaintiff complained of pain in his lower back and bilateral ankles and legs on March 6, 2014. Tr. at 574. Dr. Rubel observed joint swelling, warmth, and erythema in Plaintiff's lumbar region; tenderness to the spinous process; pain with extension, flexion, and lateral bending; positive SLR test; and positive SI ("sacroiliac") compression test. Id. He noted limited ROM and tenderness in the iliac crests, sciatic notches, and piriformis of Plaintiff's bilateral hips. Tr. at 576. He refilled Plaintiff's medications and instructed him to follow up in four weeks. Id.
On April 2, 2014, Plaintiff denied side effects from medications and indicated they provided moderate relief. Tr. at 573. He complained of a recent increase in right hand pain. Id. Dr. Rubel observed joint swelling, warmth, and erythema in Plaintiff's lumbar region; tenderness to the spinous process; pain with extension, flexion, and lateral bending; positive SLR test; and positive SI compression test. Id. He noted limited ROM and piriformis tenderness in Plaintiff's bilateral hips. Id. He indicated Plaintiff's condition was stable and refilled his medications. Id.
On April 30, 2014, Plaintiff indicated his pain was a 10/10 before medication and a 7/10 after medication. Tr. at 568. He denied gastrointestinal ("GI") symptoms and side effects from medications, but indicated he was not sleeping well. Id. Dr. Rubel observed the following abnormalities in Plaintiff's lumbar region: joint erythema and warmth; tenderness to palpation; pain elicited by flexion, extension, and lateral bending; positive bilateral SLR raising test; and positive sacroiliac compression test. Tr. at 569. He noted Plaintiff had pain and limited ROM in his bilateral hips. Id. Plaintiff demonstrated 3/5 strength in his bilateral lower extremities and 1+ reflexes in his bilateral patellae. Id.
On May 28, 2014, Plaintiff complained of some GI problems as a result of IBS, but stated he was sleeping and tolerating his medications well. Tr. at 564. Dr. Rubel observed Plaintiff to have joint erythema and warmth; tenderness to palpation; and pain with extension and lateral bending in his lumbar region. Tr. at 565. He noted Plaintiff had positive bilateral SLR tests and a positive SI compression test. Id. He observed tenderness at the bilateral iliac crests and sciatic notches of Plaintiff's hips. Id. He indicated Plaintiff had tenderness in his right and left hip piriformis. Id. Plaintiff had reduced 1+ bilateral patellae reflexes and 3/5 bilateral lower extremity strength. Id.
On June 4, 2014, Dr. Norris noted that Plaintiff remained on oral medication for diabetes and did not engage in regular exercise. Tr. at 587. Plaintiff complained of fatigue, shortness of breath, and dyspnea on exertion, but denied other symptoms. Tr. at 589. His blood pressure was 120/80 and he weighed 321 pounds. Id. Dr. Norris noted no abnormalities on physical examination. Tr. at 589-91. She prescribed Neurontin for peripheral neuropathy and referred Plaintiff for lab work and a lower extremity arterial scan. Tr. at 591. Plaintiff's serum glucose was elevated at 196 mg/dL; his hemoglobin was below normal at 13.5 g/dL; and his hemoglobin A1c was elevated at 7.6%. Tr. at 592-93.
On June 13, 2014, Plaintiff denied medication side effects and behavioral problems. Tr. at 615. Dr. D. Wiley observed Plaintiff to be alert; to have intact orientation/memory; to demonstrate good concentration and normal speech; to show no signs of psychosis or suicidal or homicidal ideations; to have a euthymic mood and appropriate affect; and to demonstrate good insight. Tr. at 615. She refilled Plaintiff's prescriptions for Geodon and Wellbutrin XL and increased his Klonopin dosage to two milligrams. Id.
On June 18, 2014, a carotid ultrasound showed mild bilateral bifurcation plaque, mild bilateral internal carotid stenosis, and normal and antegrade vertebral flow. Tr. at 594.
On June 25, 2014, Dr. Rubel observed Plaintiff to have joint swelling and tenderness to palpation in his lumbar region. Tr. at 561. Plaintiff complained of pain with lumbar ROM testing and had a positive SLR test on the left. Id. He had 1+ reflexes in his bilateral patellae and 3/5 strength throughout his bilateral lower extremities. Tr. at 561. Dr. Rubel noted Plaintiff was compliant with narcotic management. Id. He refilled Plaintiff's medications and instructed him to follow up in four weeks. Id.
On July 23, 2014, Plaintiff denied GI issues and side effects from medications. Tr. at 556. He indicated his medications were working well, but rated his pain as an eight on a 10-point scale. Id. Dr. Rubel observed Plaintiff to be in mild distress and chronically ill and to demonstrate limited ambulation. Id. He refilled Plaintiff's medication and instructed him to follow up in four weeks. Tr. at 557.
On August 21, 2014, Plaintiff reported pain in his bilateral shoulders, bilateral hands, upper back, and lower back. Tr. at 551. Dr. Rubel described Plaintiff as being obese, in moderate distress, and ambulating with a cane. Tr. at 552. He noted no other abnormalities on physical examination. Tr. at 552-53. He refilled Plaintiff's medication and instructed him to follow up in eight weeks. Tr. at 553.
Plaintiff complained of sinus pressure and left knee pain on September 11, 2014. Tr. at 692. He indicated his pain had been acutely worse over the prior few weeks. Id. He also reported feeling excessively sleepy and falling asleep during the day. Id. Dr. Norris observed Plaintiff to have inflammation with purulent discharge in his throat, but noted no other abnormalities. Tr. at 694-96. She prescribed antibiotic medication for sinusitis. Tr. at 696. She assessed osteoarthritis of the knee and noted that Plaintiff had been inactive and had gained nine pounds. Id. She also assessed IBS with "diarrhea prominent" and indicated a need to recheck Plaintiff's BiPAP settings. Id. She referred Plaintiff to an orthopedist for his left knee. Id.
On September 12, 2014, Plaintiff indicated he had stopped taking Geodon because it was too expensive and was causing his blood sugar to be elevated. Tr. at 614. Dr. D. Wiley observed Plaintiff to be alert; to have intact orientation and memory; to demonstrate good concentration and normal speech; to have no signs of psychosis or suicidal or homicidal ideations; to have a labile affect; and to demonstrate good insight. Id. She prescribed Klonopin 2 mg, Seroquel XR 50 mg, and Wellbutrin XL 150 mg. Id.
Plaintiff reported bilateral knee pain and difficulty rising from a chair and ascending and descending stairs on September 25, 2014. Tr. at 655. He endorsed greater pain in his left than his right knee. Id. Dr. Swathwood observed that Plaintiff's gait was essentially normal. Id. He noted minimal tenderness over the medial aspect of Plaintiff's bilateral knees. Id. Plaintiff reported increased pain with extremes of passive extension and flexion. Id. Dr. Swathwood assessed bilateral knee degenerative joint disease. Id. He prescribed topical medication and referred Plaintiff for physical therapy. Tr. at 656.
Plaintiff presented to social worker Lee Walker, LISW ("Mr. Walker"), for individual therapy on September 25, 2014. Tr. at 723. He indicated he was jealous that his wife may be attracted to other men and was tracking her activities to ensure her faithfulness. Id. He admitted he had no evidence that his wife had been or would be unfaithful, but allowed his fear to consume his thoughts. Id. Mr. Walker attempted to help Plaintiff reframe his thoughts. Id. He noted Plaintiff had passive suicidal ideation, but presented no threat. Id.
Mr. Walker observed that Plaintiff was "in the usual mildly depressed state," but that "his emotional burdens were less severe" on October 9, 2014. Tr. at 722. Plaintiff reported that he was sleeping more and felt more restless when he was awake. Id. Mr. Walker indicated Plaintiff was "making progress." Id.
Plaintiff complained of left shoulder pain, shortness of breath, and chest discomfort on October 22, 2014. Tr. at 687. He described his left shoulder pain as a dull and aching pain that radiated into his left elbow and hand. Id. Dr. Norris noted no abnormalities on physical examination. Tr. at 690-91.
On October 23, 2014, Dr. Rubel observed that Plaintiff appeared to be in mild distress. Tr. at 651. He noted that a urine drug screen was negative for "all agents." Tr. at 652. He refilled Plaintiff's prescription for Norco 10-325 mg. Tr. at 653.
Plaintiff endorsed good sleep and appetite and denied side effects from medications and behavioral issues on November 5, 2014. Tr. at 709. Dr. D. Wiley observed Plaintiff to be alert; to have intact orientation/memory; to demonstrate good concentration and normal speech; to display no signs of psychosis; to endorse no suicidal or homicidal ideations; to have a euthymic mood and appropriate affect; and to show good insight. Id.
On November 20, 2014, Mr. Walker noted that Plaintiff remained very depressed and continued to experience passive suicidal ideation. Tr. at 720. He stated Plaintiff used "cutting himself as a relief mechanism" and noted that they had "expolfred [sic] this theme for safety risk evaluation." Id. He indicated Plaintiff saw little value in himself, but he encouraged Plaintiff to realize that others sought his advice and affirmation. Id.
Plaintiff reported he was tolerating his medication well and without side effects on November 20, 2014. Tr. at 646. Dr. Rubel observed Plaintiff to be in mild distress, but noted no other abnormalities on physical examination. Tr. at 646-47. He made no changes to Plaintiff's medications. Tr. at 647-48.
Plaintiff complained of difficulty descending stairs and rising from a chair on November 24, 2014. Tr. at 654. He indicated topical medications had provided minimal relief. Id. Dr. Swathwood observed Plaintiff to have full passive extension of his bilateral knees with a 10-degree bilateral extensor lag. Id. Plaintiff was able to flex his knees to approximately 130 degrees with minimal discomfort. Id. Dr. Swathwood noted Plaintiff had negative Lachman and interior and posterior drawer tests. Id. He stated Plaintiff's knees were stable to varus and valgus stress. Id. He noted Plaintiff was neurovascularly intact in both lower extremities. Id. After discussing treatment options, Dr. Swathwood administered steroid injections to Plaintiff's bilateral knees. Id.
On December 4, 2014, Plaintiff denied side effects from medications and behavioral issues. Tr. at 708. Dr. D. Wiley observed Plaintiff to be alert; to have intact orientation/memory; to demonstrate good concentration and normal speech; to show no signs of psychosis; to endorse no suicidal or homicidal ideations; to display a euthymic mood and appropriate affect; and to have good insight. Id.
Plaintiff complained of pain in his lower back, thoracic spine, right wrist, and bilateral legs and knees on December 17, 2014. Tr. at 637. He reported that his knee pain had increased since his orthopedist administered injections. Tr. at 639. He stated his medication was working well without side effects, but indicated his pain level remained at a seven with the medication. Id. Brian A. Wiley, M.D. ("Dr. B. Wiley"), observed that Plaintiff had an antalgic gait. Id. He continued Plaintiff's medications. Id.
Mr. Walker noted that Plaintiff was more relaxed and indicated he was "feeling okay" on December 18, 2014. Tr. at 719. Plaintiff reported he had been asked to give eulogies for members of his and his friends' extended families. Id. Mr. Walker encouraged Plaintiff to be encouraged by the fact that others had sought his counsel. Id.
On December 26, 2014, Plaintiff reported shooting pain in his arms and legs, multiple incidents of dizziness, shortness of breath, and feeling easily fatigued. Tr. at 683. Dr. Norris noted no abnormalities on physical examination. Tr. at 685-86.
Plaintiff complained of vertigo and shortness of breath on January 14, 2015. Tr. at 678. Dr. Norris observed no abnormalities on physical examination. Tr. at 680-82. She indicated Plaintiff's symptoms may be associated with elevated blood sugar. Tr. at 682. Plaintiff indicated he had not been checking his blood glucose because he had been unable to find his glucose meter. Id. Dr. Norris gave him a new meter and instructed him to maintain a log of his blood glucose levels and to follow up in one week. Id.
On January 21, 2015, Plaintiff reported that his blood glucose was consistently above 300. Tr. at 673. Dr. Norris discontinued Tradjenta and Januvia and prescribed Victoza. Tr. at 676. She informed Plaintiff that she would have to prescribe insulin if Victoza was ineffective in reducing his blood sugar. Id.
Mr. Walker described Plaintiff as being "rather relaxed." on January 23, 2015. Tr. at 718. Plaintiff endorsed some thoughts of suicide and self-mutilation. Id. They discussed a letter that Plaintiff had written when he contemplated suicide in 1985. Id. Mr. Walker indicated Plaintiff had passive suicidal ideation, but presented no significant threat. Id.
On January 28, 2015, Plaintiff complained of tingling, weakness, and bladder changes, but indicated the bladder changes were likely caused by diabetes. Tr. at 632. He denied side effects from medications. Id. Dr. B. Wiley noted no abnormalities on physical examination. Tr. at 632-33. He recommended Plaintiff follow up with an orthopedist for knee pain and take an NSAID, but Plaintiff declined the NSAID because of acid reflux. Tr. at 633. He ordered EMG and NCV testing of Plaintiff's upper extremities based on his complaints of persistent wrist pain and numbness. Tr. at 634.
On February 4, 2015, Dr. Norris indicated Plaintiff had lost five pounds since he started Victoza. Tr. at 668. She noted no abnormalities on physical examination. Tr. at 670-71.
Plaintiff indicated he was struggling with memories of violence on February 6, 2015. Tr. at 717. Mr. Walker observed that Plaintiff had a history of withholding anger until it resulted in an inappropriate, explosive reaction and then experiencing guilt and shame. Id. He indicated Plaintiff was making good progress. Id.
On February 11, 2015, Dr. Norris noted Plaintiff's blood glucose was consistently over 300 and that his hemoglobin A1c had been 12.6% during the prior month's visit. Tr. at 663. She instructed Plaintiff to titrate up his dosage of Victoza. Tr. at 667.
Mr. Walker observed that Plaintiff was more energetic on February 20, 2015. Tr. at 716. Plaintiff complained of difficulty managing his diabetes and conflict with his wife. Id. He denied suicidal and homicidal ideations. Id.
On March 6, 2015, Dr. D. Wiley observed Plaintiff to be alert; to have intact orientation/memory; to demonstrate good concentration; to have normal speech; to demonstrate no signs of psychosis or suicidal or homicidal ideation; to have euthymic mood and appropriate affect; and to show good insight. Tr. at 707.
Plaintiff complained of family conflict on March 13, 2015. Tr. at 714. Mr. Walker indicated Plaintiff was angry and had "no pragmatic method of using this anger constructively." Id. He stated Plaintiff's anger contributed to his "strong suicidal preoccupations." Id. He indicated he had increased the frequency of Plaintiff's visits to every two weeks to ensure his safety. Id.
On March 27, 2015, Plaintiff indicated he considered himself to be a failure. Tr. at 713. Mr. Walker noted Plaintiff was experiencing more paranoia about others gossiping about him and his wife being interested in other men. Id. He encouraged Plaintiff to remain focused on reality and his positive interactions with friends. Id.
Mr. Walker observed that Plaintiff seemed more optimistic during a visit on April 10, 2015. Tr. at 712. He indicated that Plaintiff had focused on relationship issues more than his pain and disabling conditions. Id. He stated Plaintiff had "real experienced cultural issues that engender significant distrust" and was "very unforgiving of his past" even though he was able to forgive others. Id.
On April 24, 2015, Mr. Walker noted that Plaintiff was less distressed. Tr. at 711. He indicated Plaintiff continued to endorse a "wish to die," but was less obsessed with suicidal thoughts. Id. Plaintiff indicated he felt better after having reached out to an old friend who recently lost her son. Id.
On May 8, 2015, Mr. Walker indicated Plaintiff continued to fight suicidal ideation. Tr. at 710. Plaintiff indicated it was impossible for him to be optimistic. Id. Mr. Walker discussed with Plaintiff his influential role as a spiritual advisor in the community and encouraged him to realize his value. Id. He indicated Plaintiff presented no significant suicidal risk. Id.
C. The Administrative Proceedings
1. The Administrative Hearing
a. Plaintiff's Testimony
At the hearing on March 3, 2015, Plaintiff testified that he was 5'9" tall and weighed 290 pounds. Tr. at 59. He indicated he had been laid off from his job as a forklift operator in February 2010 and had subsequently collected unemployment benefits. Tr. at 62-63. He stated that he had problems with falling asleep on the job and visiting the restroom frequently before he stopped working. Tr. at 64-65. He stated he discontinued his search for work in early 2011, after his impairments worsened. Tr. at 63. He indicated he had attended vocational rehabilitation in 2012, but that his hand pain and back pain had worsened while he was engaged in the program. Tr. at 79.
Plaintiff testified that his impairments included sleep apnea, diabetes, high cholesterol, high blood pressure, and IBS. Tr. at 64. He indicated he felt fatigued and had no energy. Id. He reported that he would need to use the restroom between five and 15 times during a workday. Tr. at 81. He stated he had been diagnosed with bilateral CTS and had undergone hand surgery, but continued to have problems as a result of diabetic neuropathy. Tr. at 65. He endorsed pain in his back, knees, shoulder, and bicep. Id. He stated he took medication for gout. Tr. at 66.
Plaintiff reported overwhelming symptoms of depression and anxiety. Tr. at 65. He stated he had hallucinations. Id. He indicated he would sometimes cut his wrists because he felt that it helped to relieve stress, but stated Dr. Norris had told him that it was not a constructive means for dealing with stress. Tr. at 75. He confirmed that he experienced suicidal and homicidal thoughts. Tr. at 76-78. He denied having been hospitalized for mental illness, but indicated his doctor had urged him to seek inpatient treatment in 2013. Tr. at 78-79.
Plaintiff testified that his doctor prescribed Lortab for his back pain and administered injections to his knees and shoulder. Tr. at 66 and 67. He endorsed constant pain, but indicated it worsened with any activity. Id. He stated his pain was relieved by lying down and taking Lortab and Gabapentin. Id. He indicated physical therapy had not relieved his shoulder pain. Tr. at 67. Plaintiff stated his blood glucose levels were typically in the 400s. Tr. at 71. He indicated his doctor had prescribed Victoza, but it had not reduced his blood glucose level. Id. He denied having had back or shoulder surgery. Id. He testified that seeing a psychiatrist had been helpful to the extent that it allowed him to talk about some of the issues that bothered him. Tr. at 71-72. He indicated that his depression medication sometimes made him feel more depressed and that his anxiety medication made him sleep. Tr. at 72. He endorsed dizziness, but indicated he did not know its source. Id. He indicated his psychiatrist had prescribed Seroquel, but he had been unable to take it every night because it caused extreme sleepiness. Id.
Plaintiff estimated he could stand for 10 to 15 minutes, sit for 15 minutes, and walk for five minutes at a time. Tr. at 73-74. He was unable to estimate how much weight he could lift. Tr. at 74. He denied using a cane, but indicated his doctor had recommended he use one. Id. He stated he had difficulty bending. Id. He endorsed pain in his fingers and indicated they would "stick together." Id. He stated he often dropped items. Id.
Plaintiff testified he typically awoke around 6:00 a.m. to drive his wife to work. Tr. at 73. He stated he cried and slept a lot during a typical day. Id. He reported he would often fall asleep while watching television. Id. He stated he did not usually read because he was unable to retain information. Id. He indicated he did "very little" cooking, cleaning, and shopping. Tr. at 69-70. He reported he was able to bathe, shave, and dress without assistance, but did not engage in these activities every day because they caused him pain. Tr. at 69. He indicated he attended church, visited with family during holidays, and went out to eat on rare occasions. Tr. at 70. He stated he used a smartphone and maintained a Facebook account. Id.
b. Vocational Expert Testimony
Vocational Expert ("VE") G. Roy Sumpter reviewed the record and testified at the hearing. Tr. at 81-86. The VE categorized Plaintiff's PRW as a forklift driver, Dictionary of Occupational Titles ("DOT") number 921.683-050, as requiring exertion at the medium level and having a specific vocational preparation ("SVP") of three, and an occupational therapy aide, DOT number 355.377-010, as requiring exertion at the medium level and having an SVP of four. Tr. at 82-83. The ALJ described a hypothetical individual of Plaintiff's vocational profile who could lift up to 50 pounds occasionally and up to 25 pounds frequently; could occasionally climb ladders, ropes, and scaffolds; could frequently balance, stoop, crouch, kneel, crawl, and climb ramps and stairs; could perform frequent right overhand reaching and bilateral handling; could frequently be exposed to environmental irritants such as fumes, odors, dusts, and gases; and would be limited to one or two step tasks. Tr. at 83. The VE testified that the hypothetical individual would be unable to perform Plaintiff's past relevant work. Id. The ALJ asked whether there were any other jobs in the regional or national economy that the hypothetical person could perform. Id. The VE identified medium jobs with an SVP of two as a food service worker/dietary aide, DOT number 319.677-014, with 245,000 positions in the national economy; a dining room attendant, DOT number 311.677-018, with 410,000 positions in the national economy; and a laundry worker, DOT number 361.687-018, with 426,000 positions in the national economy. Tr. at 83-84.
For a second hypothetical question, the ALJ asked the VE to consider an individual of Plaintiff's vocational profile who could lift and carry up to 50 pounds occasionally and up to 25 pounds frequently; could never climb ladders, ropes, scaffolds, ramps, or stairs; could frequently balance and stoop; could occasionally crouch, kneel, and crawl; could perform frequent right overhead reaching and bilateral handling; could frequently be exposed to environmental irritants such as fumes, odors, dusts, and gases; and would be limited to work involving one or two step tasks. Tr. at 84. He asked if there would be jobs available for someone with those limitations. Id. The VE stated the jobs identified in response to the first hypothetical question would allow for the restrictions in the second, as well. Id.
For a third hypothetical question, the ALJ asked the VE to consider an individual of Plaintiff's vocational profile who could lift and carry up to 20 pounds occasionally and up to 10 pounds frequently; could stand or walk for approximately six hours in an eight-hour workday; could sit for six hours in an eight-hour workday; could never climb ladders, ropes, scaffolds, ramps, or stairs; could frequently balance and stoop; could occasionally crouch, kneel, and crawl; could perform frequent right overhead reaching and bilateral handling; could frequently be exposed to environmental irritants such as fumes, odors, dusts, and gases; and would be limited to work involving one or two step tasks. Tr. at 84-85. He asked if there would be jobs available for someone with those limitations. Tr. at 85. The VE identified light jobs with an SVP of two as a cashier II, DOT number 211.462-010, with 3,300,000 positions nationally; a storage facility rental clerk, DOT number 295.367-026, with 430,000 positions nationally; and a final inspector, DOT number 727.687-054. Id. For the final inspector position, the VE stated he was "going to cut the numbers in half" to accommodate the restriction to one or two step tasks. Id. He indicated that the restriction would still allow for performance of 235,000 final inspector positions in the national economy. Id.
For a fourth hypothetical question, the ALJ asked the VE to consider an individual of Plaintiff's vocational profile who was limited as described in the third question, but would also need to take breaks for 10 to 15 minutes each hour, in addition to regularly scheduled breaks. Tr. at 85-86. He asked if the individual would be able to perform any jobs. Tr. at 86. The VE stated that the additional restriction would be "incompatible with any form of competitive employment. Tr. at 86.
Plaintiff's attorney asked the VE if an individual would be able to perform any of the jobs identified in response to the prior questions if he were limited to work at the light exertional level with only occasional bilateral handling. Id. The VE indicated the individual would be unable to perform any of the jobs. Id.
2. The ALJ's Findings
In his decision dated July 1, 2015, the ALJ made the following findings of fact and conclusions of law:
1. The claimant meets the insured status requirements of the Social Security Act through June 30, 2015.
2. The claimant has not engaged in substantial gainful activity since April 15, 2011, the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe combination of impairments: obesity, type II diabetes, degenerative disc disease of lumbar spine, degenerative joint disease involving shoulder, carpal tunnel syndrome, status-post bilateral carpal tunnel release, anxiety and affective disorder (20 CFR 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 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. 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 404.1567(c) except never climb ladders/ropes/scaffolds, frequent climbing ramps/stairs, balancing or stooping, and occasional crouching, kneeling, or crawling. He can frequently overhead reach with right upper extremity and frequently handle with bilateral upper extremities. He is limited to frequent exposure to environmental irritants such as fumes, odors, dusts or gases. He can perform one or two step tasks.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on June 14, 1965 and was 45 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date. The claimant subsequently changed age category to closely approaching advanced age (20 CFR 404.1563).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 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 CFR Part 404, Subpart P, Appendix 2).Tr. at 17-27. II. Discussion
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 CFR 404.1569 and 404.1569(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from April 15, 2011, through the date of this decision (20 CFR 404.1520(g)).
Plaintiff alleges the Commissioner erred for the following reasons:
1) the ALJ erred in relying on the VE's testimony to prove that Plaintiff could perform alternative jobs at step five; and
2) the ALJ did not adequately consider Plaintiff's treating physicians' opinions.
The Commissioner counters that substantial evidence supports the ALJ's findings and that the ALJ committed no legal error in his decision.
A. Legal Framework
1. The Commissioner's Determination-of-Disability Process
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a "disability." 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability as:
the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for at least 12 consecutive months.42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983) (discussing considerations and noting "need for efficiency" in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity; (2) whether he has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents him from doing substantial gainful employment. See 20 C.F.R. § 404.1520. These considerations are sometimes referred to as the "five steps" of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).
The Commissioner's regulations include an extensive list of impairments ("the Listings" or "Listed impairments") the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. § 404.1525. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, he will be found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that his impairments match several specific criteria or are "at least equal in severity and duration to [those] criteria." 20 C.F.R. § 404.1526; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's past relevant work to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. § 404.1520(h).
A claimant is not disabled within the meaning of the Act if he can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, § 404.1520(a), (b); Social Security Ruling ("SSR") 82-62 (1982). The claimant bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the regional economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that he is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of "any final decision of the Commissioner [] made after a hearing to which he was a party." 42 U.S.C. § 405(g). The scope of that federal court review is narrowly-tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See id.; Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to "try these cases de novo or resolve mere conflicts in the evidence." Vitek v. Finch, 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also 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 "even should the court disagree with such decision." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
B. Analysis
1. Conflict Between VE Testimony and the DOT
Plaintiff argues the ALJ erred in relying on the VE's testimony to meet the Commissioner's burden at step five. [ECF No. 10 at 28]. He maintains that the DOT's descriptions of the jobs the VE identified in response to the ALJ's hypothetical question conflict with provisions in the assessed RFC for one to two step tasks because the jobs are described as having general educational development ("GED") reasoning levels of two and three. Id. at 29-32. He contends that the VE did not address the conflict and that the ALJ failed to identify or resolve it. Id. at 32-33.
The Commissioner argues that the VE acknowledged and reduced the number of final inspector jobs to specifically account for the limitation to one or two step processes and that the ALJ acknowledged this reduction in his decision. [ECF No. 11 at 9]. She contends that the regulations only require that an individual be able to perform work that exists in significant numbers "in one or more occupations" in the national economy. Id. at 9-10.
After having determined that a claimant cannot perform his PRW, the ALJ bears the burden to prove that the claimant's RFC would allow him to perform other jobs that exist in significant numbers in the national economy. Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015), citing Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). The ALJ must take administrative notice of job information in the DOT. 20 C.F.R. § 404.1566(d); see also SSR 00-4p (providing that "we rely primarily on the DOT (including its companion publication, the SCO) for information about the requirements of work in the national economy"). However, it may also be necessary for the ALJ to call upon the services of a VE to determine how certain restrictions affect the claimant's ability to perform specific jobs. 20 C.F.R. § 404.1566(e). If the VE's testimony appears to conflict with job descriptions in the DOT, the ALJ is required to "'[i]dentify and obtain a reasonable explanation' for conflicts between the vocational expert's testimony and the Dictionary, and to '[e]xplain in the determination or decision how any conflict that has been identified was resolved.'" Pearson, 810 F.3d at 208, citing SSR 00-4p (emphasis in original).
In Pearson, the Fourth Circuit noted that SSR 00-4p sets forth two independent responsibilities. Id. "First, the ALJ must '[a]sk the [vocational expert] . . . if the evidence he or she has provided conflicts with the information provided in the [DOT]'; and second, '[i]f the [vocational expert]'s . . . evidence appears to conflict with the [DOT],' the ALJ must 'obtain a reasonable explanation for the apparent conflict.'" Id. at 208, citing SSR 00-4p. "SSR 00-4p directs the ALJ to 'resolve the conflict by determining if the explanation given by the [expert] is reasonable'" and "to 'explain the resolution of the conflict irrespective of how the conflict was identified.'" Id. at 208, citing SSR 00-4p (emphasis in original). Thus, "[t]he ALJ independently must identify conflicts between the expert's testimony and the Dictionary." Id. at 209. Furthermore, "an ALJ has not fully developed the record if it contains an unresolved conflict between the VE's testimony and the DOT" and "an ALJ errs if he ignores an apparent conflict on the basis that the VE testified that no conflict existed." Henderson v. Colvin, 643 F. App'x 273, 277 (4th Cir. 2016) (per curiam), citing Pearson, 810 F.3d at 210.
The court explained that an "apparent conflict" existed when the VE's evidence "appear[ed] to conflict with the Dictionary." Pearson, 810 F.3d at 209.
In the instant case the ALJ found that Plaintiff had the RFC to perform light work that did not require he climb ladders, ropes, or scaffolds; allowed for frequent climbing of ramps and stairs, balancing, and stooping; permitted occasional crouching, kneeling, and crawling; provided for frequent overhead reaching with the right upper extremity and handling with the bilateral upper extremities; included frequent exposure to environmental irritants; and involved one or two step tasks. Tr. at 21. The ALJ assessed an RFC that mirrored the third hypothetical question he presented to the VE during the hearing. Compare Tr. at 21, with Tr. at 84-85. He relied on the VE's responses to that hypothetical question to conclude that Plaintiff was not able to perform his PRW, but was able to perform jobs as a cashier II, a storage facility rental clerk, and a final inspector. Tr. at 25 and 26.
A review of the DOT indicates that the jobs of cashier II and storage facility rental clerk are described as having a GED reasoning level of three and requiring that the individual "[a]pply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form" and "[d]eal with problems involving several concrete variables in or from standardized situations." 211.462-010, CASHIER II. DOT (4th ed., revised 1991), 1991 WL 671840 and 295.367-026, STORAGE-FACILITY RENTAL CLERK. DOT (4th ed., revised 1991), 1991 WL 672594. The DOT describes the job of final inspector as having a GED reasoning level of two and requiring that the individual "[a]pply commonsense understand to carry out detailed but uninvolved written or oral instructions" and "[d]eal with problems involving few concrete variables in or from standard situations." 727.687-054, FINAL INSPECTOR. DOT (4th ed., revised 1991), 1991 WL 679672.
In Henderson, 643 F. App'x at 277, the court acknowledged that "there is an apparent conflict between an RFC that limits [a claimant] to one-to-two step instructions and GED reasoning Code 2, which requires the ability to understand detailed instructions." Accordingly, the court found that the ALJ failed to meet his burden at step five because the VE's testimony did not provide substantial evidence to show that the plaintiff's RFC would allow him to perform work that existed in significant numbers. See id. at 277; see also Pearson, 810 F.3d at 207-10. Although Henderson is an unpublished opinion, this court has applied its holding in subsequent cases. See Pearson v. Commissioner of Social Security Administration, No. 1:16-2726-PMD-SVH, 2017 WL 1378197, at *12-13 (D.S.C. Mar. 29, 2017), adopted by 2017 WL 1364220 (D.S.C. Apr. 14, 2017); (finding that the Fourth Circuit's decision in Henderson and subsequent cases in the district directed a finding that there was an apparent conflict between an RFC that limited the plaintiff to perform jobs with one or two step tasks and the ALJ's finding that she could perform jobs with GED reasoning codes of two and three); Christopherson v. Colvin, No. 6:15-4725-JMC-KFM, 2016 WL 7223283, at *9 (D.S.C. Nov. 18, 2016) (relying on the Fourth Circuit's holding in Henderson and earlier cases in the district to find that an apparent conflict existed between the limitation in the RFC to "simple, routine, and repetitive tasks" and identified jobs with GED reasoning levels of two and three); Sullivan v. Colvin, No. 8:16-79-JMC-JDA, 2016 WL 7228854, at *10 (D.S.C. Nov. 10, 2016) (following Henderson in finding the restriction in the RFC to one or two step tasks created an apparent conflict with the jobs the VE identified that had a GED reasoning code of two).
Based on the Fourth Circuit's reasoning in Henderson and this court's holdings in subsequent cases, the undersigned is constrained to find that the VE's testimony created a conflict between the restriction in the RFC assessment to one and two step tasks and the DOT's descriptions of the job of final inspector as having GED reasoning level of two and cashier II and storage facility rental clerk as having GED reasoning levels of three. In the absence of any recognition of the conflict between the DOT's descriptions of the jobs of cashier II and storage facility rental clerk and the VE's testimony that an individual limited to one and two step tasks could perform them, the ALJ erred in relying on these jobs to meet the Commissioner's burden at step five.
Although a conflict also existed between the DOT's description of the job of final inspector and the VE's testimony, it appears the VE identified the conflict. In response to the ALJ's third hypothetical question, the VE stated the following:
And a third would be a final inspector and this is usually of small objects, electrical devices, DOT 727.687-054. To make sure that we meet the intent of the one or two-step, I'm going to cut the numbers in half. The idea is to make sure that we're not discriminating between very fine and complex but more gross defects. So nationally would be 235,000.Tr. at 85.
Plaintiff argues that the VE's explanation was not clear and that he appeared to be referencing lower manipulation levels, as opposed to the reasoning level conflict. [ECF No. 12 at 2-3]. The undersigned is not persuaded by Plaintiff's argument for several reasons. First, the VE explicitly stated that he was reducing the numbers "[t]o make sure that we meet the intent of the one or two step." See Tr. at 85. Second, the definition of the job of final inspector undermines Plaintiff's argument. The DOT provides the following general definition for a final inspector:
Tests polarity connections on finished storage batteries and inspects final assembly for defects. Positions metal prongs of testing unit over terminal of intercell connecting straps and observes bulb on testing unit that lights
when cell arrangement is correct. Examines assembly for defects, such as omission of symbols on battery posts, uneven sealing, and cracked covers.727.687-054, FINAL INSPECTOR. DOT (4th ed., revised 1991), 1991 WL 679672. Given this definition, it appears the VE attempted to clarify in his testimony that he had reduced the number of final inspector jobs to represent only those that would require the individual to identify "gross defects" in the product, as opposed to "very fine and complex" defects. See Tr. at 85. Finally, the DOT's description of the final inspector job as requiring frequent reaching and handling was consistent with the RFC assessment. See 727.687-054, FINAL INSPECTOR. DOT (4th ed., revised 1991), 1991 WL 679672. Therefore, the VE would have had no reason to reduce the number of final inspector jobs based on manipulation levels.
The ALJ accepted the VE's explanation for the deviation from the DOT in finding that Plaintiff was capable of performing the reduced number of final inspector jobs. Compare Tr. at 26, with Tr. at 85. Thus, it appears the ALJ identified and obtained a reasonable explanation for the conflict and explained that he resolved it in favor of accepting the VE's testimony that the number of jobs would be reduced in light of the restriction to one and two step tasks. See Pearson, 810 F.3d at 208.
Pursuant to 20 C.F.R. § 404.1566(b) "[w]ork exists in the national economy where there is a significant number of jobs (in one or more occupations) having requirements which you are able to meet with your physical or mental abilities and vocational qualifications." Because the regulation specifies that the Commissioner may rely on a significant number of jobs in one occupation, the ALJ met the burden at step five by identifying the job of final inspector as one that could be performed by an individual with Plaintiff's RFC. The 235,000 final inspector positions represent a significant number of jobs in the national economy. See Guiton v. Colvin, 546 F. App'x 137, 142 (4th Cir. 2013) (holding that even if the VE was overinclusive in citing the existence of 26,330 jobs in North Carolina and 825,000 jobs in the United States, "far smaller figures would suffice to satisfy the Commissioner's burden), citing Hicks v. Califano, 600 F.2d 1048, 1051 n.2 (4th Cir. 1979) (holding that 110 jobs in the claimant's state was a significant number). In light of the foregoing, the undersigned recommends the court find that the ALJ satisfied the Commissioner's burden to prove that Plaintiff's RFC would allow him to perform a significant number of jobs in the economy.
2. Treating Physicians' Opinions
Plaintiff argues that the ALJ did not adequately consider opinions from his treating physicians. [ECF No. 10 at 33]. The Commissioner maintains that substantial evidence supports the ALJ's assessment of the medical opinions. [ECF No. 11 at 10].
The regulations direct ALJs to accord controlling weight to treating physicians' opinions that are well-supported by medically-acceptable clinical and laboratory diagnostic techniques and that are not inconsistent with the other substantial evidence of record. 20 C.F.R. § 404.1527(c)(2). If a treating physician's opinion is not well-supported by medically-acceptable clinical and laboratory diagnostic techniques or if it is inconsistent with the other substantial evidence of record, the ALJ may decline to give it controlling weight. SSR 96-2p, 1996 WL 374188, at *2 (1996). However, the ALJ's evaluation of the treating source's opinion does not end with the determination that it is not entitled to controlling weight. Johnson, 434 F.3d at 654; SSR 96-2p, 1996 WL 374188, at *4 (1996). The ALJ must proceed to weigh the treating physician's opinion, along with all the other medical opinions of record, based on the factors in 20 C.F.R. § 404.1527(c), which include (1) the examining relationship between the claimant and the medical provider; (2) the treatment relationship between the claimant and the medical provider, including the length of the treatment relationship and frequency of treatment and the nature and extent of the treatment relationship; (3) the supportability of the medical provider's opinion in his or her own treatment records; (4) the consistency of the medical opinion with other evidence in the record; and (5) the specialization of the medical provider offering the opinion. Id.
An ALJ should give some deference to a treating source's opinion, even if it is not well-supported by medically-acceptable clinical and laboratory diagnostic techniques or is inconsistent with the other substantial evidence in the case record. 20 C.F.R. § 404.1527(c)(2); see also SSR 96-2p, 1996 WL 374188, at *3 (1996). Nevertheless, "the ALJ holds the discretion to give less weight to the testimony of a treating physician in the face of persuasive contrary evidence." Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001), citing Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992).
If the ALJ issues a decision that is not fully favorable, his decision "must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reason for that weight." SSR 96-2p, 1996 WL 374188, at *5 (1996). The ALJ must "always give good reasons" for the weight he accords to a treating physician's opinion. 20 C.F.R. § 404.1527(c)(2). This court should not disturb an ALJ's determination as to the weight to be assigned to a medical source opinion "absent some indication that the ALJ has dredged up 'specious inconsistencies,' Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992), or has not given good reason for the weight afforded a particular opinion." Craft v. Apfel, 164 F.3d 624 (Table), 1998 WL 702296, at *2 (4th Cir. 1998) (per curiam).
In view of the foregoing authority, the undersigned considers Plaintiff's specific allegations of error.
a. Dr. D. Wiley's Opinion
During Plaintiff's initial psychiatric evaluation on September 19, 2013, Dr. D. Wiley assessed a GAF score of 50.
Plaintiff argues the ALJ erred in failing to evaluate the GAF score that Dr. D. Wiley assessed. [ECF No. 10 at 36]. The Commissioner maintains that the ALJ's failure to address the singular GAF score did not create reversible error. [ECF No. 11 at 12-14]. She contends that the GAF score was assessed during Plaintiff's first visit with Dr. D. Wiley and that subsequent visits showed marked improvement. Id. at 14. She argues the ALJ permissibly considered the totality of Dr. D. Wiley's record. Id. at 14-15.
In prior cases, this court has held that GAF scores are meaningful to the claimant's functioning only at the time that they are assessed and lack meaning without additional context. See Parker v. Astrue, 664 F. Supp. 2d 544, 557 (D.S.C. 2009). The psychiatric community has moved away from the use of the GAF scale and omitted it from the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders ("DSM-5"). See American Psychiatric Association: Diagnostic & Statistical Manual of Mental Disorders, Fifth Edition. Arlington, VA, American Psychiatric Association, 2013 ("It was recommended that the GAF be dropped from DSM-5 for several reasons, including its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice."). Despite the psychiatric community's reduced reliance on the GAF scale, the Social Security Administration ("SSA") issued a directive that ALJs consider GAF scores within the following parameters:
For purposes of the Social Security disability programs, when it comes from an acceptable medical source, a GAF rating is a medical opinion as defined in 20 CFR § 416.927(a)(2). An adjudicator considers a GAF score with all of the relevant evidence in the case file and weighs a GAF rating as required by 20 CFR § 416.927(c), and SSR 06-03p, while keeping the following in mind:Emrich v. Colvin, 90 F. Supp. 3d 480, 492 (M.D.N.C. 2015), citing SSA, AM-13066, "Global Assessment of Functioning (GAF) Evidence in Disability Adjudication" (effective July 22, 2013).
The GAF is unlike most other opinion evidence we evaluate because it is a rating. However, as with other opinion evidence, a GAF needs supporting evidence to be given much weight. By itself, the GAF cannot be used to "raise" or "lower" someone's level of function. The GAF is only a snapshot opinion about the level of functioning. It is one opinion that we consider with all the evidence about a person's functioning. Unless the clinician clearly explains the reasons behind his or her GAF rating, and the period to which the rating applies, it does not provide a reliable longitudinal picture of the claimant's mental functioning for a disability analysis.
Plaintiff argues that the ALJ's failure to consider the GAF score of 50 that Dr. Wiley assessed at her initial evaluation created reversible error because AM-13066 explicitly requires that ALJs consider GAF scores. [ECF No. 10 at 36-37]. The court recently considered and rejected Plaintiff's argument in Woodbury v. Colvin, 213 F. Supp. 3d 773, 781-83 (D.S.C. 2016). After explaining that courts in the Fourth Circuit had provided different interpretations of the effect of AM-13066, the court concluded that "courts in this district have required the ALJ to consider a claimant's GAF scores as evidence, but have not required that the ALJ "explicitly reference" every GAF score. Id., citing Johnson v. Colvin, No. 6:14-3579, 2016 WL 462430, at *7 (D.S.C. Feb. 8, 2016); Gordon v. Colvin, No. 1:15-3736, 2016 WL 4578342, at *19 (D.S.C. Aug. 3, 2016). It further noted that most courts within the Fourth Circuit that had considered the issue had adopted a "moderate approach" that neither required ALJs to consider every GAF score in the record, nor permitted them to completely ignore GAF scores. The court concluded that the proper inquiry was "whether the ALJ's analysis reveals consideration of the GAF scores, either directly or indirectly." Id. at 782; see also Massey v. Colvin, No. 1:13-965, 2015 WL 3827574, at *5 (M.D.N.C. Jun. 19, 2015) ("[R]eversal on the grounds that the ALJ failed to consider a GAF score 'is particularly inappropriate where the ALJ fully evaluated the record and treatment notes upon which the GAF scores were based,'" citing Clemins v. Astrue, No. 5:13-CV-47, 2014 WL 4093424, at *1 (W.D.Va. Aug. 18, 2014).
Although the ALJ did not specifically reference the GAF score of 50 that Dr. D. Wiley assessed when she initially evaluated Plaintiff, it is clear from his decision that he indirectly considered it. The ALJ noted that "within one month of starting medication in October 2013, [Plaintiff] reported a significant improvement in symptoms (Ex 23F/5)." Tr. at 24. Thus, he recognized that Dr. D. Wiley had assessed Plaintiff's symptoms as severe during her initial evaluation in September 2013. He noted that Dr. D. Wiley's subsequent records consistently indicated Plaintiff had normal mental status examinations with euthymic mood and appropriate affect. Id. He specified that he had considered Dr. Wiley's treatment records at Exhibit 23F and 29F in restricting Plaintiff to one to two step tasks. Tr. at 25. Because the ALJ provided an adequate explanation to support his conclusion that Plaintiff's mental status improved after his initial presentation to Dr. D. Wiley, he did not err in failing to explicitly address the single GAF score. See Fowler v. Astrue, No. 1:10-123, 2011 WL 5974279, at *3 (W.D.N.C. Nov. 29, 2011) ("[A] single GAF score is of questionable evidentiary value at best. This is all the more true where, as here, there is no evidence that the severity of Plaintiff's condition at the time the GAF was measured continued on an ongoing basis."); see also Shelton v. Astrue, No. 2:11-639, 2012 WL 3525643, at *9 (S.D.W.Va. Aug. 14, 2012) (holding the ALJ did not err in failing to discuss a single GAF score because it was "neither probative nor determinative in the analysis of Plaintiff's mental impairment"); Cygan v. Commissioner, Social Sec. Admin., No. SAG-11-2447, 2013 WL 1788220, at *2 (D.Md. Apr. 25, 2013) (finding that the ALJ's failure to evaluate an assigned GAF score did not warrant remand).
b. Dr. Norris's Opinion
Dr. Norris completed a medical questionnaire on September 5, 2014. Tr. at 586. She stated Plaintiff's diagnoses included osteoarthritis of the spine, chronic lower back pain, diabetes mellitus, and apnea. Id. She indicated Plaintiff's conditions caused pain and limited his use of his upper extremities. Id. She stated Plaintiff could engage in frequent bilateral fine manipulation; rare bilateral gross manipulation; rare pushing and pulling; and no overhead work. Id. She indicated Plaintiff could lift a total of 20 pounds and was capable of lifting 20 pounds with each upper extremity. Id.
Plaintiff argues the ALJ did not cite adequate reasons for rejecting portions of Dr. Norris's opinion. [ECF No. 10 at 34]. She maintains that substantial evidence does not support the ALJ's finding that Dr. Norris's opinion was "internally consistent." Id. at 35.
The Commissioner argues that substantial evidence supports the ALJ's finding that Plaintiff could perform frequent handling. [ECF No. 11 at 10-11]. She maintains that the ALJ identified an inconsistency between Dr. Norris's finding that Plaintiff could lift 20 pounds, but could only rarely handle objects. Id. She noted that the ALJ found that the medical findings were insignificant following Plaintiff's carpal tunnel release surgery and that he was "merely limited to 'no heavy lifting or grasping.'" Id. at 11. She further contends that the treatment records supported the ALJ's finding. Id. at 11-12.
The ALJ stated he had given some weight to Dr. Norris's opinion. Tr. at 25. He indicated he had considered Dr. Norris's indication that Plaintiff could lift and carry 20 pounds in restricting him to light work. Id. He stated he had "given little weight to the other portions of her opinion in which she assesses the claimant with manipulative limitations." Id. He found that Dr. Norris's statement was "internally inconsistent as she states that the claimant can rarely handle but can lift up to 20 pounds." Id.
Because Dr. Norris was Plaintiff's treating physician, her opinion was presumptively entitled to controlling weight. The ALJ found that Dr. Norris's opinion was internally inconsistent because she indicated Plaintiff was capable of lifting up to 20 pounds, but could rarely handle. Tr. at 25. The ALJ's perception of internal inconsistency in Dr. Norris's statement appears to be based on an interpretive error. The ALJ found that the lifting restriction Dr. Norris imposed was consistent with light work. See id. Light work is defined in 20 C.F.R. § 404.1567(b), as involving lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds and requiring either a good deal of walking or standing or sitting most of the time with some pushing and pulling of arm or leg controls. While Dr. Norris's assessment that Plaintiff had the ability to lift 20 pounds was consistent with the upper lifting limit for light work, it was not wholly consistent with a maximum sustained work capacity for light work because it did not address the other physical demands of light work. Compare id., with Tr. 586. If Dr. Norris had actually opined that Plaintiff could perform light work or had suggested that he was capable of frequently lifting or carrying objects weighing up to 10 pounds or occasionally carrying objects weighing up to 20 pounds, the ALJ could have reasonably concluded that portion of her opinion was inconsistent with her indication that he could only rarely engage in gross manipulation. However, in the absence of any indication from Dr. Norris as to the frequency with which Plaintiff could lift 20 pounds, her opinion was not internally inconsistent. Thus, the ALJ did not provide an adequate explanation for his decision not to accord controlling weight to the treating physician's opinion.
The undersigned notes that Plaintiff indicated in a function report that he sometimes fed his pets. Tr. at 222. If, for example, Plaintiff were able to lift a 20-pound bag of dog food from a closet, fill his dog's bowl, and lift the bag back into the closet twice a day, his ability to lift the dog food bag for such brief periods would not be inherently consistent with an ability to meet all of the exertional demands of light work.
In addition, the ALJ's evaluation of Dr. Norris's opinion does not reflect adequate consideration of the relevant factors in 20 C.F.R. § 404.1527(c). Although the ALJ acknowledged that a treatment relationship existed between Plaintiff and Dr. Norris (Tr. at 24), his decision does not reflect any consideration of the frequency and length of the treatment relationship. See 20 C.F.R. § 404.1527(c)(2). It does not indicate he considered whether Dr. Norris's opinion was supported by her own treatment notes and observations. See 20 C.F.R. § 404.1527(c)(3). The ALJ presumably concluded that Dr. Norris's opinion about Plaintiff's reaching and handling abilities were inconsistent with the record. See Tr. at 24 (indicating he had restricted Plaintiff to frequent overhead reaching in consideration of his right shoulder arthritis and to frequent bilateral handling based on his history of bilateral carpal tunnel release and post-operative findings that restricted him to no heavy lifting or grasping). Id. However, it does not appear that he considered the entire record in evaluating the consistency of Dr. Norris's opinion. The ALJ did not consider the consistency of Dr. Norris's opinion with Plaintiff's diagnosis of neuropathy. See Tr. at 521 and 591. He ignored documentation of Plaintiff's complaints of upper extremity pain in multiple treatment records after his carpal tunnel release surgery. See Tr. at 454, 457, 534, 538, 551, 573, 578, 632, 637, 683, and 687. He also neglected to consider whether Dr. Norris's opinion was consistent with Dr. Rubel's findings during multiple examinations of reduced reflexes in Plaintiff's biceps and triceps, decreased sensation in his bilateral upper extremities, tenderness over his neck and shoulder girdle and in his bilateral upper extremities, and reduced strength in his bilateral upper extremities. See Tr. at 516-18, 529-30, 535-36, 539-41, 545-46, and 579-80.
In light of the foregoing, the undersigned is constrained to find that the ALJ did not evaluate and weigh Dr. Norris's opinion in accordance with the relevant regulations and SSRs and did not give good reasons for his decision to accord it little weight. III. Conclusion and Recommendation
The court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported as a matter of fact and law. Based on the foregoing, the court cannot determine that the Commissioner's decision is supported by substantial evidence. Therefore, the undersigned recommends, pursuant to the power of the court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in Social Security actions under sentence four of 42 U.S.C. § 405(g), that this matter be reversed and remanded for further administrative proceedings.
IT IS SO RECOMMENDED. July 14, 2017
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).