Opinion
C. A. 1:23-cv-55-MGL-SVH
07-17-2023
Jamison R.,[1] Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Shiva V. Hodges, United States Magistrate Judge
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 § i383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying his claims for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). 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 affirmed.
I. Relevant Background
A. Procedural History
On January 30, 2020, Plaintiff protectively filed applications for DIB and SSI in which he alleged his disability began on May 9, 2018. Tr. at Tr. at 119, 120, 259-62, 263-74. His applications were denied initially and upon reconsideration. Tr. at 171-74, 177-80, 181-84. On November 10, 2021, Plaintiff had a hearing by telephone before Administrative Law Judge (“ALJ”) Colin Fritz. Tr. at 36-58 (Hr'g Tr.). The ALJ issued an unfavorable decision on March 28, 2022, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 12-35. 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 1-6. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on January 6, 2023. [ECF No. 1].
B. Plaintiff's Background and Medical History
1. Background
Plaintiff was 47 years old at the time of the hearing. Tr. at 40. He completed high school. Id. His past relevant work (“PRW”) was as a lubrication servicer, a dye feeder, and a color matcher. Tr. at 52. He alleges he has been unable to work since May 9, 2018. Tr. at 259.
2. Medical History
On July 11, 2018, Plaintiff presented to physician assistant Brian Johnson (“PA Johnson”) with complaints of muscle wasting in his right hand and pain, numbness, and tingling in his bilateral hands that sometimes extended into his right shoulder. Tr. at 435. He indicated he often dropped items. Id. He said hand splints had provided some relief, but Baclofen, Prednisone, Morphine, and Gabapentin had been ineffective. Id. PA Johnson observed right interosseous muscle wasting, slightly decreased grip strength and decent oppositional strength in the bilateral hands, positive Tinel's signs in the bilateral elbows and wrists, grossly intact sensation, and intact motor strength to the deltoids, biceps, triceps, and wrist flexion and extension bilaterally. Id. He interpreted an electromyography (“EMG”) and nerve conduction studies (“NCS”) of Plaintiff's upper extremities as showing bilateral ulnar nerve entrapment at his elbows and bilateral carpal tunnel syndrome (“CTS”) that was worse on the right. Id. He noted a neurologist had scheduled Plaintiff for magnetic resonance imaging (“MRI”) of his brain and cervical spine. Id. He assessed upper extremity weakness and instructed Plaintiff to follow up after the MRIs. Id.
On July 20, 2018, an MRI of Plaintiff's brain was essentially normal. Tr. at 606-07. An MRI of his cervical spine showed multilevel degenerative disc disease (“DDD”) and facet arthropathy with no significant disc bulge, herniation, or spinal stenosis. Tr. at 611-12. It indicated neural foraminal stenosis ranging from mild to moderate degrees at ¶ 3-4, C5-6, and C6-7 on the right and C4-5 on the left. Id.
Plaintiff returned to PA Johnson on July 24, 2018. Tr. at 428. After reviewing the MRI of Plaintiff's cervical spine, PA Johnson noted specific areas of concern at ¶ 6-7 and C7-T1. Id. He assessed upper extremity weakness, bilateral CTS, and ulnar nerve entrapment. Id.
Plaintiff complained of bilateral hand numbness, tingling, and weakness and bilateral shoulder pain on July 26, 2018. Tr. at 420. PA Johnson noted neurological surgeon Aaron Curtis MacDonald, M.D. (“Dr. MacDonald”), felt results of the MRI of Plaintiff's cervical spine and the EMG of his upper extremities did not explain his right arm weakness and atrophy. Id. PA Johnson again observed Plaintiff to demonstrate right interosseous muscle wasting, slightly decreased grip and decent opposition strength in the bilateral hands, positive Tinel's signs in the bilateral elbows and wrists, grossly intact sensation, and intact motor strength. Tr. at 421. He assessed upper extremity weakness, bilateral CTS, ulnar nerve entrapment, cervical stenosis of the spinal canal, and cervical radiculopathy and recommended further evaluation with computed tomography (“CT”) myelogram. Tr. at 420.
Plaintiff's complaints and PA Johnson's findings on August 13, 2018, were consistent with prior exams. Tr. at 412-13. PA Johnson indicated the CT myelogram of Plaintiff's cervical spine showed questionable extra-dural filling defects at ¶ 5-6 that were more pronounced on the right. Tr. at 412 He noted Dr. MacDonald was concerned about a possible double-crush issue. Id. He stated there was no evidence to support cervical radiculopathy at ¶ 6, C7, or C8. Id. He ordered repeat EMG and NCS of the upper extremities and indicated Plaintiff should return after the tests were completed to discuss possible surgical intervention. Id.
Plaintiff presented to Dr. MacDonald on August 28, 2018. Tr. at 405. Dr. MacDonald noted the most recent EMG showed severe right ulnar neuropathy with slowing of the conduction velocity across Plaintiff's elbow and denervated changes in the ulnar innervated forearm muscles, but no evidence of cervical radiculopathy or CTS. Id. He assessed right hand weakness and ulnar nerve entrapment at the right elbow and scheduled Plaintiff for ulnar nerve transposition surgery. Id.
Plaintiff underwent ulnar nerve transposition surgery to the right elbow on September 21, 2018. Tr. at 399. He returned to PA Johnson for a postsurgical visit on October 31, 2018. Tr. at 399. PA Johnson described Plaintiff as doing quite well with improvement of discomfort and minor, but tolerable, numbness and tingling. Id. He observed Plaintiff's wrist and grip strength were intact and his wound was well-healed. Id. He recommended Plaintiff gradually increase his activities. Id.
Plaintiff complained of bilateral lower back pain on November 1, 2018. Tr. at 604. He indicated the pain was most noticeable upon lying down in his bed and waking. Id. He described pain with bending, sitting, and stooping and indicated it was exacerbated by increased activity. Id. He described intermittent pain down his right side and intermittent and progressive weakness in his lower extremity. Id. Robert Allman, M.D. (“Dr. Allman”), recorded normal findings on physical exam. Tr. at 605. He reviewed an old MRI and NCS from 2015 that showed some interruptions in the nerve signal. Tr. at 604. He assessed right-sided sciatica and right foot-drop and ordered new EMG and NCS. Id.
Plaintiff complained of sinus and respiratory symptoms, headache, and right shoulder swelling on December 13, 2018. Tr. at 599-600. He indicated he had developed shoulder pain and tightness one week prior, after lying on his back while working on his car. Tr. at 600. Dr. Allman observed mucosal edema and rhinorrhea and frontal sinus tenderness. Id. He assessed acute, non-recurrent maxillary sinusitis and right shoulder muscle strain. Tr. at 599. He prescribed Lofibra and Augmentin for sinusitis and recommended Plaintiff rest, use ice, hydrate, and use nonsteroidal anti-inflammatory drugs (“NSAIDs”) for his shoulder. Id.
On June 14, 2019, Plaintiff complained of pain and swelling in his left thumb joint that prevented him from extending it. Tr. at 597. He indicated he had first noticed the pain in March and it had initially improved, but subsequently worsened. Id. Plaintiff described pain in his right ring finger, general loss of grip strength, and his fingers being stuck in a flexed position. Tr. at 598. Dr. Allman recorded normal findings on physical exam. Tr. at 598. He assessed chronic pain of the left thumb and acquired trigger finger of the right ring finger. Tr. at 597. He prescribed Prednisone and recommended icing, stretching, and NSAIDs. Id.
On July 16, 2019, Plaintiff reported mild pain in his thoracic spine that had gradually improved over the prior week. Tr. at 595. He said the pain was worse during the night and caused morning stiffness. Id. Plaintiff complained of mild, intermittent pain in his left hand he first noticed more than one week prior. Id. He endorsed urinary urgency that necessitated he get up four times during the night. Id. Dr. Allman recorded normal findings on physical exam. Tr. at 595-96. He assessed urinary urgency, right foot drop, chronic left thumb pain, and acute bilateral thoracic back pain. Tr. at 594. He ordered an MRI of Plaintiff's lumbar spine and recommended he continue to stretch and use ice and NSAIDs. Id.
On July 26, 2019, an MRI of Plaintiff's lumbar spine showed moderately-severe DDD at ¶ 3-4 and L4-5, broad-based disc bulges at ¶ 3-4 and L4-5, and left lateral disc protrusion at ¶ 3-4, but no definite neural element compromise. Tr. at 468-69.
On August 1, 2019, Plaintiff complained of left shoulder and shoulder blade pain that had begun one week prior and had progressively worsened, chronic lower back pain, and a scaly, itchy rash on his thigh. Tr. at 586-87. He endorsed good range of motion (“ROM”) and denied left shoulder weakness. Tr. at 587. Dr. Allman observed positive empty can, Neer test, and Hawkins/Kennedy tests. Id. He assessed acute left shoulder pain, skin rash, and right foot drop. Tr. at 586. He prescribed Prednisone and Triamcinolone cream and referred Plaintiff to a neurosurgeon. Id.
Plaintiff complained of lumbar pain, right leg pain, right foot drop, and urinary urgency with incontinence on August 7, 2019. Tr. at 393. He described numbness in his toes upon waking that resolved upon standing and heaviness in his legs that had waxed and waned over a four-month period. Id. He said his left foot would give out on him suddenly, causing inability to raise his toes from the ground. Id. PA Johnson observed Plaintiff to have normal gait, perform heel and toe walking without difficulty, have scattered sensation to pinprick in the right lower leg and foot, and demonstrate 5/5 motor strength in the upper and lower extremities. Tr. at 393-94. He reviewed the MRI of Plaintiff's lumbar spine, assessed right foot drop, and referred Plaintiff to a neurosurgeon. Tr. at 393.
On August 21, 2019, Plaintiff reported his symptoms were not severe enough for him to consider proceeding with surgical intervention. Tr. at 386. PA Johnson indicated Plaintiff's conclusion was “quite reasonable” and encouraged him to follow up if he noticed increased difficulty with his right foot function or changes in symptoms. Id. He recorded normal findings on physical exam. Tr. at 386-87.
Dr. Allman performed arthrocentesis of the left subacromial bursa on September 24, 2019. Tr. at 584-85.
On November 6, 2019, X-rays of Plaintiff's left shoulder showed mild-to-moderate osteoarthritis of the acromioclavicular joint. Tr. at 542. Plaintiff reported his left lateral shoulder pain had not reduced his ROM or strength over the prior month. Tr. at 549. Orthopedic surgeon Andrew Steiner, M.D. (“Dr. Steiner”), observed Plaintiff to demonstrate full active ROM of the left shoulder in all planes, 5/5 rotator cuff function, moderate tenderness to palpation of the lateral shoulder at the subacromial space, positive Hawkins/Kennedy test, and mild-to-moderate osteoarthritis of the acromioclavicular joint. Id. He assessed left shoulder impingement, ordered physical therapy, and prescribed Mobic. Id. He indicated he would consider an injection if Plaintiff's pain had not improved in six weeks and an MRI if it failed to improve thereafter. Id.
On December 10, 2019, Plaintiff reported his left shoulder pain had significantly improved with physical therapy, although he continued to have a little pain that was worse at night. Tr. at 528. Nurse practitioner Tara Evans observed active ROM of Plaintiff's left shoulder in all planes, 5/5 motor function of the rotator cuff in all planes, no tenderness to palpation of the shoulder, and negative Neer and Hawkins/Kennedy tests. Tr. at 530. She assessed impingement syndrome of the left shoulder, held off on administering injections, and instructed Plaintiff to continue physical therapy. Tr. at 530-31.
On February 20, 2020, Plaintiff described feeling angry upon waking, being “on edge,” not resting well, and not wanting to leave his house over the prior month due to “general fear.” Tr. at 581. He reported chronic back pain, pain radiating down the back of his right leg, and intermittent numbness and tingling. Tr. at 582. Dr. Allman recorded normal findings on physical exam, including no appreciable weakness. Tr. at 582-83. He assessed generalized anxiety disorder (“GAD”) and spinal stenosis of the lumbar region. Tr. at 581. He discontinued Celexa, prescribed Cymbalta, and referred Plaintiff to psychiatry. Id.
On March 16, 2020, Plaintiff reported progressive, longstanding anxiety due to situational stressors. Tr. at 451. He described vague, persistent anxiousness, irritability, feeling on edge, muscle tension, insomnia, and reduced concentration. Id. He complained of dull, achy lower back pain and intermittent right lower extremity pain. Id. He stated he was experiencing increased stressors due to conflict with his daughter and difficulty adjusting to being unemployed. Id. He admitted he used a halfgram of cannabis daily. Id. He endorsed increased guilt and denied depressed mood, anhedonia, low energy, decreased appetite, and feelings of hopeless, helplessness, and worthlessness. Id. Psychiatrist Ralph McKenzie, D.O. (“Dr. McKenzie”), observed Plaintiff to be alert and oriented times three and to demonstrate good eye contact, good rapport, no involuntary motor movements, no psychomotor agitation or retardation, normal rate, rhythm, volume, and tone of speech, linear, logical, and goal-directed thought processes, no suicidal or homicidal ideation, no auditory or visual hallucinations, no obsessions, no compulsions, no paranoia, no ruminations, no fixed delusional system, anxious mood, euthymic affect, grossly intact short- and long-term memory, preserved impulse control, preserved insight, and fair judgment. Tr. at 452. He assessed GAD, chronic pain, and insomnia, increased Cymbalta to 60 mg daily, prescribed Trazodone, and advised cannabis cessation. Id.
On March 31, 2020, Plaintiff reported improved sleep and less severe anxiety, except in social situations. Tr. at 449. He complained of refractory low blood pressure, situational stress related to parenting, and residual reduced concentration and nervousness. Id. He indicated he had been attempting to decrease his cannabis use. Id. Dr. McKenzie recorded normal findings on mental status exam (“MSE”). Id. He assessed GAD, chronic pain, and insomnia and continued Cymbalta and Trazodone. Tr. at 449-50.
During a telehealth visit on April 28, 2020, Plaintiff reported persistent anxiety, irritability, nervousness, and breakthrough pain that prompted him to increase his cannabis use. Tr. at 447. He endorsed significant social anxiety and indicated he was working to resolve conflict with his daughter. Id. Dr. McKenzie noted normal findings on MSE, aside from more anxious mood. Id. He assessed GAD, chronic pain, and insomnia, prescribed Nicotine gum, and continued Cymbalta and Trazodone. Tr. at 448.
Plaintiff participated in counseling sessions with licensed professional counselor Stephanie Zeiser (“Counselor Zeiser”) from May 6, 2020, through December 1, 2021. Tr. at 444-46, 622, 625-27, 632-34, 637-39, 642-54, 64850, 653-54, 657-58, 661-64, 667-68, 671-74, 677, 679-80, 682-83, 685-86. After the first few sessions, Counselor Zeiser generally met with Plaintiff monthly and recorded normal observations as to his mental status. See id.
On May 26, 2020, Plaintiff reported situational stressors of chronic pain, cannabis use, and a history of childhood sexual trauma. Tr. at 442. He described mild, intermittent anxiety, irritability, and reduced concentration and noted he had been using redirection strategies, journaling, and reducing his cannabis use. Id. Dr. McKenzie recorded normal findings on MSE. Id. He continued Trazodone and Cymbalta and encouraged Plaintiff to reduce his cannabis use. Tr. at 443.
On June 9, 2020, state agency psychological consultant Craig Horn, Ph.D. (“Dr. Horn”), reviewed the record and completed a psychiatric review technique (“PRT”). Tr. at 96-97. He considered Listing 12.06 for anxiety and obsessive-compulsive disorders and found Plaintiff had no difficulty understanding, remembering, or applying information, mild difficulty adapting or managing oneself, and moderate difficulties interacting with others and concentrating, persisting, or maintaining pace. Id. Dr. Horn also completed a mental residual functional capacity (“RFC”) assessment in which he assessed Plaintiff as being moderately limited with respect to his abilities to: carry out detailed instructions; maintain attention and concentration for extended periods; work in coordination with or proximity to others without being distracted by them; interact appropriately with the general public; and get along with coworkers or peers without distracting them or exhibiting behavior extremes. Tr. at 101-03. Psychological consultant Larry Clanton, Ph.D., reviewed the evidence and assessed the same mental RFC assessment as Dr. Horn at the reconsideration level. Compare Tr. at 101-03, with Tr. at 137-40.
On June 15, 2020, state agency medical consultant Christopher Gates, M.D. (“Dr. Gates”), assessed Plaintiff's physical RFC as follows: occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds; stand and/or walk for a total of about six hours in an eight-hour workday; sit for a total of about six hours in an eight-hour workday; occasionally climb ramps and stairs, stoop, kneel, crouch, and crawl; frequently balance; never climb ladders, ropes, or scaffolds; frequently engage in fine manipulation with the bilateral upper extremities; and avoid concentrated exposure to extreme cold, extreme heat, noise, vibration, hazards, fumes, odors, dusts, gases, and poor ventilation. Tr. at 98-101. A second state agency medical consultant, Adrian Corlette, M.D., reviewed the evidence and assessed the same physical RFC as Dr. Gates at the reconsideration level. Compare Tr. at 98-101, with Tr. at 131-36.
Plaintiff reported chronic pain, taking steps to repair a strained relationship with his daughter, and intermittent cannabis use on July 7, 2020. Tr. at 684. He indicated he was communicating more effectively with his family, using faith and journaling to deal with his emotions, reducing use of cannabis, and felt less anxiety, reduced worry, and improved insomnia. Id. He noted he had enjoyed a recent family vacation. Id. Dr. McKenzie continued Cymbalta, Trazodone, and an N-Acetyl Cysteine supplement and advised Plaintiff to reduce his cannabis use. Id.
Plaintiff reported worsened right upper extremity muscle wasting and little improvement with physical therapy on July 21, 2020. Tr. at 579. Dr. Allman indicated his concern over Plaintiff's progressing symptoms and for potential worsening neuropathy versus a nerve disorder. Id. He assessed muscle atrophy of the right upper arm, neuropathy, and paresthesia of the skin and planned to refer Plaintiff to a neurologist. Tr. at 578. He provided a medical opinion statement. Tr. at 455.
On July 31, 2020, Plaintiff complained of situational stressors of refractory pain and adjusting to being away from work and at home more often. Tr. at 681. He described occasional anxious and jittery feelings, but indicated they were manageable. Id. He stated he was comfortable on his medication regimen, and Dr. McKenzie continued it. Id.
Plaintiff denied anxiety symptoms and reported sleeping well and feeling comfortable on his medication regimen on August 28, 2020. Tr. at 678. Dr. McKenzie continued Plaintiff's medications. Id.
On September 11, 2020, Plaintiff reported more frequent, but not daily, bright-red blood in his stools. Tr. at 575. He denied associated pain and hard stools. Id. Dr. Allman noted an anal fissure, but no mass, tenderness, or internal or external hemorrhoids. Tr. at 576. He assessed blood in the stool and prescribed a suppository. Tr. at 575. He advised Plaintiff to hydrate, increase his fiber intake, and use a stool softener. Id.
Plaintiff indicated his medications continued to be effective on September 25, 2020. Tr. at 675. He said he was able to manage his occasional anxiety. Id. He admitted to occasional cannabis use. Id. Dr. McKenzie continued Plaintiff on the same course of treatment. Tr. at 676.
On November 9, 2020, Plaintiff endorsed occasional depressive symptoms, anxiety, and worry, but noted he could manage his symptoms as he was better able to identify triggers and implement behavioral strategies. Tr. at 669. Dr. McKenzie recorded normal findings on MSE and continued Plaintiff on the same course of treatment. Id.
Plaintiff endorsed some depressive symptoms on December 9, 2020, but indicated he was sleeping well and using breathing techniques and mentalization to reduce intermittent anxiety and frustration. Tr. at 665. He admitted to occasional cannabis use. Id. He indicated his medications remained effective, and Dr. McKenzie continued them. Id.
On December 29, 2020, Plaintiff presented to Stephen Smith, M.D. (“Dr. Smith”), for a consultative medical exam. Tr. at 460-65. He described anxiety with fear of being around people, constant pain in his lower back that was exacerbated by standing or sitting for extended periods and lifting, occasional radiating pain to the upper part of his right lower extremity, loss of muscle and decreased strength in his right hand, difficulty opening jars and using screwdrivers, and little control over his right fifth digit. Tr. at 460. He endorsed abilities to dress and feed himself, sit for up to 40 minutes without difficulty, walk for about 40 minutes at a normal pace, stand for up to 20 minutes without difficulty, lift up to 40 pounds, drive as necessary, and perform household chores including laundry, dishes, walking animals, and minor cleaning. Tr. at 460-61. Dr. Smith observed Plaintiff ambulate without difficulty, require no assistive device for ambulation, and get on and off the exam table and up and out of a chair without difficulty. Tr. at 461. He recorded the following additional findings: normal hearing and speech; 20/20 visual acuity with glasses; 5/5 grip strength bilaterally with good fine and gross manipulative skills; no swelling, deformity, tenderness to palpation, or loss of ROM in the interphalangeal or metacarpophalangeal joints; a small decrease in interosseous strength in the right hand; full ROM of the shoulders, elbows, and wrists; full ROM of the lumbar spine to flexion, extension, and lateral flexion; full ROM of the cervical spine to flexion, extension, lateral flexion, and rotation; 2+ dorsalis pedis and radial pulses; no evidence of lower extremity edema, cyanosis, or clubbing; mildly-decreased left knee flexion to 120/150 degrees; normal ROM of the hips and ankles; negative seated and supine straight-leg raising tests; 5/5 muscle strength in all proximal muscle groups; no atrophy; ability to squat and perform heel and toe walk without much difficulty; positive Phalen's test in the right hand; negative Phalen's test in the left hand; negative Tinel's sign in both hands; a little difficult with fine motor skills; normal mentation; good personal hygiene; normal affect; ability to follow simple directions; preserved deep tendon reflexes; and no sensory deficits. Tr. at 461-62. He wrote: “Overall, the patient performed the exam fairly well. I do not want to discount his medical problems, but overall, he performed the exam without limitations.” Tr. at 462.
Plaintiff reported feeling less anxious and having reduced frustration on February 2, 2021. Tr. at 659. He endorsed stable mood and less reactivity and denied recent, significant depressive symptoms. Id. Dr. McKenzie indicated normal MSE findings and continued Plaintiff's medications. Id.
On March 30, 2021, Plaintiff reported he was sleeping well, working to cope with occasional anxiety and frustration, and better identifying and regulating responses to emotional triggers. Tr. at 655. He said he continued to enjoy doing yardwork and tasks around his house. Id. Dr. McKenzie recorded normal findings on MSE and continued Plaintiff on the same medications. Id.
On April 12, 2021, Plaintiff reported his right shoulder pain had returned one week prior. Tr. at 572. He described spasms and constant pain and indicated he had been stretching and performing therapy exercises. Id. Dr. Allman noted positive Hawkins/Kennedy test, but otherwise normal findings on physical exam. Tr. at 573. He assessed chronic right shoulder pain and prescribed Cyclobenzaprine and Prednisone. Tr. at 572.
On May 25, 2021, Dr. Allman assessed essential hypertension, GAD, and mixed hyperlipidemia and refilled Lisinopril. Tr. at 569-71. He recorded normal findings on physical exam. Tr. at 570-71.
On May 26, 2021, Plaintiff informed Dr. McKenzie that his medications allowed him to have better days, as he was less anxious and frustrated and better able to manage his emotions. Tr. at 651. Dr. McKenzie indicated normal MSE findings and continued Plaintiff's medications. Id.
On July 23, 2021, Plaintiff reported grief related to the recent death of a granddaughter, whose umbilical cord wrapped around her neck during her birth. Tr. at 646. He endorsed occasional depressive symptoms and tearful episodes, but indicated his medication remained effective, his symptoms were manageable, and he continued to find comfort in faith, prayer, and meditation. Id. Dr. McKenzie recorded normal findings on MSE and maintained Plaintiff on the same medications. Id.
Plaintiff complained of right knee pain on August 9, 2021. Tr. at 566. He described hearing a pop while walking on the beach and having subsequent pain in his posterior knee, weakness in his quadriceps, swelling in his knee, and pain with ambulation. Tr. at 567. Plaintiff also reported heat intolerance with excessive sweating, dizziness, and fatigue. Id. He complained of a burning sensation in his right shoulder that had failed to improve. Id. Dr. Allman noted signs of muscle wasting in Plaintiff's right shoulder. Tr. at 566. He assessed chronic right shoulder pain, acute right knee pain, heat intolerance, essential hypertension, and cervical radiculopathy. Id. He continued Motrin and Cymbalta, instructed Plaintiff to hydrate and continue elevating and icing his right knee, and ordered an MRI of his cervical spine. Id.
On August 24, 2021, an MRI of Plaintiff's cervical spine revealed multilevel cervical spondylosis that was most pronounced at ¶ 5-6 with no severe canal or foraminal stenosis and diffuse, nonspecific T1 hypointense marrow signal. Tr. at 466-67. The study showed similar to slightly-progressed spondylosis as compared to the July 2018 MRI. Id.
Plaintiff reported coping better with his grief symptoms, continued mood stability, and no significant anxiety on August 26, 2021. Tr. at 640. He indicated he had not used tobacco products in five days. Id. Dr. McKenzie recorded normal findings on MSE and continued Plaintiff on the same medication regimen. Id.
On September 23, 2021, Plaintiff reported good sleep and improvement on medication, despite recent anxiety and frustration related to the COVID-19 pandemic. Tr. at 635. Dr. McKenzie recorded normal findings on MSE and continued Plaintiff's medications. Id.
On October 21, 2021, Plaintiff noted less anxiety, reduced frustration, and stable emotions on his current medication regimen. Tr. at 630. He reported a few migraines, but indicated they were improving overall. Id. Dr. McKenzie recorded normal findings on MSE and continued Plaintiff on the same medication routine. Id.
On November 18, 2021, Plaintiff reported sleeping well, reduced anxiety, and being better able to handle stressful triggers and cope with his anxiety. Tr. at 628. Dr. McKenzie recorded normal findings on MSE and continued Plaintiff on the same medication course. Id.
On December 16, 2021, Plaintiff reported doing “good,” being better able to cope emotionally, sleeping well, and having stable symptoms on his current medication regimen. Tr. at 623. Dr. McKenzie recorded normal findings on MSE and continued Plaintiff's medications. Id.
Plaintiff reported feeling fine, being better able to handle his anxiety symptoms, and being comfortable with his medication regimen on January 13, 2022. Tr. at 621. Dr. McKenzie observed Plaintiff to be alert and oriented times three and to demonstrate good eye contact, good rapport, no involuntary motor movements, no psychomotor agitation or retardation, normal speech, linear, logical, and goal-directed thought process, no suicidal or homicidal ideation, no auditory or visual hallucinations, no obsessions, no compulsions, no paranoia, no ruminations, no fixed delusions, intact short-and long-term memory, no internal preoccupation, euthymic mood, and fair judgment. Id. He continued Plaintiff's medications. Id.
C. The Administrative Proceedings
1. The Administrative Hearing
a. Plaintiff's Testimony
At the hearing, Plaintiff testified he lived in a house with his wife, his mother, his oldest daughter, his daughter's son, and his daughter's fiancee. Tr. at 41. He indicated he had several inside cats and two or three dogs. Id. He said he had a valid driver's license. Id.
Plaintiff stated problems with shoulder pain interrupted his sleep. Tr. at 42. He said he had muscle wasting in his right hand and muscle loss in his upper torso. Id. He testified he had sciatic nerve pain that was aggravated by stooping and bending over. Id. He indicated he had a “fuzzy feeling” in his right forefinger and thumb. Id. He said he had been diagnosed with GAD that caused significant mood swings at times. Id.
Plaintiff testified he had difficulty screwing on a jar or an oil filter, had no wrist or hand strength, and could not work on cars as he had done in the past. Tr. at 43. He said his left hand was “a little bit different,” as he could not lift his fingers as well, felt tight, and could not lift as much weight, but continued to have some strength. Tr. at 43-44. He estimated he could lift about 15 pounds on the right. Tr. at 44. He indicated he could sit for an hour to an hour-and-a-half. Id. He said he could stand in one place for 15 to 20 minutes at a time and walk for 30 minutes to an hour. Tr. at 45. He stated he experienced fatigue that necessitated he lie down after engaging in a strenuous task for 15 to 20 minutes. Id. He indicated he slept for two to three hours during a typical day. Id. He said he usually went to bed between 6:00 and 7:00 P.M. Id. He stated he propped up his feet to reduce pressure on his sciatic nerve while sitting in a chair. Tr. at 46. He testified he used cannabis for pain relief because it was the only thing that allowed him to “be functional.” Tr. at 47. He said he had previously used Oxycodone and Morphine for pain relief, but they had increased his mood problems and caused him to sleep all the time. Id. He indicated he was seeing a psychiatrist and a therapist and had improved ability to manage his thoughts Tr. at 4748. He stated he had some problems focusing and enjoying things. Tr. at 48.
Plaintiff said he had worked for six weeks at Xpress Lube in 2020. Tr. at 49. He indicated he was absent from work several days over the six-week period due to his anxiety, anger, and pain. Tr. at 49-50. He said he had tried to help his employer “some” in 2021, but eventually told him he could not be a dependable employee. Tr. at 50.
Wage records show reported earnings for Plaintiff from Xpress Lube of Clemson Incorporated of $1,368 for the second quarter of 2020, $1,763 for the third quarter of 2020, $29 for the fourth quarter of 2020, and $197 for the second quarter of 2021. Tr. at 285.
Plaintiff described constant pressure and pain in his right shoulder joint. Id. He stated he occasionally had problems with his left shoulder, as well. Id.
b. Vocational Expert Testimony
Vocational Expert (“VE”) William Crunk, Ph.D., reviewed the record and testified at the hearing. Tr. at 51-57. The VE categorized Plaintiff's PRW as a lubrication servicer, Dictionary of Occupational Titles (“DOT”) No. 915.687-018, requiring medium exertion and a specific vocational preparation (“SVP”) of 4, a dye feeder, DOT No. 582.582-010, requiring medium exertion per the DOT and heavy exertion as described by Plaintiff and an SVP of 4, and a color matcher, DOT No. 550.381-010, requiring medium exertion and an SVP of 5. Tr. at 52. The ALJ described a hypothetical individual of Plaintiff's vocational profile who could, over the course of an eight-hour workday in two hour increments, perform work at the light exertional level, as defined in the rules and regulations, except that combined standing and walking could be performed for a total of four of eight hours and sitting could be performed for six of eight hours; could occasionally use foot controls on the right; could never climb ladders, ropes, or scaffolds; could occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; could frequently perform bilateral reaching, handling, and fingering; could occasionally be exposed to vibrations and hazards associated with unprotected, dangerous machinery or unprotected heights; could concentrate, persist, and maintain pace sufficient to understand, remember, and carry out unskilled, routine tasks in a low-stress work environment, defined as being free of fast-paced or dependent production requirements; could make simple, work-related decisions, use occasional independent judgment skills, and handle occasional workplace changes; would be largely isolated from the general public and deal with data and things, rather than people; would complete job duties independent of coworkers, but not in physical isolation; and could respond appropriately to supervision. Tr. at 52-54. The VE testified the hypothetical individual would be unable to perform Plaintiff's PRW. Tr. at 54. The ALJ asked whether there were any other jobs that the hypothetical person could perform. Id. The VE identified jobs at the light exertional level with an SVP of 2 as a routing clerk, DOT No. 222.687-022, a bakery worker, DOT No. 524.687-022, and marker/labeler, DOT No. 209.587-034, with 20,000, 22,000, and 19,000 positions available nationally, respectively. Id. He indicated he had reduced the number of available jobs based on the reduced standing and walking indicated in the RFC assessment. Tr. at 54-55.
For a second hypothetical question, the ALJ asked the VE to consider the restrictions in the first question and to further consider that the individual would be able to maintain sufficient concentration, persistence, and pace for 75% of the workday, but would be off-task for 25% of the workday beyond customary breaks and would be absent from work an average of three or more days per month. Tr. at 55. He asked if the individual could perform any jobs given the additional restrictions. Id. The VE testified there would be no work in the national economy. Id. He clarified that either of the restrictions would preclude employment. Id.
The ALJ asked the VE if his testimony as to reduced standing and walking at the light exertional level, different categories of climbing, definitions of low-stress work, social interactive demands of work, time off-task, and absenteeism were directly addressed in the DOT or its companion publications. Tr. at 55-56. The VE stated the DOT did not specially outline those factors, but he had based his testimony on his 45 years of experience in vocational rehabilitation, his observation of jobs, conversations with managers and supervisors, and research studies in the vocational field. Tr. at 56. He clarified that his testimony did not conflict with the DOT and that he was supplementing the information contained therein. Id.
Plaintiff's attorney asked the VE to consider that the individual would have to rest, away from the workstation, for more than an hour during the workday. Tr. at 57. He asked if there would be any competitive employment available. Id. The VE testified there would be no jobs. Id.
Plaintiff's counsel asked the VE to separately assume the hypothetical individual would be limited to sedentary work, but could sit for less than six hours in an eight-hour workday. Id. He asked if there would be any jobs available. Id. The VE testified there would be no jobs at the sedentary exertional level. Id.
Plaintiff's counsel asked the VE to consider that the individual would be limited to sedentary work requiring occasional fingering and handling with the right, dominant upper extremity and frequent handling and fingering with the left upper extremity. Id. He asked if the individual would be able to engage in any competitive employment. Id. The VE stated he would not. Id.
2. The ALJ's Findings
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, 2021.
2. The claimant has not engaged in substantial gainful activity since May 9, 2018, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: spine disorder, right knee degenerative joint disease with peroneal neuropathy, status-post left knee arthroplasty, left shoulder impingement, bilateral carpal tunnel and ulnar nerve entrapment, obesity, and anxiety (20 CFR 404.1520(c) and 416.920(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b)
except that standing and walking combined can be performed for 4 hours out of an 8-hour workday; sitting can still be performed for 6 hours out of an 8-hour workday, and the use of foot controls is limited to occasional on the right within the exertional level. He can never climb ladders, ropes and scaffolds; and can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl. Bilateral reaching, handling, and fingering can be performed frequently within the exertional level. The claimant can occasionally be exposed to vibrations, and hazards associated with unprotected dangerous machinery or unprotected heights. He can concentrate, persist and maintain pace sufficient to understand, remember and carry out unskilled, routine tasks in a low stress work environment (defined as being free of fast-paced or team-dependent production requirements), involving simple work-related decisions, occasional independent judgment skills and occasional workplace changes. He is limited to the performance of jobs where he is largely isolated from the general public, dealing with data and things rather than people; can perform jobs where the work duties can be completed independently from coworkers; however, physical isolation is not required. He can respond appropriately to supervision.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on April 12, 1974 and was 44 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
8. The claimant has at least a high school education (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disability because applying the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled,” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969a).
11. The claimant has not been under a disability, as defined in the Social Security Act, from May 9, 2018, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).Tr. at 17-30.
II. Discussion
Plaintiff alleges the Commissioner erred in evaluating his treating medical provider's opinion.
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, 416.920. 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), 416.920(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, 416.925. 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), 416.920(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, 416.926; 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), 416.920(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), 416.920(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 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
On July 21, 2020, Dr. Allman provided a medical opinion statement. Tr. at 455. He stated he had treated Plaintiff since February 12, 2018, and was very familiar with his condition. Id. He noted Plaintiff had ongoing neurological deficits to his right lower extremity and back, generalized neuropathy, probable CTS, probable cubital tunnel disease, right foot drop, right hand weakness, numbness, and tingling, and cervical degenerative disease resulting in diffuse neural foraminal stenosis of the cervical spine at multiple levels. Id. He identified signs and symptoms that included intermittent foot drop, intermittent neurological defects, numbness, tingling, muscle wasting, weakness, and spells of blurred vision. Id. He stated Plaintiff's symptoms suggested a diagnosis of multiple sclerosis, but that he could not definitively diagnose the condition because it was difficult to diagnose in its early stages. Id. He further noted Plaintiff had sleep apnea and had struggled to effectively use a continuous positive airway pressure (“CPAP”) machine. Id. He indicated Plaintiff's impairments were confirmed by CT scan of his cervical spine, cervical myelogram, MRI of the cervical spine, myelogram of the lumbar spine, and NCS of the upper and lower extremities. Id. He further represented he had observed Plaintiff's consistent physical signs and symptoms during office visits. Id. He opined that Plaintiff would not be able to sit, stand, or remain still for an extended period of time and would need to rest for more than one hour during an eight-hour period. Id. He stated Plaintiff's pain made it nearly impossible for him to focus, concentrate, and remain on task and his psychological impairments made it difficult for him to reliably concentrate. Id. He indicated Plaintiff's problems made it difficult for him to sustain attention and concentration to task. Id. He explained that Plaintiff's medical records included “occasional ‘normal findings' that [were] the result of computer-generated records that d[id] not accurately reflect his condition, usually by doctors who were not treating him for the condition addressed.” Id.
Plaintiff claims the ALJ unreasonably found Dr. Allman's opinion was not persuasive. [ECF No. 10 at 29]. He argues the ALJ did not adequately explain how he considered the supportability and consistency factors in evaluating Dr. Allman's opinion. Id. at 29-30; [ECF No. 12 at 1-2]. He maintains the ALJ's reference to “normal” findings in discounting Dr. Allman's opinion is undermined by his inclusion of mental functional limitations in the RFC assessment. [ECF No. 10 at 30]. He further submits the ALJ cherrypicked the record in referencing the “normal” findings. Id. at 31. He contends the ALJ erred in relying on the conservative nature of Dr. Allman's treatment because not every condition is amenable to surgery and Dr. Allman noted his symptoms suggested a possible diagnosis of multiple sclerosis. Id. at 31-32. He indicates the AL J provided only a general conclusory finding as to inconsistency between Dr. Allman's opinion and the other evidence of record. Id. at 32. He claims the new regulations do not excuse the ALJ's burden to explain his reasons for discounting a medical opinion. [ECF No. 12 at 2]. He points out that the court may not rely on the Commissioner's post hoc rationale to supplement the ALJ's insufficient explanation. Id. at 3-4.
The Commissioner argues the ALJ evaluated Dr. Allman's opinion under the appropriate regulatory framework and substantial evidence supports his conclusion. [ECF No. 11 at 10-15]. He maintains the ALJ found Dr. Allman's opinion unpersuasive because it was not consistent with and supported in the record. Id. at 12. He notes the ALJ referenced Dr. Allman's unremarkable MSE and physical exam findings, some positive physical findings as to Plaintiff's shoulder impingement, and his conservative treatment for shoulder impingement. Id. at 13. He further indicates the ALJ cited inconsistency between Dr. Allman's opinion and the orthopedic and mental health specialists' impressions. Id.
Under the applicable regulations, ALJs are directed to consider the following factors in evaluating medical opinions: (1) supportability; (2) consistency; (3) relationship with the claimant; (4) specialization; and (5) other factors that tend to support or contradict the medical opinion. 20 C.F.R. §§ 404.1520c(b), (c), 416.920c(b), (c). However, the regulations only require that ALJs explicitly discuss their evaluations of the supportability and consistency factors, as these factors are considered most important in assessing the persuasiveness of a medical source's opinion. 20 C.F.R. §§ 404.1520c(a), (b)(2), 416.920c(a), (b)(2). In evaluating the supportability factor, the ALJ should consider a medical opinion more persuasive based on “the more relevant . . . objective medical evidence and supporting explanations” the medical source provides. 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1). The ALJ's assessment of the consistency factor requires he consider a medical source's opinion more persuasive if it is consistent “with the evidence from other medical sources and nonmedical sources in the claim.” 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2).
Although ALJs have discretion in evaluating the persuasiveness of medical opinions, substantial evidence must support their conclusions as to the supportability and consistency of those opinions. If an ALJ materially errs in evaluating these factors, the court may remand the case. See Flattery v. Commissioner of Social Security Administration, C/A No. 9:20-2600-RBH-MHC, 2021 WL 5181567, at *8 (D.S.C. Oct. 21, 2021), (concluding substantial evidence did not support the ALJ's evaluation of the supportability factor where he ignored the claimant's continuing treatment with the medical provider and portions of the provider's treatment notes), adopted by 2021 WL 5180236 (Nov. 8, 2021); Joseph M. v. Kijakazi, C/A No. 1:20-3664-DCC-SVH, 2021 WL 3868122, at *13 (D.S.C. Aug. 19, 2021) (finding the ALJ erred in assessing a medical opinion pursuant to 20 C.F.R. § 404.1520c and § 416.920c because he misconstrued the date the plaintiff last saw the medical provider, neglected the continuing treatment relationship, and erroneously claimed the last treatment visit was prior to the plaintiff's alleged onset date), adopted by 2021 WL 3860638 (Aug. 30, 2021).
The ALJ must consider the cumulative record in evaluating the supportability and consistency of the medical opinions. “[A]n ALJ has the obligation to consider all relevant evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding.” Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017) (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)). However, “[w]hile the Commissioner's decision must ‘contain a statement of the case, in understandable language, setting forth a discussion of the evidence, and stating the Commissioner's determination and the reason or reasons upon which it is based,' 42 U.S.C. § 405(b)(1), ‘there is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision,'” Reid v. Commissioner of Social Sec., 769 F.3d 861, 865 (4th Cir. 2014) (quoting Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (per curiam)).
The ALJ addressed Dr. Allman's opinion as follows:
The undersigned has considered the medical opinion from the claimant's primary care provider, Robert Allman, M.D., but finds it not persuasive (B3F). The severity of Dr. Allman's opinions are not supported by his own treatment reports. For example, Dr. Allman notes that the claimant's generalized anxiety disorder is stable in August 2021 and reports normal findings on mental status examination (B9F/10, 12, 14, 21, 24, 29, 37, 39, 41, 46). Dr. Allman may note a few positive findings on physical examination relating to the claimant's shoulder impingement, but his treatment of the claimant's impairments has remained conservative, through physical therapy referral, medication, ice, or one injection in the claimant's left shoulder. Moreover, his opinion is not consistent with the longitudinal record, in particular findings from treatment by orthopedic specialists and mental health specialists.Tr. at 27-28.
The undersigned has considered only the explanation set forth in the ALJ's decision and rejects Plaintiff's argument that the ALJ cherrypicked the record in finding Dr. Allman's opinion was not persuasive. Plaintiff references no specific, persuasive evidence the ALJ neglected. A review of the ALJ's decision reflects his consideration of objective signs and symptoms that somewhat supported Plaintiff's allegations, as well as normal findings. The ALJ credited the positive signs and symptoms and explained his reasons for concluding the cumulative record did not support the extent of limitations Plaintiff and Dr. Allman suggested.
In examining the supportability of the indicated mental restrictions in Dr. Allman's records, the ALJ acknowledged that Dr. Allman had initially diagnosed GAD and treated Plaintiff with medications and had subsequently referred Plaintiff to a specialist after he reported increased anxiety symptoms, anger, and irritability. Tr. at 25. The evidence supports the ALJ's conclusion that Dr. Allman's opinion was not supported by his later records that showed stable symptoms and normal MSE findings. Tr. at 27.
Plaintiff's reliance on High v. Colvin, C/A No. 7:15-cv-153, 2016 WL 5372788, at *3-4 (E.D. N.C. Sept. 26, 2016), is misplaced because, unlike the ALJ in that case, this ALJ explained his reasons for including certain limitations and excluding others, despite indications of stable symptoms and normal findings on MSE. Earlier in the decision, the ALJ noted that Plaintiff “remained able to interact with others one-on-one” and “was able to function in public, as he [was] able to drive a car, go to the store if necessary, and attend doctors' appointments,” despite his social anxiety. Tr. at 21. He referenced Plaintiff's ability “to perform a variety of simple tasks, such as preparing simple meals, light household chores, laundry, mowing the grass, playing video games, and reading,” despite his allegations of difficulty concentrating and performing complex tasks due to anxiety. Id. He wrote:
[T]he undersigned has considered the claimant's reported symptoms of social anxiety as well as difficulty concentrating and completing tasks due to anxiety as well as the objective clinical
findings in the longitudinal record in finding that the claimant's anxiety results in moderate limitations interacting with others and concentrating, persisting, or maintaining pace. The claimant's moderate limitation interacting with others has been considered in limiting him to the performance of jobs where he is largely isolated from the general public, dealing with data and things rather than people, jobs where work duties can be completed independently from coworkers, but physical isolation is not required. The claimant is also able to respond appropriately to supervision. The claimant's moderate limitation in concentrating, persisting, or maintaining pace supports the residual functional capacity's limitation to understand, remember and carry out unskilled, routine tasks in a low stress work environment (defined as being free of fast-paced or teamdependent production requirements), involving simple work-related decisions, occasional independent judgment skills and occasional workplace changes.Tr. at 26. He further stated: “The added complications of pain, fatigue, and side effects of medication” had been “accommodated within the limitations of unskilled, routine tasks and occasional hazard exposure.” Id.
The ALJ acknowledged Dr. Allman's records provided some support for restrictions imposed by Plaintiff's shoulder impairment, but that they did not indicate his physical impairments were as functionally-limiting as Dr. Allman opined. He cited Plaintiff's August 2021 complaint of pain and swelling in his right knee, but noted it improved “after conservative treatment with ice and elevation.” Tr. at 23. He wrote:
The claimant reported that he hurt his right shoulder in December 2018 while working on an alternator (B9F/40). The claimant's primary care provider noted atrophy of the muscle of the right arm with pain and weakness in July 2020 (B9F/19). The claimant attempted physical therapy without improvement and
was referred to neurology (B9F/19). In April 2021, the claimant's primary care provider noted a positive Hawkins-Kennedy test and painful arc, but otherwise normal range of motion of the neck (B9F/14). He was prescribed a muscle relaxer and steroid, as well as continued physical therapy exercises, but continued to report burning in the shoulder upon return in August 2021 (B9F/8).Tr. at 24. He noted the following as to Plaintiff's left shoulder:
Findings on physical examination in August 2019, noted good range of motion with no weakness, but some positive signs of impingement, including a positive empty can test, and positive Neer and Hawkins-Kennedy tests (B9F/28).Tr. at 25. However, he discussed subsequent treatment and indications of improvement. See id.
The ALJ did not rely exclusively on the conservative nature of the treatment Dr. Allman provided, but also on Plaintiff's indications of improvement as to some impairments and a lack of objective findings of limitations as to others. The ALJ did not err in evaluating the supportability factor based on Dr. Allman's conservative treatment in combination with this other evidence.
While Plaintiff points out Dr. Allman indicated his symptoms might be explained by a potential diagnosis of multiple sclerosis, this explanation appears only in Dr. Allman's opinion statement. Therefore, the ALJ would have found no support for it in Dr. Allman's treatment notes.
Viewed in isolation, the ALJ's conclusion as to the consistency factor appears conclusory and inadequate, but a review of the decision as a whole provides support. In discussing the evidence earlier in the decision, the ALJ referenced findings from Drs. MacDonald and Steiner and PA Johnson, the orthopedic specialists, and Dr. McKenzie and Counselor Zeiser, the mental health specialists, and explained why their impressions suggested Plaintiff was not as limited as Dr. Allman indicated.
The ALJ explained:
[F]indings on physical examination throughout the longitudinal record are generally normal, including intact pulses, normal range of motion of the neck, normal range of motion of the extremities, 5/5 motor power in upper and lower extremities, normal coordination, 2+ reflexes, no pathological reflexes, able to heel and toe walk without difficulty, and a normal gait (B1F/7-8, 15, 27, 34, 42, 49-50), with only occasional positive findings of scattered pinprick sensation in right lower leg and foot (B1F/8, 15).
Moreover, in August 2019 the claimant reported waxing and waning symptoms of right foot dorsiflexion weakness, but findings noted 5/5 motor power in the bilateral lower extremities, able to heel and toe walk without difficulty, 2+ and symmetric reflexes, and normal gait, with scattered pinprick sensation in the right lower leg and foot (B1F/7-8). The claimant told the provider that his symptoms were not that severe and that he did not wish to proceed with surgical intervention (B1F/7).Tr. at 23. He wrote: “The longitudinal record also notes that the claimant underwent a left total knee arthroplasty in 2012, with no ongoing treatment for the left knee noted after the alleged onset date (B1F/28).” Id. He recognized Plaintiff underwent right ulnar nerve transposition in September 2018, after Dr. MacDonald and PA Johnson noted significant findings on EMG and physical exam of the upper extremities, but “[p]ostoperatively, the claimant was noted to be doing quite well, with some minor numbness and tingling, but 90% of his previous pain gone, a well-healed wound, and intact wrist and grip strength (B1F/20, 22).” Tr. at 24.
He discussed Dr. Steiner's observations as to Plaintiff's left shoulder, noting:
However, after conservative treatment, including a steroid injection, physical therapy, and medication, the claimant reported significant improvement in his left shoulder pain, and only used Mobic as needed for pain (B8F/4). X-ray imaging of the left shoulder in November 2019 showed mild to moderate osteoarthritis of the acromioclavicular joint (B8F/18). Findings on physical examination noted active range of motion in all planes, rotator motor function 5/5 in all planes, no tenderness throughout the shoulder, negative Neer and Hawkins test, intact distal neurovascular status, and intact pulses (B8F/6). The claimant's orthopedic specialist noted that an additional steroid injection was not required due to the claimant's great improvement (B8F/6-7).Tr. at 25.
After discussing evidence of Plaintiff's physical impairments from Dr. Allman and the specialists, the ALJ explained:
The combined effect of the claimant's cervical spine disorder, left shoulder impingement, bilateral carpal tunnel syndrome, and ulnar nerve entrapment has been considered in limiting the claimant to work at the light exertional level with no climbing of ladders, ropes, and scaffolds, occasional crawling, frequent bilateral reaching, handling, and fingering within the exertional level, occasional exposure to vibrations, and occasional exposure to hazards associated with unprotected dangerous machinery or unprotected heights.Id.
The ALJ noted Plaintiff had initiated outpatient medication management and counseling with Dr. McKenzie and Counselor Zeiser in March 2020 and explained:
Although mental status examinations during outpatient treatment initially noted an anxious mood, otherwise findings were normal, including good eye contact, good rapport, euthymic affect, no involuntary motor movements, no psychomotor agitation or retardation noted, normal speech, normal thought process, no suicidal or homicidal ideations, no auditory or visual hallucinations, no obsessions, compulsions, paranoia, ruminations, or fixed delusions, intact attention and concentration throughout, grossly intact short- and long-term memory, does not appear to be internally preoccupied, preserved insight, preserved impulse control, and fair judgment (B2F/8, 10, 13).
In May 2020, the claimant stated that he felt like treatment was helping, with only some mild intermittent anxiety and irritability, resulting in reduced concentration, but no insomnia (B2F/3). The claimant reported that he was taking medication as prescribed and experienced no side effects, but continued to smoke cigarettes and use cannabis daily (B2F/3, 4, 8). In December 2020, the claimant reported that he was stable on his current regimen, was comfortable with his medication with no side effects, and felt better able to handle his anxious symptoms and cope emotionally (B10F/7). Reported findings on mental status examination were normal and stable (B10F/7, 9, 14, 16, 21, 26, 32, 37, 45).
Findings on mental status examination during counseling sessions in 2021 are similarly normal, with the claimant reporting progress in all areas of his goals (B10F/11, 12, 18-19, 23-24, 28-29, 30-31, 33, 34-35, 39-40, 43-44, 47-48, 49-50). Otherwise, findings on mental status examination throughout the longitudinal record from primary care providers and
specialists are normal, including normal mood and affect, normal behavior, and normal judgment and thought content (B1F/8, 15, 27, 34, 42, 50; B9F/12, 24, 29, 37, 39, 41, 46).Tr. at 25-26.
The ALJ's decision reflects his consideration of the persuasiveness of Dr. Allman's opinion in light of the factors in 20 C.F.R. § 404.1520c and § 416.920c and his articulation of his conclusions as to its supportability and consistency. In light of the foregoing, the undersigned recommends the court find substantial evidence supports the ALJ's conclusion that Dr. Allman's opinion was not persuasive.
III. Conclusion and Recommendation
The court's function is not to substitute its own judgment for that of the Commissioner, but to determine whether her decision is supported as a matter of fact and law. Based on the foregoing, the undersigned recommends the Commissioner's decision be affirmed.
IT IS SO RECOMMENDED.
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).