Opinion
C/A 1:22-cv-4205-JD-SVH
08-24-2023
Jodie S.,[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 § 1383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying her 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 April 28, 2019, Plaintiff protectively filed an application for DIB in which she alleged her disability began on March 20, 2019. Tr. at 88, 204-07. Her application was denied initially and upon reconsideration. Tr. at 94-94, 99-102. On April 6, 2022, Plaintiff had a hearing before Administrative Law Judge (“ALJ”) James Cumbie. Tr. at 38-64 (Hr'g Tr.). The ALJ issued an unfavorable decision on May 31, 2022, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 12-37. 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 November 22, 2022. [ECF No. 1].
B. Plaintiff's Background and Medical History
1. Background
Plaintiff was 62 years old at the time of the hearing. Tr. at 15, 65. She completed an associate degree. Tr. at 618. Her past relevant work (“PRW”) was as a project director. Tr. at 60. She alleges she has been unable to work since March 20, 2019. Tr. at 204.
2. Medical History
Plaintiff underwent anterior lumbar interbody fusion at L 5-S1 on November 16, 2015. Tr. at 395.
On October 31, 2016, magnetic resonance imaging (“MRI”) of Plaintiff's lumbar spine showed status-post posterior fusion with laminectomy, post-surgical changes, and interbody spacer at L 5-S1; mild-to-moderate degenerative changes to the lower lumbar spine; and a 6.5 mm suspected synovial cyst anterior medial to the right facet, protruding into the right lateral recess at L 4-5, and resulting in mild mass effect upon the right L5 descending nerve root. Tr. at 399-400.
Plaintiff underwent implantation and programming of a spinal cord stimulator (“SCS”) on December 7, 2017. Tr. at 402-03.
On April 3, 2018, an MRI of Plaintiff's lumbar spine showed isthmic spondylolisthesis at L 5-S1, status-post fusion, with no complications identified, and multilevel lumbar spondylosis. Tr. at 425.
Plaintiff presented to internal medicine physician Hilary James Evans, M.D. (“Dr. Evans”), on February 11, 2019. Tr. at 470. She reported working in a high-stress job and feeling “panicky.” Id. She endorsed arthralgia, myalgia, and nervousness/anxiousness on a review of systems. Tr. at 471. Dr. Evans noted Plaintiff was overweight, but otherwise documented normal findings on exam. Tr. at 472. He assessed low back pain due to displacement of intervertebral disc, mixed hyperlipidemia, and anxious depression, prescribed Xanax 0.5 mg daily as needed for panic attacks, and continued Pravachol for hyperlipidemia and Cymbalta 30 mg for anxious depression. Tr. at 472-73.
Plaintiff presented to physical medicine and rehabilitation specialist Anthony DiNicola, M.D. (“Dr. DiNicola”), on March 19, 2019. Tr. at 497. She reported no relief from recent right L3-4 and L4-5 transforaminal epidural steroid injections (“TESI”) and described pain in her right lower back that radiated into the right lower extremity (“RLE”). Id. She indicated a right greater trochanteric bursa injection had helped with lateral hip pain. Id. She noted Tramadol provided good relief, but sometimes failed to last for 12 hours. Id. She complained it was getting more difficult for her to do her job, as sitting all day worsened her pain. Id. She rated her pain as a six on a 10-point scale. Id. She endorsed back pain, joint pain, muscle aches, stiffness, loss of strength, muscle weakness, poor balance, and depression on a review of systems. Tr. at 498. Dr. DiNicola observed normal gait, pain with lumbar flexion and extension, positive straight-leg raise (“SLR”), greater on the left than the right, positive lumbar facet maneuvers, 5/5 strength in the bilateral lower extremities (“BLE”), and tenderness to palpation (“TTP”) over the battery from the SCS, the right greater trochanter, and the right mid-to-lower lumbar facet joint line. Tr. at 499. He assessed lumbar radiculopathy status-post L5-S1 fusion, lumbar degenerative disc disease (“DDD”), lumbar spondylosis, and right greater trochanteric bursitis. Id. He ordered a computed tomography (“CT”) myelogram for further evaluation of Plaintiff's worsening symptoms, encouraged Plaintiff to continue a home exercise program, increased Tramadol to 50 mg three times a day, prescribed Lyrica 50 mg with a plan to titrate it up to three times a day, and continued Cymbalta. Tr. at 500.
Plaintiff underwent lumbar myelogram on March 26, 2019, that showed postsurgical changes at L 4-5, an SCS entering the thoracic spine, and mild impressions on the thecal sac, suggestive of mild disc bulges. Tr. at 457. A CT scan of Plaintiff's lumbar spine indicated right foraminal stenosis at L 5-S1, possibly representing epidural scar; an unremarkable anterior lumbar interbody fusion at L 5-S1 with fusion across the disc space and intact hardware; mild central canal stenosis at L 3-4 related to a diffuse bulging disc; and spondylosis at L 4-5 without evidence of central canal or foraminal stenosis. Tr. at 458.
On April 16, 2019, Plaintiff reported significant RLE pain, despite using an SCS. Tr. at 492. She indicated she could not sit for even short periods. Id. She rated her pain as a six. Id. On a review of systems, she endorsed back pain, joint pain, muscle aches, stiffness, loss of strength, muscle weakness, poor balance, and depression. Tr. at 493. Dr. DiNicola observed normal gait, pain with lumbar flexion and extension, positive SLR, greater on the left than the right, positive lumbar facet maneuvers, TTP over the SCS battery, the right greater trochanter, and the mid-to-lower lumbar facet joint line, and 5/5 strength in the BLE. Tr. at 494. He assessed lumbar radiculopathy status-post L5-S1 fusion, lumbar DDD, lumbar spondylosis, and right greater trochanteric bursitis. Tr. at 495. He indicated he would complete paperwork for short- and long-term disability, as Plaintiff could not work even at a sedentary job at the time. Id. He ordered a right L5-S1 TESI, refilled Lyrica 50 mg three times a day, and continued Tramadol as needed. Id.
Dr. DiNicola administered a right L5-S1 TESI on May 8, 2019. Tr. at 515.
On June 7, 2019, Plaintiff reported the TESI had provided greater than 30% relief of her back and leg pain. Tr. at 519. She indicated she continued to take Tramadol 50 mg up to three times a day with good benefit, although it was not lasting the full eight hours between doses. Id. She rated her pain as a six. Id. She endorsed back pain, joint pain, muscle aches, stiffness, loss of strength, muscle weakness, poor balance, and depression on a review of systems. Tr. at 520. Dr. DiNicola noted normal gait, pain with lumbar flexion and extension, positive SLR, greater on the left than right, positive lumbar facet maneuvers, TTP over the SCS battery, right greater trochanter, and right mid-to-lower lumbar facet joint line, and 5/5 BLE strength. Tr. at 521. He increased Tramadol to one to two tablets twice a day as needed for pain, prescribed Celebrex 200 mg daily, and refilled Robaxin and Lyrica. Tr. at 522.
On July 9, 2019, state agency psychological consultant Xanthia Harkness, Ph.D., reviewed the record and completed a psychiatric review technique, noting symptoms consistent with listings 12.04 for depressive, bipolar, and related disorders and 12.06 for anxiety and obsessive-compulsive disorders. Tr. at 69-70. She found Plaintiff had mental impairments that caused no limits to her work-related functions. Tr. at 70. A second state agency psychological consultant, Rebekah Jackson, Ph.D., reached the same conclusion on September 6, 2019. Compare Tr. at 69-70, with Tr. at 82-83.
On July 31, 2019, state agency medical consultant William Crosby, M.D., assessed Plaintiff's physical residual functional capacity (“RFC”) as follows: occasionally lift and/or carry 10 pounds; frequently lift and/or carry less than 10 pounds; stand and/or walk for a total of two hours; sit for about six hours in an eight-hour workday; never climb ladders, ropes, or scaffolds; occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; and avoid concentrated exposure to hazards. Tr. at 71-73. State agency medical consultant Adrian Corlette, M.D., assessed the same physical RFC on September 6, 2019. Compare Tr. at 71-73, with Tr. at 83-86.
On August 14, 2019, Plaintiff reported she had stopped working and was applying for disability benefits due to chronic pain. Tr. at 526. She endorsed fatigue, back pain, gait problem, and myalgias. Tr. at 527. Dr. Evans recorded normal findings on exam, aside from obesity. Tr. at 528. He continued Pravachol for mixed hyperlipidemia, noted Plaintiff felt symptoms of anxious depression were adequately controlled on her medications, and indicated she had low back pain due to displacement of intervertebral disc. Id.
On September 5, 2019, Plaintiff complained of increased right lower back pain that was exacerbated by prolonged standing and walking and changing positions. Tr. at 545. She rated her pain as a six and indicated she had been using Tramadol three to four times a day. Id. She denied side effects from medications. Id. She endorsed back pain, joint pain, muscle aches, stiffness, loss of strength, muscle weakness, poor balance, and depression on a review of systems. Tr. at 546. Dr. DiNicola recorded observations consistent with his prior exams. Tr. at 547. He increased Lyrica to 75 mg three times a day, refilled Tramadol and Robaxin, issued Plaintiff a handicap placard, and indicated he would schedule her for right L2 through L4 medial branch blocks (“MBB”) and possible radiofrequency ablation (“RFA”). Tr. at 548. He noted: “She does have difficulties with ambulation due to her ongoing back and lower extremity pain, history of lumbar fusion, and chronic radiculopathy.” Id.
Dr. DiNicola administered MBB at Plaintiff's right L2, L3, and L4 levels on September 16, 2019, and RFA at her right L2, L3, and L4 levels on October 29, 2019. Tr. at 539, 542.
On December 5, 2019, Plaintiff reported excellent relief from rightsided back pain following the RFA. Tr. at 533. However, she complained of increased lower back pain just below the waist that she rated as a seven. Id. She noted this pain had failed to respond to sacroiliac (“SI”) joint injections in the past. Id. She indicated Tramadol had been less effective. Id. Physician assistant Katherine Brooks (“PA Brooks”) observed normal gait, pain with lumbar flexion and extension, positive SLR, greater on the left than the right, positive lumbar facet maneuvers, 5/5 strength, and TTP over the SCS battery, right greater trochanter, and right mid-to-lower facet joint line. Tr. at 535-36. She added Butrans 10 mcg patches every seven days and Voltaren gel up to three times a day and refilled Tramadol, Lyrica, and Robaxin. Tr. at 536. She indicated they would consider a right SI joint injection and indicated Plaintiff should continue a home exercise program and use of the SCS. Id.
On January 30, 2020, Plaintiff reported good relief with the Butrans patches, although they did not last the full seven days. Tr. at 601. She indicated she continued to use Tramadol three to four times a day for breakthrough pain, but was using it less than she had prior to the Butrans patches. Id. She requested to restart Celebrex for arthritic pain. Id. She complained of pain in her right posterior hip and declined an SI joint injection. Id. She also endorsed instability and weakness in her legs with prolonged walking and inquired about a device to aid in stability. Id. She rated her pain as a seven. Id. She reported the following on a review of systems: back pain; joint pain; muscle aches; stiffness; loss of strength; muscle weakness; poor balance; and depression. Tr. at 603. Dr. DiNicola noted normal gait, pain with lumbar flexion and extension, positive SLR, greater on the left than the right, positive lumbar facet maneuvers, 5/5 strength in the BLE, positive FABER test on the right, pain with right SI joint compression, positive Gaenslen's test on the right, and TTP over the SCS battery, right greater trochanter, right mid-to-lower lumbar facet joint line, and right posterior superior iliac spine (“PSIS”). Tr. at 603-04. He ordered a single-prong cane to aid Plaintiff's stability, increased the Butrans patches to 15 mcg, restarted Celebrex 200 mg, and refilled Tramadol, Lyrica, and Robaxin. Id.
Dr. DiNicola administered a right intra-articular SI joint injection on February 11, 2020. Tr. at 598.
Dr. Evans provided a medical opinion statement on February 12, 2020. Tr. at 552. He explained he was Plaintiff's primary care physician and noted she had “some serious musculoskeletal and neurological problems, primarily but not exclusively stemming from her long-standing, serious back condition” that were being treated by Dr. DiNicola. Id. He stated that “[s]ince Dr. Nicola [was] treating her for those problems,” he “often d[id] not examine for them, make findings about them, or make comments about them.” Id. However, he indicated his “lack of findings should not be construed to suggest that those conditions do not exist” or “that they aren't serious.” Id. He also indicated Plaintiff “ha[d] some psychological conditions that [were] most probably related, to a certain extent, to her resulting chronic pain.” Id.
Plaintiff complained of pain in her left posterior shoulder and biceps on March 4, 2020. Tr. at 607. She endorsed fatigue, back pain, gait problems, and myalgias. Tr. at 608. Dr. Evans wrote: “She has chronic debilitating pain, ambulates with difficulty with a cane and has had several spine procedures including a nerve stimulator that has been marginally helpful. It is my opinion that she is permanently and irreversibly disabled on the basis of her lumbar spine disease.” Tr. at 607. He further indicated Plaintiff was on low-dose Cymbalta due to anxiety “[e]xacerbated by her chronic pain.” Id. Dr. Evans observed tenderness to Plaintiff's lower back, decreased range of motion (“ROM”) of her back, abnormal gait, and limited abduction of Plaintiff's left shoulder. Tr. at 609-10. He continued Pravachol for mixed hyperlipidemia and refilled Xanax for anxious depression. Tr. at 609. He wrote: “As mentioned above, I believe she is permanently and irreversibly disabled from any profession secondary to chronic back pain, chronic sedating medication as well as limitations in ambulation.” Id. He referred Plaintiff to an orthopedist for evaluation of her left shoulder. Tr. at 610.
Plaintiff presented to orthopedic surgeon Michael P. Hoenig, M.D. (“Dr. Hoenig”), for evaluation of her left shoulder on March 24, 2020. Tr. at 589. She described constant, mild pain with occasional sharp exacerbations with abduction, forward elevation over shoulder height, reaching behind her back, and holding up her arm. Id. She also endorsed occasional numbness and tingling in her right hand. Id. Dr. Hoenig observed mild scoliosis in Plaintiff's neck that caused her left shoulder to be a little higher than her right. Tr. at 592. He also noted reduced ROM in Plaintiff's left shoulder with discomfort at end ranges, painful resisted forward elevation, mild pain with impingement maneuvers, and no real TTP. Id. He reviewed x-rays that showed a type-2 acromion and a well-maintained acromioclavicular (“AC”) joint. Id. He assessed left shoulder bursitis with mild adhesive capsulitis, prescribed a Medrol Dosepak, and referred Plaintiff to physical therapy. Id.
Plaintiff participated in eight physical therapy sessions for left shoulder pain between April 7 and April 30, 2020. Tr. at 558-60, 568-69, 574-87.
Plaintiff reported improvement in her left shoulder pain and increased ROM on April 24, 2020. Tr. at 570. Dr. Hoenig noted the following findings as to the left shoulder: full ROM; a little bit of tenderness at the AC joint; excellent rotator cuff strength; a little bit of pain with resisted forward elevation; some mild diffuse tenderness about the anterior aspect of the shoulder; no crepitus; and neurovascularly intact. Tr. at 573. He assessed left shoulder bursitis with mild adhesive capsulitis and indicated Plaintiff might benefit from a cortisone injection. Id.
On April 30, 2020, Plaintiff reported the intra-articular SI joint injection provided 60% relief to her posterior right hip. Tr. at 561. However, she indicated she had noticed pain returning on the right that was comparable to the pain she had been experiencing on the left for three-to-four months. Id. She rated her pain as a seven. Id. She expressed an interest in additional bilateral SI joint injections. Id. She endorsed little benefit from home exercises, but excellent benefit with the increased Butrans dose and continued use of one to two Tramadol twice a day for breakthrough pain. Id. She was concerned that Celebrex was causing swelling to her RLE and indicated she was only taking it as needed. Id. She endorsed the following on a review of systems: back pain; joint pain; loss of strength; muscle weakness and stiffness; poor balance; tingling; neurological weakness; anxiety; depression; and seasonal allergies. Tr. at 563. Dr. DiNicola noted antalgic gait and use of a cane. Tr. at 563. He refilled Butrans patches, Tramadol, Lyrica, Robaxin, and Celebrex and scheduled Plaintiff for bilateral intraarticular SI joint injections. Tr. at 564.
A physical therapy discharge note dated April 30, 2020, reflects Plaintiff's report that her shoulder was doing much better with pain ranging from a three to a four. Tr. at 558. She continued to have slightly reduced left shoulder flexion and abduction at 140 and 128 degrees, respectively. Id. Her left shoulder strength was mildly reduced with 4+/5 flexion strength, 4/5 abduction strength, and 4+/5 internal rotation strength. Tr. at 558-59. She had 4/5 abduction strength in her right shoulder, but otherwise normal findings on the right. Id. Plaintiff met three of five goals for treatment, and physical therapy assistant Dana Barton assessed a 19% impairment to her left shoulder. Tr. at 559.
Dr. DiNicola administered intra-articular injections to Plaintiff's bilateral SI joints on May 13, 2020. Tr. at 555.
On July 23, 2020, Plaintiff reported good pain relief from the SI joint injections, but indicated she had fallen twice. Tr. at 654. She said she considered Lyrica beneficial, but it was causing some swelling. Id. She rated her pain as a seven. Id. She endorsed the following on a review of systems: back pain; joint pain; loss of strength; muscle weakness and stiffness; poor balance; tingling; neurological weakness; anxiety; depression; and seasonal allergies. Tr. at 656. Dr. DiNicola noted Plaintiff was ambulating with a cane and reported still having some shoulder pain. Id. He observed antalgic gait, pain with lumbar flexion and extension, positive SLR, greater on the left than the right, positive lumbar facet maneuvers, TTP over the SCS battery site, right greater trochanter, and right mid-to-lower lumbar facet joint line, 5/5 BLE strength, pain with bilateral SI joint compression test, positive bilateral FABER test, TTP over the bilateral PSIS, positive Gaenslen's test bilaterally, and decreased ROM of the left shoulder. Tr. at 657. He gave Plaintiff a permanent handicap placard, decreased Lyrica to 75 mg three times a day, and refilled Butrans patches, Tramadol, Robaxin, and Celebrex. Tr. at 658.
Plaintiff presented to Caleb Loring, Psy. D. (“Dr. Loring”), for a consultative mental status exam on July 27, 2020. Tr. at 618-20. She reported a history of chronic back pain that had contributed significantly to symptoms of depression and anxiety. Tr. at 618. She denied attending routine social activities and reported interacting regularly with her husband, aunt, and uncle and sometimes going out to dinner with neighbors, although she stated it was hard for her “to get out and meet people” because she could not walk very far. Id. She indicated Cymbalta helped her depressive symptoms, but her current 60 mg dose made her “too numb.” Tr. at 618-19. She conveyed that she used Xanax five to six times a month when she felt a panic attack coming on. Tr. at 619. She stated Xanax “put[] her to sleep almost immediately.” Id. She endorsed waking a few times during the night, inconsistent crying spells, and decreased appetite. Id.
Dr. Loring observed Plaintiff to have excellent grooming and hygiene, difficulty ambulating with use of a cane for support, and to appear to be in at least moderate pain. Id. He stated Plaintiff was pleasant and cooperative, had normal speech and language skills, and was alert and oriented, but had poor eye contact due to crying. Id. He described her affect as anxious and moderately-to-severely dysphoric. Id. Dr. Loring noted Plaintiff spelled “world” forward correctly and backwards correctly on a second attempt and recalled three of three items immediately and two of three after a brief delay. Id. Plaintiff denied suicidal and homicidal ideation and perceptual abnormalities and endorsed anxious thought content and panic attacks. Tr. at 619-20. Dr. Loring indicated Plaintiff's judgment and insight seemed good, although her thought processes appeared slightly distractible. Id. He stated: “She did not appear to be promoting symptoms or intentionally performing poorly on tasks presented to her.” Tr. at 620.
Plaintiff reported having a driver's license and driving fewer than 10 miles once a week. Id. She said she could perform some indoor chores, but could not vacuum or mop. Id. She indicated she shopped for groceries with her husband, was able to manage money, cared for her grooming and hygiene, prepared some meals, and enjoyed reading, crafts, and puzzles. Id.
Dr. Loring noted: “The depression and anxiety Ms. S[] experiences could very well impact her motivation to engage in daily tasks and probably lead to some avoidance on her part.” Id. He stated she “presents as a depressed anxious woman,” which he considered “consistent with a review of records describing how she has presented to other medical providers.” Id. He indicated “[h]er emotional issues seem to be largely, if not solely, related to her problems with chronic pain.” Id. He wrote:
Unless her chronic pain is resolved, which does not seem likely based on a review of medical records, it is logical to conclude that her symptoms of depression and anxiety will not be resolved either. Her anxiety has led her to experience some panic attacks for which she has been prescribed Xanax. The Xanax helps curb these attacks but also makes her very sleepy. This anxiety and her related panic attacks would make Ms. S[] very unreliable in a vocational setting. She would probably have to take numerous unscheduled breaks and would also probably have unpredictable absences from work to handle her anxiety among other things like pain, etc.
Despite seeking out significant treatment for her pain, depression, and anxiety, many, if not all, of Ms. S[]'s symptoms persist. She is described as a compliant patient who takes her medication as she should. This examiner believes that her pain would be an unpredictable source of distraction for her on the job. This would make it very difficult for her to consistently work at an adequate pace with persistence in a vocational setting while attempting to complete even simple tasks.Id. He assessed anxiety disorder due to another medical condition and depressive disorder due to another medical condition. Id.
On September 18, 2020, Plaintiff complained of worsened depression, dependent edema caused by Celebrex, and feeling poorly on the increased dose of Cymbalta. Tr. at 690. She asked Dr. Evans to discontinue Cymbalta and prescribe Zoloft, as it had previously been helpful. Id. She endorsed fatigue, back pain, gait problems, myalgias, and dysphoric mood. Tr. at 691. Dr. Evans documented tenderness and decreased ROM of the lower back, normal attention, depressed mood, and normal speech, behavior, and thought process. Tr. at 692. He noted Plaintiff was “still quite symptomatic,” despite being on a combination of medications, “[w]alk[ed] slowly with a cane,” and had “difficulty getting in and out of the chair.” Id. He discontinued Cymbalta, refilled Xanax, and prescribed Zoloft 50 mg with the intention of titrating up the dose. Id.
On October 15, 2020, Plaintiff reported the two Tramadol tablets she was taking once or twice a day for breakthrough pain were not completely effective. Tr. at 648. She was reluctant to increase her dose of Tramadol because it made her feel “a little bit drowsy” and as if “her mind is not as sharp.” Id. She reported good results with Celebrex and Lyrica, noting her swelling had improved after her Lyrica dose was decreased to 75 mg three times a day. Id. She endorsed increased low back pain, chronic weakness in her BLE, worse on the right than the left, and significant pain that had affected her ability to perform daily tasks. Id. She rated her pain as a seven and requested repeat RFA. Id. She endorsed the following on a review of systems: back pain; joint pain; loss of strength; muscle weakness and stiffness; poor balance; tingling; neurological weakness; anxiety; depression; and seasonal allergies. Tr. at 650. Dr. DiNicola noted antalgic gait, use of a cane, pain with lumbar flexion and extension, positive bilateral SLR that reproduced lower extremity pain, TTP over the lumbar facet joint lines and the bilateral PSIS, positive bilateral SI joint compression test, 3/5 strength with right hip flexion and knee flexion and extension, 4/5 strength with right ankle plantar flexion and dorsiflexion, 4/5 strength in the left ankle, 4/5 strength with hip flexion and knee extension and flexion, and 5/5 strength with left ankle dorsiflexion and plantar flexion. Tr. at 651. He noted Plaintiff reported some drowsiness with Robaxin. Tr. at 652. He increased Butrans patches to 20 mcg and refilled Tramadol, Celebrex, Lyrica, and Robaxin. Tr. at 651-52.
Dr. DiNicola performed RFA at the left L2, L3, and L4 levels on November 3, 2020, and at the right L2, L3, and L4 levels on November 10, 2020. Tr. at 642, 645.
On January 14, 2021, Plaintiff reported Celebrex, Lyrica, and Robaxin were beneficial, but Butrans 20 mcg patches were causing significant side effects. Tr. at 637. She requested to resume use of the 15 mcg patches, although she noted they had not adequately controlled her pain when used in combination with two Tramadol twice a day. Id. She endorsed greater than 60% pain relief on the right and left sides of her low back following the RFA, but reported recently increased pain in her right and left lower back and posterior hip. Id. She rated her pain as a six. Id. She endorsed the following on a review of systems: back pain; joint pain; loss of strength; muscle weakness and stiffness; poor balance; tingling; neurological weakness; anxiety; depression; and seasonal allergies. Tr. at 639. Dr. DiNicola noted antalgic gait with use of a cane, pain with lumbar flexion and extension, positive bilateral SLR that reproduced lower extremity pain, TTP over the lumbar facet joints and the bilateral PSIS, positive bilateral SI joint compression test, 3/5 strength with hip flexion and knee flexion and extension, 4/5 strength with right plantar flexion and dorsiflexion, 4/5 left ankle strength, 4/5 strength with hip flexion and knee flexion and extension, and 4/5 strength with dorsiflexion and plantar flexion. Tr. at 640. He assessed lumbar radiculopathy status-post L5-S1 fusion, lumbar DDD, lumbar spondylosis, right greater trochanteric bursitis, bilateral SI joint dysfunction, and left shoulder impingement. Id. He decreased Butrans patches to 15 mcg, increased Tramadol 50 mg to one to two tablets three times a day, and refilled Celebrex, Lyrica, and Robaxin. Id.
Dr. DiNicola administered bilateral intra-articular SI joint injections on January 20, 2021. Tr. at 634.
On January 25, 2021, Plaintiff presented to Chi Lim, M.D. (“Dr. Lim”), for evaluation for possible SCS revision. Tr. at 628. She described debilitating back pain and tenderness over the SCS battery site. Id. She rated her pain as a seven. Id. Dr. Lim observed mild TTP at the SCS battery site, TTP of the bilateral paraspinal musculature, significant tenderness over the bilateral SI joints, positive Fortin Finger test, positive pelvic compression test, 5/5 strength in the BLE, intact sensation to crude touch, antalgic gait assisted by a cane, negative SLR, and 2+ reflexes. Tr. at 631. He reviewed x-rays that showed “no specific complicating factors in regard to the fusion,” but “some [mild] adjacent level breakdown” and “evidence of sclerosis along the SI joints.” Id. He assessed status-post lumbar fusion, SCS malfunction, lumbar adjacent segment degeneration, and bilateral SI joint dysfunction. Id. Plaintiff explained she was no longer pleased with the SCS's functioning and it was having difficulty holding a charge. Id. She expressed a desire to undergo removal of the SCS due to its ineffectiveness and in order to be able to undergo an MRI to determine if the source of her pain could be corrected. Id. Dr. Lim noted the particular SCS brand was not supported locally, and no one was available to interrogate the device. Id. He indicated he would schedule Plaintiff for SCS removal. Id.
Plaintiff returned to Dr. Lim for a pre-operative visit on March 5, 2021. Tr. at 623. She complained of debilitating pain, reported her SCS was not working, and reiterated her desire to have it removed. Id. Dr. Lim observed antalgic gait, use of a cane, mild TTP at the SCS battery site, TTP of the bilateral paraspinal musculature, significant tenderness over the bilateral SI joints, positive Fortin Finger test, positive pelvic compression test, 5/5 strength, intact sensation, negative SLR, and 2+ reflexes at the patella and Achilles. Tr. at 626.
On March 12, 2021, Dr. Lim surgically removed the SCS battery and percutaneous leads from Plaintiff's spine. Tr. at 622.
On March 24, 2021, Plaintiff reported Zoloft 50 mg was effective and indicated she was considering having a new SCS placed. Tr. at 694. Dr. Evans noted Plaintiff walked with a cane and provided the following impression: “It is my opinion that she is completely, totally, irreversibly disabled on the basis of decreased mobility, chronic pain, chronic use of sedating medication. She was a project manager and will not be able to return to that level of work.” Id. A review of systems was positive for fatigue, back pain, gait problems, myalgias, and dysphoric mood. Tr. at 695. Dr. Evans noted lower back tenderness, decreased ROM of the back, abnormal gait, walking with a cane, normal attention, depressed mood, and normal speech, behavior, and thought content. Tr. at 696. He continued Pravachol for mixed hyperlipidemia, Zoloft 50 mg for anxious depression, and Xanax for anxiety. Id.
Plaintiff complained of increased pain in her left hip and lower extremity on July 8, 2021. Tr. at 662. She indicated the Butrans patches were not helping her pain and were causing blisters. Id. She reported good functional improvement with one to two Tramadol 50 mg three times a day and additional benefit from Lyrica, Robaxin, and Celebrex. Id. She indicated she felt better overall following removal of the SCS. Id. She rated her pain as a seven. Id. She endorsed the following on a review of systems: arthritis; back pain; joint pain; joint swelling; loss of strength; muscle aches and weakness; disturbances in coordination; falling down; tingling sensation; anxiety; and depression. Tr. at 664. Dr. DiNicola observed antalgic gait, use of a cane, pain with lumbar flexion and extension, positive bilateral SLR that reproduced BLE pain, TTP over the bilateral lumbar facet joint lines and bilateral PSIS, positive bilateral SI joint compression test, 3/5 strength to right hip flexion and knee flexion and extension, 4/5 strength with right ankle plantar flexion and dorsiflexion, 4/5 strength to left hip flexion and knee flexion and extension, and 5/5 strength to left ankle dorsiflexion and plantar flexion. Tr. at 665. He reduced the Butrans patch to 10 mcg for seven days prior to discontinuing it, continued Tramadol, Celebrex, Robaxin, and Lyrica, and added Hysingla ER 20 mg once a day. Tr. at 666.
Dr. DiNicola administered interlaminar steroid injections at Plaintiff's left L1 through L4 levels on August 2, 2021. Tr. at 674.
On September 15, 2021, Plaintiff reported good benefit from Hysingla, although she endorsed more frequent breakthrough pain than she was experiencing on Butrans patches. Tr. at 675. She noted she was typically taking two Tramadol 50 mg three times a day and continued to take Robaxin for muscle spasms, Celebrex for arthritic pain, and Lyrica for neuropathic pain with good benefit. Id. She rated her pain as a seven and described centralized pain near the surgical site in her lower back and occasional acute pain radiating into her RLE. Id. She said her ongoing pain caused difficulty with day-to-day activities. Id. She endorsed the following on a review of systems: arthritis; back pain; joint pain; joint swelling; loss of strength; muscle aches and weakness; disturbances in coordination; falling down; tingling sensation; anxiety; and depression. Tr. at 677. Dr. DiNicola observed antalgic gait, use of a cane, pain with lumbar flexion and extension, positive bilateral SLR that reproduced lower extremity pain, TTP over the bilateral lumbar facet joint lines and the bilateral PSIS, positive bilateral SI joint compression test, 3/5 strength to right hip flexion and knee flexion and extension, 4/5 strength with right ankle plantar flexion and dorsiflexion, 4/5 strength with left hip flexion and knee extension and flexion, and 5/5 strength with left ankle dorsiflexion and plantar flexion. Tr. at 678. He increased Hysingla to 30 mg and refilled Tramadol, Robaxin, Celebrex, and Lyrica. Id.
On September 30, 2021, Plaintiff endorsed fatigue, back pain, gait problems, myalgias, and dysphoric mood on a review of systems. Tr. at 699. Dr. Evans observed tenderness and decreased ROM of the back, abnormal gait and walking with a cane, normal attention, depressed mood, and normal speech, behavior, and thought content. Tr. at 699-700. He refilled Pravachol, Zoloft, and Xanax. Tr. at 700.
Dr. Lim provided a statement on April 15, 2020. Tr. at 715. He noted he was the orthopedic surgeon who removed Plaintiff's SCS and ordered a subsequent MRI that showed arthritis. Id. He opined that arthritis was the primary source of Plaintiff's pain. Id. He deferred to Dr. DiNicola's opinion as to Plaintiff's functional status, as he had only seen Plaintiff “a couple of times” and Plaintiff had “a long treating history” with Dr. DiNicola. Id.
C. The Administrative Proceedings
1. The Administrative Hearing
a. Plaintiff's Testimony
At the hearing, Plaintiff testified she last worked as a director, leading projects and people. Tr. at 47. She stated she worked with multiple departments within the company in an effort to bring everyone together for a common goal. Id. She described her job as initially requiring she be in the office five days per week. Id. She said she performed the majority of her tasks using a telephone and laptop at her workstation and spent 75% to 80% of her day on conference calls, performing developmental and project management work. Id. She indicated that as her back problems worsened, she arranged to work remotely two days a week, which allowed her to get up and walk around with a headset on and to lie down for 10 to 15 minutes to relieve pressure on her back. Tr. at 48. She stated that working from home on two days a week proved insufficient over time. Id. She said her employer agreed to allow her to work remotely full-time from home after she moved to South Carolina, but she became unable to devote enough consecutive hours to work at her workstation. Id. She indicated she was able to raise her work surface and work from both seated and standing positions, but ultimately needed to get away from the workstation and lie down at times. Id. She explained that on some mornings, she would have to take medication and wait for it take effect so that she could get up and try to be productive in her job. Tr. at 49.
Plaintiff testified she was ultimately unable to continue working, despite the accommodations, and prepared a letter of resignation. Id. However, she explained that her company's human resources department advised her to rescind the letter and use the private disability process until she could either return to work or concluded her condition would not improve. Tr. at 49-50. She stated she received short-term disability benefits after she exhausted her paid time off and was subsequently covered for a year under her employer's long-term disability program. Tr. at 50.
Plaintiff testified she would be unable to work an eight-hour workday in a sedentary job because she could not do things consistently for a period of time. Tr. at 51. She explained she constantly had to change positions between sitting, walking, and lying down for relief. Id. She stated her pain level increased and she had to take more medication if she tried to remain in one position for too long. Id. She said her medications affected her abilities to drive and maintain concentration for a period of time. Tr. at 52.
Plaintiff confirmed that she was seeing her doctors every three months, as scheduled, and following her doctors' orders. Id. She indicated she had a driver's license, but denied having renewed it since 2019. Tr. at 53-54. She denied having participated in continuing education or having renewed her project management certification since 2019. Tr. at 54. She stated Dr. Lim had recommended fusion between L3 and L4 and L4 and L5 prior to proceeding with implantation of a second SCS. Tr. at 55. She said she had decided against surgery because the amount of arthritic change made it likely she would continue to have problems after surgery. Tr. at 56. She indicated Dr. DiNicola agreed with her decision not to proceed with additional surgery. Id.
Plaintiff confirmed that Dr. Nicola continued to prescribe Robaxin for muscle spasms. Tr. at 56. She said she typically used one-half to one tablet daily. Id. She described spasms in the midsection of her right lower back. Tr. at 57.
Plaintiff confirmed she had participated in physical therapy for her left shoulder, but did not recall requesting to be released from therapy, and noted the physical therapist often pushed her to do things she was uncomfortable doing given her back problems. Tr. at 57-58. She indicated that after about eight weeks, her shoulder pain had lessened, and she agreed to continue home exercises. Tr. at 58. She stated she continued to have difficulty reaching outward and overhead, had difficulty gripping items, and often dropped things. Id.
Plaintiff denied seeing a counselor, but noted Dr. Evans treated her for depression. Id. She said she had noticed better results after Dr. Evans switched to her Zoloft and Dr. Evans had recently doubled its dose. Tr. at 5859. She stated her anxiety was better controlled with an extended-release medication. Id.
b. Vocational Expert Testimony
Vocational Expert (“VE”) Corvette Harrelson reviewed the record and testified at the hearing. Tr. at 59-63. The VE categorized Plaintiff's PRW as a project director, Dictionary of Occupational Titles (“DOT”) No. 189.117-030, as requiring sedentary exertion and a specific vocational preparation of eight. Tr. at 60. She noted Plaintiff would have no transferable skills to any other industry. Id. The ALJ described a hypothetical individual of Plaintiff's vocational profile who could perform work at the sedentary exertional level; never climb ladders, ropes, or scaffolds; occasionally balance, stoop, kneel, crouch, and crawl; and avoid concentrated exposure to hazards. Id. The VE testified that the hypothetical individual would be able to perform Plaintiff's PRW. Id.
For a second hypothetical question, the ALJ described a hypothetical individual of Plaintiff's vocational profile who was limited to sedentary work; could never climb ladders, ropes, or scaffolds; could occasionally balance, stoop, kneel, crouch, and crawl; must avoid concentrated exposure to hazards; must be permitted to alternate sitting and standing positions every hour while remaining at the workstation with no work interruption; and could frequently interact with the public, coworkers, and supervisors. Id. He asked if the additional limitations would eliminate Plaintiff's PRW. Tr. at 60-61. The VE testified they would not. Id.
For a third hypothetical question, the ALJ asked the VE to consider an individual of Plaintiff's vocational profile who was limited to sedentary work; could never climb ladders, ropes, or scaffolds; could occasionally balance, stoop, kneel, crouch, and crawl; should avoid concentrated exposure to hazards; must be permitted to alternate sitting and standing positions at will; would be unable to maintain concentration, persistence, and pace for two-hour increments; and could occasionally interact with the public, coworkers, and supervisors. Tr. at 61. He asked if the individual would be able to perform Plaintiff's PRW. Id. The VE stated the individual would not be able to perform Plaintiff's PRW and the inability to concentrate for two-hour periods would eliminate unskilled work, as well. Id.
The ALJ asked the VE if a limitation to simple, routine, repetitive tasks alone would eliminate Plaintiff's PRW. Id. The VE confirmed that it would. Id.
The ALJ asked the VE if her opinions had been consistent with the DOT. Id. The VE stated they had. Tr. at 62.
Plaintiff's attorney asked the VE to consider a hypothetical individual of Plaintiff's vocational profile and to assume the individual would have to rest away from the workstation for more than an hour during the workday. Id. He asked if he could correctly assume the restriction would result in no competitive employment. Id. The VE confirmed that no jobs would allow for the restriction. Id.
Plaintiff's attorney asked the VE to consider the individual described in the first hypothetical question, but to assume she would have frequent interruptions to concentration throughout the workday. Id. He asked if the individual would be able to engage in competitive employment. Id. The VE stated the individual would not. Id.
Plaintiff's attorney asked the VE to consider the individual in the first hypothetical question, but to further assume the individual would have to change positions frequently throughout the workday. Id. He asked if the additional restriction would be disabling. Tr. at 63. The VE testified it would be disabling if it resulted in the individual being off-task more than 10 percent of the time. Id.
2. The ALJ's Findings
In his decision, 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 December 31, 2023.
2. The claimant has not engaged in substantial gainful activity since March 20, 2019, the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: obesity, failed back surgery syndrome, and depression (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, 404.1526).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) except that the claimant could never climb ladders, ropes, and scaffolds. She could occasionally balance, stoop, kneel, crouch, and crawl and she must be permitted to alternate sitting and standing positions every hour, while remaining at work station with no work interruption. The claimant must avoid concentrated exposure to hazards, and she can have frequent interaction with the public, coworkers, and supervisors.
6. The claimant can perform past relevant work as a Project Director (DOT # 189.117-030, sedentary exertion, as performed according to DOT, light exertion as actually performed, SVP 8). This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565).
7. The claimant has not been under a disability, as defined in the Social Security Act, from March 20, 2019, through the date of this decision (20 CFR 404.1520(f)).Tr. at 18-31.
II. Discussion
Plaintiff alleges the ALJ failed to properly evaluate Dr. DiNicola's 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 she 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 her 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, she 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 her 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 she 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 her 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 she 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 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.” Vtek 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 18, 2019, Dr. DiNicola provided responses to questions presented by Plaintiff's attorney. Tr. at 517. He answered “[n]o” to a question defining “sedentary work” and asking if Plaintiff could engage in anything more than sedentary work. Id. He responded “[y]es” to a question asking if Plaintiff “attempted to work on an 8 hour day, 5 day per week basis,” would “she most probably have to rest away from the work station for significantly more than an hour during the working portion of the day.” Id. He answered “[y]es,” indicating it was “most probable” Plaintiff “would have problems with attention and concentration sufficient to frequently interrupt tasks during the working portion of the work day” if she attempted to work an eight-hour workday and five-day workweek. Id. He noted his opinions were supported by diagnoses of lumbar radiculopathy, lumbar DDD, and failed back surgery syndrome. Id. He said his opinion as to the severity of Plaintiff's impairments was based on “[p]ersistent, severe chronic pain despite conservative & surgical treatments.” Id. He indicated Plaintiff was impaired as described beginning in 2013. Id.
On August 26, 2019, Dr. DiNicola wrote a letter to Plaintiff's insurance company addressing her symptoms and treatment. Tr. at 518. He explained that Plaintiff had established care with him on November 27, 2018. Id. He stated she suffered from “many years” of chronic pain and her treatment history included lumbar fusion at L 5-S1, SCS implantation, injections, and medications, including Cymbalta, Norco, Celebrex, Robaxin, Lyrica, and Tramadol. Id. He noted Plaintiff was “a very compliant patient,” who took “her medications” with “some benefit,” although she continued to have “severe functional impairment despite all of these treatments.” Id. He wrote:
It is my professional opinion that Ms. S[] cannot perform a job, even at a sedentary level due to considerable pain, as she would need to change positions on a regular basis. She is not really able to lift or do any repetitive bending or twisting activities due to her persistent back pain.Id. He explained:
As documented on her CT/myelogram from March 25, 2019, she continues to have stenotic changes at L 3-4 with significant disc space narrowing and endplate sclerosis at L 4-5. She also has scar tissue formation at her L5-S1 level. All of these findings are objective evidence of her ongoing and continued clinical impairment and certainly support her declining condition with her back pain, limiting her on a daily basis.Id. He noted Plaintiff would continue to require long-term medications for chronic pain with side effects that would limit her ability to continue to work. Id.
On February 10, 2020, Dr. DiNicola completed a physical ability assessment check-off form. Tr. at 596-97. He indicated his assessment was based on Plaintiff's reports, observations, examinations, functional assessments, and a diagnosis that implies an increased risk of harm requiring physician-imposed work activity restrictions. Tr. at 596. He noted he had last examined Plaintiff on January 30, 2020, and based his assessment on her functioning as of that date. Id. He stated Plaintiff could do no reaching. Id. He considered Plaintiff capable of sitting, standing, and walking occasionally, meaning from 0 to 2.5 hours each during the workday. Id. He indicated his findings as to Plaintiff's sitting, standing, walking, and reaching abilities were supported by clinical findings. Id. He provided no limitations as to grasping and fine manipulation. Id. He stated Plaintiff could perform no lifting, carrying, pushing, pulling, climbing, balancing, kneeling, crouching, and crawling and noted the restrictions were supported by clinical findings. Tr. at 597.
Dr. DiNicola provided a statement on April 7, 2020. Tr. at 554. He explained he specialized in interventional pain management and had been treating Plaintiff for lumbar DDD, lumbar radiculopathy, and failed back surgery syndrome. Id. He indicated Plaintiff had an SCS implanted after she continued to suffer from chronic and significant back pain following lumbar fusion at L5-S1. Id. He noted the SCS had “offered only minimal pain relief.” Id. He explained “[t]he objective evidence supporting her pain includes a MRI in July 2017 showing postoperative changes at L5-S1 with anterior and posterior fusion at L3-4,” “[a] mild to moderate disc bulge with focal disc protrusion and mild compression of the thecal sac,” [a] Lumbar CT Myelogram in March 2019 [that] showed a L3-L4 diffuse disc bulging with mild central canal stenosis and mild symmetric facet arthropathy,” “marked disc space narrowing with endplate sclerosis, diffuse bulging discs and marginal osteophyte formation” at L4-5, “[a] possible epidural scar . . . at L5-S1,” “positive straight leg test left greater than right,” “limited range of motion in her lumbar spine,” and “an antalgic gait when she walks.” Id. He declined to recommend further back surgery because he “d[id] not think cutting in the same area with such a surgery [was] going to offer her any pain relief.” Id. He stated he had been treating Plaintiff's pain with medications that included Cymbalta, Celebrex, Robaxin, Tramadol, and Butrans patches. Id. He wrote:
Due to her chronic back pain, Ms. S[] would have to rest away from the workstation for more than an hour. She would have frequent interruptions to concentration throughout the working day. She would have to change positions frequently throughout
the working day. Ms. S[] would not be able to perform even sedentary work.Id.
Dr. DiNicola provided yet another statement on April 18, 2022. Tr. at 717. He noted he continued to see Plaintiff for pain management and had reviewed a 2021 MRI that “was consistent with her previous imaging,” showing laminectomy changes, the prior fusion at L5-S1, and disc disease along with mild foraminal narrowing at L4-5 due to lateral disc bulge.” Tr. at 717. He stated the MRI findings were consistent with Plaintiff's symptoms, including “significant low back pain which is chronic with intermittent leg pain.” Id. He noted Plaintiff continued to have positive bilateral SLR. Id. He stated Plaintiff had post-laminectomy syndrome that was causing her back pain. Id. He indicated Plaintiff's functional status had “not changed much” since he provided a prior statement in April 2020.” Id. He wrote:
Due to her chronic back pain, Ms. S[] would have to rest away from the workstation for more than an hour. She would have frequent interruptions to concentration throughout the working day. She would have to change positions frequently throughout the working day. In my opinion, Ms. S[] remains unable to perform even sedentary work.Id.
Plaintiff argues the ALJ improperly rejected the work-preclusive limitations Dr. DiNicola provided. [ECF No. 8 at 26]. She maintains the ALJ unreasonably concluded that Dr. DiNicola's treatment records showed mild- to-moderate exam findings, as Dr. DiNicola did not specify the severity of findings and consistently documented pain with lumbar flexion and extension, positive SLR, positive lumbar facet maneuvers, and TTP. Id. at 31-32. She asserts the ALJ did not cite to any specific treatment note that was inconsistent with Dr. DiNicola's opinion. Id. at 32. She claims the ALJ ignored her qualifying statements in considering her reports of daily functioning inconsistent with Dr. DiNicola's opinion. Id. She maintains the ALJ ignored most of the evidence and cited to only one record showing normal gait and a second record not reflecting cane use in rejecting Dr. DiNicola's opinion as to cane use. Id. at 33. She argues her treatment history and exam findings do not support the ALJ's conclusory statement that her conditions did not “longitudinally support less than the RFC.” Id. She claims the ALJ erroneously interpreted silence on particular limitations in one opinion, as opposed to another, as inconsistency. Id. at 35. She contends the ALJ's rejection of Dr. DiNicola's opinion that she would have frequent concentration limitations based on “normal mental status exams” is unsupported, as the referenced records said nothing about her concentration and reflected only “Alert & Oriented x3. No Acute Distress.” Id. at 36. She generally alleges the ALJ did not consider the supportability of Dr. DiNicola's opinions. Id. at 37. She further maintains the ALJ ignored the consistency between Dr. DiNicola's opinion and opinions from Drs. Evans, Lim, and Loring. Id. She emphasizes that despite changes to the regulations pertaining to evaluation of medical opinions, ALJs must still provide reasoned explanations for their evaluations. [ECF No. 11 at 2-3].
The Commissioner argues the ALJ appropriately evaluated Dr. DiNicola's opinions. [ECF No. 10 at 7]. She maintains the ALJ found Dr. DiNicola's opinions were not persuasive, as they were not consistent with treatment records showing mild-to-moderate findings on exam and Plaintiff's reports of daily functioning. Id. at 8-9. She notes the ALJ accorded persuasive authority to the state agency medical consultants' opinions. Id. at 9. She asserts the ALJ relied on inconsistencies between opinions Dr. DiNicola provided in the context of Plaintiff's disability application and opinions he provided in other contexts. Id. She contends the ALJ accepted Dr. DiNicola's opinion to the extent he included a sit-stand option in the RFC assessment, consistent with Plaintiff's reason for discontinuing her job. Id. at 10.
The applicable regulation requires the ALJ to consider in the decision how persuasive he found all the medical opinions based on: (1) supportability; (2) consistency; (3) relationship with the claimant; (4) specialization; and (5) other factors that tend to support or contradict a medical opinion. 20 C.F.R. § 404.1520c(b), (c). However, the ALJ is only required to articulate his evaluation of the supportability and consistency factors, as they are considered the most important in assessing the persuasiveness of an opinion. 20 C.F.R. § 404.1520c(a), (b)(2). Failure to consider either the supportability or consistency factor may require remand. See Bonnett v. Kijakazi, 859 Fed.Appx. 19 (Mem.) (8th Cir. 2021) (concluding remand was required for further evaluation of physician's opinion where “the ALJ adequately evaluated the supportability” of the opinion, but “did not address” whether it “was consistent with the other evidence of record, as required by the applicable regulation”); Garrett v. Kijakazi, C/A No. 1:21-46-GCM, 2022 WL 1651454, at *3 (W.D. N.C. May 24, 2022) (“Quite clearly, the ALJ's analysis engages with the consistency factor, but nowhere does the ALJ discuss supportability. Because the ALJ was required to articulate how he considered the supportability factor, he did not apply the correct legal standard in resolving Garrett's claims.”) (citing 20 C.F.R. § 404.1520c(b)(2); Cuevas v. Comm'r of Soc. Sec., 20-cv-0502, 2021 WL 363682, at *15 (S.D.N.Y. Jan. 29, 2021), M&R adopted, 2022 WL 717612 (Mar. 10, 2022) (remanding because the failure to address the supportability factor was a failure to apply the correct legal standard)).
The ALJ's conclusions as to the supportability and consistency of a medical opinion must be supported by substantial evidence. If the ALJ materially errs in evaluating these factors, it may be appropriate for the court to 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), R&R 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), R&R adopted by 2021 WL 3860638 (D.S.C. Aug. 30, 2021).
The Fourth Circuit has cautioned ALJs to avoid cherry-picking the record by referencing only the evidence that supports a conclusion as to the persuasiveness of a medical opinion and ignoring evidence to the contrary. See Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017) (providing an “ALJ has the obligation to consider all relevant medical evidence and cannot simply cherry-pick facts that support a finding of nondisability while ignoring evidence that points to a disability finding”) (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)); see also Robinson v. Saul, C/A No. 0:20-1860-RMG-PJG, 2021 WL 2300809, at *4-5 (D.S.C. May 25, 2021) (remanding case where the ALJ ignored treatment records supporting the medical provider's opinion), R&R adopted by 2021 WL 2291834 (D.S.C. June 4, 2021).
The ALJ addressed Dr. DiNicola's opinions as follows:
The undersigned considered the opinions set forth in the treatment records and medical source statements by Dr. [Di]Nicola which indicate that the claimant is capable of less than sedentary work, and that she is unable to work due to severe functional impairment with no ability to perform a job due to her condition, her need to change position, and her need to rest during unscheduled breaks throughout the day. (9F/2, 8F/6, 10F/1, 14F, 16F/1, 3, 22F). These statements are produced by a treating source; however, they are not supported by this provider's treatment records that show mild to moderate findings on exam, and they are not consistent with the claimant's reports of her own daily functioning. (3E). Therefore, the medical source statements regarding the claimant's functionality are not persuasive. Moreover, any conclusions regarding the claimant's ultimate[] disability are not persuasive as this is an issue reserved for the [C]ommissioner of the Social Security Administration, thus they are not persuasive in terms of the development of the residual functional capacity herein.Tr. at 28.
He further wrote:
However, Dr. [Di]Nicola was the treating provider, and he opines that the claimant is unable to perform work even at the sedentary level. As shown above, including the analysis in section 4 above of the cane use, this is not persuasive.
This is not an adverse reflection on Dr. [Di]Nicola, or the claimant, but is a different assessment after comparing the claimant's testimony of admitted activities, her past job, his contemporaneous treating chart, prepared at the time, for medical treatment and which may be relied upon by other medical professionals, on the one hand, and assessments only prepared for disability assessment on the other. The claimant has undergone invasive medical procedures, with pain and medications, and her conditions have waxed and waned, but they do not longitudinally support less than the RFC.
For example, the first medical source statement from Dr. [Di]Nicola at 9F/2 was dated July 18, 2019. He opined she would miss more than 1 hour per day and not be able to function due to concentration issues. The next month, August 26, 2019 none of these impairments are specifically mentioned in the comprehensive, detailed, disability letter to the private carrier 10F/1, although he does refer to side effects of medication at 10F/1, and pain, without elaboration. The treating chart did indicate complaints of depression by the claimant at 10F/3, but then Dr. [Di]Nicola did not chart any concentration or off task limitations at 10F/4.
The medical source statement at 10F has already been discussed above. Then the last medical source statement by Dr. [Di]Nicola on April 7, 2020 at 14F2 did not list cane or assistive device use “antalgic gait when she walks” and again cited the need to alternate sitting and standing positions, which is reflected in the RFC here.
The frequent concentration limitations are not persuasive, even if these could be extrapolated from Dr. [Di]Nicola[']s reference to medication side effects and pain, even when compared to the normal job length of 8 hours per day. See normal mental status exams in the objective physical exam section at 18F/19, 18F/31, 18F/36, and the claimant is able to concentrate sufficiently to drive, although at a reduced rate.
It was essential to add a sit stand option in the RFC to reflect contemporaneous assessment of Dr. Nicola at 10F/1 discussed on
section 4 above. Further, depression is a severe impairment but the only functional limitation is interaction.Tr. at 29-30.
The ALJ previously noted Dr. DiNicola “did not mention a cane or assistive device as functionally limiting, in a letter to the private disability carrier on August 26, 2019 at 10F/1,” his “longitudinal treating chart for June 7, 2019 confirmed a normal gait at 10F/4, and the subjective review of symptoms did not cite cane use at 10F/3.” Tr. at 19.
The ALJ's reasons for finding Dr. DiNicola's opinion was not persuasive may be summarized as perceived discrepancies between the opinion and “mild-to-moderate findings on exam,” evidence and opinions as to use of a cane, the fact that he did not specify all of the same restrictions in each opinion statement, the absence of observations as to concentration deficits or off-task behavior at page 4 of Exhibit 10F and pages 19, 31, and 36 of Exhibit 18F, and Plaintiff's reports of daily functioning in Exhibit 3E. The undersigned has considered each of the ALJ's reasons for finding Dr. DiNicola's opinion unpersuasive and is unable to reconcile his reasoning with the evidence of record.
In considering the supportability factor, the ALJ concluded Dr. DiNicola's opinion was not supported by “mild to moderate findings on exam.” Tr. at 28. The ALJ failed to explain why he considered Dr. DiNicola's exam findings to be mild-to-moderate, and it is not apparent from a review of the record, as Dr. DiNicola did not characterize any findings as mild, moderate, or severe and consistently documented abnormal exam findings. Although the same abnormal findings were not present during every exam, his records over time reflect observations of pain with lumbar flexion and extension and SI joint compression, positive SLR, positive lumbar facet maneuvers, TTP in multiple areas, positive FABER test, positive Gaenslen's test, positive SI joint compression test, antalgic gait, use of a cane, and decreased lower extremity strength. Tr. at 494, 499, 521, 547, 563, 603-04, 640, 651, 657, 665, 678.
The ALJ's decision emphasizes perceived discrepancies as to Plaintiff's use of a cane, but a review of the record does not support the discrepancies the ALJ discerns. Dr. DiNicola's opinions as set forth above do not address Plaintiff's use of a cane. Earlier in his decision, the ALJ referenced a statement as to Plaintiff's cane use at page 8 of exhibit 18F. Tr. at 19. This record states: “She is using a cane to ambulate and this is not a new finding. She has been doing this for several years.” Tr. at 628. However, this is a reference in Dr. Lim's January 2021 treatment note. See id. The ALJ pointed to Dr. DiNicola's June 7, 2019 treatment record that reflected normal gait and no mention of cane use on a review of symptoms. See Tr. at 19. He correctly noted the observations during Dr. DiNicola's June 2019 treatment note, but ignored subsequent evidence as to Plaintiff's gait and use of a cane. On January 30, 2020, Plaintiff complained of increased instability and weakness in her legs with prolonged walking, and Dr. DiNicola prescribed a single-prong cane to help with stability. Tr. at 601, 603-04. Subsequent records from Drs. DiNicola, Lim, and Evans consistently reflected abnormal gait and use of a cane. See Tr. at 563, 609-10, 626, 631, 640, 651, 657, 665, 678, 692, 696, 699-700. The undersigned's review of the evidence fails to reflect any discrepancies between Dr. DiNicola's records and his opinions as to Plaintiff's use of a cane.
The undersigned also fails to appreciate the ALJ's perceived discrepancies between Dr. DiNicola's five opinion statements. Although Dr. DiNicola did not provide the exact same functional limitations in all five statements, the differences between the opinions are a product of the types of opinions requested, and there are no inconsistencies between the opinions. Dr. DiNicola answered “yes” and “no” to specific questions on July 18, 2019, wrote a letter in response to an inquiry from an insurer on August 26, 2019, responded to a check-off form regarding exertional, postural, and manipulative functions on February 10, 2020, and provided general statements of disability on April 7, 2020, and April 18, 2022.Compare Tr. at 517, with Tr. at 518, 554, 596-97, and 717. In all five statements, he opined that Plaintiff could meet the exertional demands of sedentary work for less than an eight-hour workday. Tr. at 517, 518, 554, 596-97, 717. He noted in three of his opinion statements that Plaintiff would likely have to rest away from the workstation for more than an hour during the workday and would have problems with attention and concentration sufficient to interrupt tasks. Tr. at 517, 554, 717. He also indicated in three statements that Plaintiff would need to change positions regularly throughout the workday. Tr. at 518, 554, 717. Dr. DiNicola's April 2020 and April 2022 statements are completely consistent with one another and are consistent with his July 2019 statement, except that he did not specifically mention a need to change positions in the July 2019 statement. See Tr. at 517, 554, 717. His August 2019 letter to Plaintiff's insurer generally indicated Plaintiff had “severe functional impairment” and “would need to change positions on a regular basis.” Tr. at 518. Although he did not specifically mention a need to rest away from the workstation, a need to change positions is not inconsistent with resting away from the workstation. See Tr. at 518. Dr. DiNicola did not address attention and concentration deficits in the August 2019 letter, but he noted Plaintiff had “severe functional impairment” and “side effects of her medications . . . limit[ed] her ability to continue to work.” Id. He did not opine as to Plaintiff's attention and concentration, need to change positions, and need to rest away from the workstation on the check-off form because it requested specific responses as to Plaintiff's exertional, postural, and manipulative abilities. See Tr. at 596-97.
The evidence also fails to sustain the ALJ's rejection of Dr. DiNicola's opinion as unsupported based on an absence of observations as to concentration deficits or off-task behavior in his records. The ALJ references records corresponding to mental status findings on June 7, 2019, July 23 and October 15, 2020, and January 14, 2021. See Tr. at (referencing 10F/4, 18F/19, 31, 36) (corresponding to Tr. at 521, 639, 651, 656). Each of these records reflects the following: “Mental Status: Alert & Oriented x3, No Acute Distress.” Tr. at 521, 639, 651, 656. However, an observation that an individual is alert and oriented times three means only that she is awake and oriented to person, place, and time. It does not mean she has no concentration deficits or off-task behavior. See Angela M. v. Saul, C/A No. 3:19-1133-JVB, 2021 WL 621283, at *3 (N.D. Ind. Jan. 22, 2021) (noting a reference to the plaintiff being “alert and oriented times three” meant “she could identify who she was, where she was, and the approximate time” and stating “it is not clear how these findings show she could concentrate over a sustained period.”).
Dr. DiNicola's statements include significant explanation with references to the imaging reports, Plaintiff's treatment history, and his observations on exam. The ALJ ignored the explanation Dr. DiNicola provided in concluding his opinions were not supported by the record, despite direction in 20 C.F.R. § 404.1520c(c)(1) that “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his . . . opinion(s) . . . the more persuasive the medical opinion(s) . . . will be.”
The ALJ cited only Plaintiff's reported functions in considering the consistency between Dr. DiNicola's opinion and the other evidence of record. He referenced perceived inconsistency between Dr. DiNicola's opinion and the activities Plaintiff endorsed in a function report at exhibit 3E. In this report, Plaintiff reported abilities to dress and perform hygiene, let her dogs out and provide them food and water, make her bed, “tidy up” her house, read, prepare meals that did not require prolonged standing, do laundry, vacuum, dust, clean the bathroom, water outdoor planters, drive or ride in a car once or twice a day, do needlework, use gaming apps on electronic devices, and watch television. Tr. at 253. However, she stated she could not sit or stand for more than 30 minutes at a time, could no longer care for a garden, could not sit for long enough to complete an activity, did not socialize to any extent due to pain and depression, could no longer mop, could pay attention for 15 to 30 minutes and sometimes longer, could not do the bulk of the grocery shopping, could not perform strenuous housework like cleaning bathtubs and showers, and required her husband's assistance with pet responsibilities on days when her pain level was too great. Id. She explained she would vacuum or dust once or twice a week for roughly 15 minutes, clean bathrooms once a week for about 15 minutes, do one or two loads of laundry once or twice a week, spent 10 to 15 minutes watering plants every other day, and visited stores for a few grocery or household items for 30 minutes once a week. Tr. at 255, 256.
The ALJ erred in considered only the activities Plaintiff reported without considering her limitations in performing them or the activities she could no longer perform due to her impairments. See Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (“An ALJ may not consider the type of activities a claimant can perform without also considering the extent to which she can perform them.”); Arakas v. Commissioner, Social Security Administration, 983 F.3d 83, 99 (4th Cir. 2020) (finding the ALJ “improperly disregarded [the claimant's] qualifying statements regarding the limited extent to which she could perform daily activities”). He failed to explain how Plaintiff's ability to perform these tasks undermined Dr. DiNicola's opinions that she would be unable to complete an eight-hour workday, would require frequent position changes and rest for more than an hour during the day, and would have problems with attention and concentration sufficient to interrupt tasks. See Arakas, 983 F.3d at 99 (stating the ALJ erred in “fail[ing] to adequately explain how [the claimant's] limited ability to carry out daily activities supported his conclusion that she could sustain an eight-hour workday”) and 101 (noting a “claimant's inability to sustain full-time work due to pain and other symptoms is often consistent with her ability to carry out daily activities” and explaining “[t]he critical differences between activities of daily living and activities in a full-time job are that a person has more flexibility in scheduling the former than the latter, and can get help from other persons . . . and is not held to a minimum standard of performance, as she would be by an employer) (quoting Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012)).
The ALJ did not thoroughly evaluate the consistency factor because he failed to address consistency between Dr. DiNicola's opinions and “evidence from other medical sources . . . in the claim.” See 20 C.F.R. § 404.1520c(c)(2). Dr. Loring's observations and opinions appear to be consistent with Dr. DiNicola's opinions, as Dr. Loring observed that Plaintiff “appeared to be in at least moderate pain” during the exam and had a “slightly distractible” thought process and opined that she would require “numerous unscheduled breaks” and her “pain would be an unpredictable source of distraction for her on the job.” Tr. at 619, 620.
Although Dr. Evans often declined to examine Plaintiff's spine because she was receiving specific treatment for it from Dr. DiNicola, Tr. at 552, he noted some observations and impressions consistent with Dr. DiNicola's findings and opinion. See Tr. at 552 (acknowledging Plaintiff “ha[d] some psychological conditions that [were] most probably related, to a certain extent, to her resulting chronic pain”), 607 (indicating Plaintiff had “chronic debilitating pain,” “ambulate[d] with difficulty with a cane,” and had anxiety “[e]xacerbated by her chronic pain”), 609-10 (observing tenderness to Plaintiff's lower back, decreased ROM of her back, and abnormal gait and indicating Plaintiff used “chronic sedating medication”), 692 (documenting tenderness and decreased ROM of the lower back and depressed mood and noting Plaintiff was “still quite symptomatic,” despite being on a combination of medications, “[w]alk[ed] slowly with a cane,” and had “difficulty getting in and out of the chair”), 696 (recording lower back tenderness, decreased ROM of the back, abnormal gait, walking with a cane, and depressed mood), 699700 (noting tenderness and decreased ROM of the back, abnormal gait, walking with a cane, and depressed mood).
Dr. Lim deferred to Dr. DiNicola's opinion regarding Plaintiff's functional limitations, Tr. at 715, but recorded objective findings consistent with those of Dr. DiNicola. See Tr. at 626, 631 (observing mild TTP at the SCS battery site, TTP of the bilateral paraspinal musculature, significant tenderness over the bilateral SI joints, positive Fortin Finger test, positive pelvic compression test, 5/5 strength in the BLE, and gait assisted by cane and noting recent x-rays showed “some [mild] adjacent level breakdown” and “evidence of sclerosis along the SI joints”).
The ALJ's consideration of Dr. DiNicola's opinion reflects his cherrypicking of the record and failure to evaluate the supportability and consistency factors in accordance with 20 C.F.R. § 404.1520c. Consequently, substantial evidence does not support the ALJ's assessment of the persuasiveness of Dr. DiNicola's opinion.
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.
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).