Opinion
Civil Action 4:22-cv-03136-MGL-TER
10-31-2023
THOMASINA WANDA KING, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III, United States Magistrate Judge
This is an action brought pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. Section 405(g), to obtain judicial review of a “final decision” of the Commissioner of Social Security, denying Plaintiff's claim for supplemental security income(SSI). The only issues before the Court are whether the findings of fact are supported by substantial evidence and whether proper legal standards have been applied.
I. RELEVANT BACKGROUND
A. Procedural History
Plaintiff filed an application for SSI on July 1, 2020. (Tr. 12). Her claims were denied initially and upon reconsideration. Thereafter, Plaintiff filed a request for a hearing. Plaintiff and a VE testified at a hearing in September 2021. (Tr. 12). The Administrative Law Judge (ALJ) issued an unfavorable decision on October 7, 2021, finding that Plaintiff was not disabled within the meaning of the Act. (Tr. 12-23). Plaintiff filed a request for review of the ALJ's decision, which the Appeals Council denied on July 15, 2022, making the ALJ's decision the Commissioner's final decision. (Tr. 1-3). Plaintiff filed this action in September 2022. (ECF No. 1).
B. Introductory Facts
Plaintiff was born in December 1968 and was fifty-one years old on the date the application was filed. (Tr. 22). Plaintiff had no past relevant work. (Tr. 22). Plaintiff alleges disability initially due to HIV, acid reflux, diabetes, arthritis, headaches, and depression. (Tr. 89). Pertinent records will be discussed under the relevant issue headings.
C. The ALJ's Decision
In the decision of October 7, 2021, the ALJ made the following findings of fact and conclusions of law (Tr. 12-23):
1. The claimant has not engaged in substantial gainful activity since July 1, 2020, the application date (20 CFR 416.971 et seq.).
2. The claimant has the following severe impairments: degenerative disc disease of the lumbar and cervical spine; headaches; depression; and obesity (20 CFR 416.920(c)).
3. 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 416.920(d), 416.925 and 416.926).
4. 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 416.967(b) except she can never climb ladders, ropes, or scaffolds and can occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs. She can frequently engage in overhead reaching and fingering with her bilateral upper extremities. She cannot work outdoors, and remains capable of exposure to moderate levels of noise as that term is defined in the DOT. She can tolerate occasional exposure to hazards such as unprotected heights and moving machinery. She remains capable of tasks consistent with a reasoning development level of 2 or less as defined within the DOT in an environment requiring no more than occasional changes in work setting or duties. She remains able to concentrate and persist with work tasks at an acceptable pace for 2-hour increments, but will be off-task for 5% of the workday, exclusive of regularly scheduled breaks. She can occasionally interact with the public.
5. The claimant has no past relevant work (20 CFR 416.965).
6. The claimant was born on December 17, 1968 and was 51 years old, which is defined as an individual closely approaching advanced age, on the date the application was filed (20 CFR 416.963).
7. The claimant has at least a limited education (20 CFR 416.964).
8. Transferability of job skills is not an issue because the claimant does not have past relevant work (20 CFR 416.968).
9. 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 416.969 and 416.969a).
10. The claimant has not been under a disability, as defined in the Social Security Act, since July 1, 2020, the date the application was filed (20 CFR 416.920(g)).
II. DISCUSSION
Plaintiff argues generally that the ALJ did not analyze the RFC function-by-function. (ECF No. 20 at 13-14). Plaintiff argues the ALJ did not properly evaluate upper extremity problems including carpal tunnel syndrome in determining the RFC. (ECF No. 20 at 14-16). Plaintiff argues the ALJ failed to properly evaluate degenerative disk disease when determining the RFC. (ECF No. 20 at 16-20). Plaintiff argues the ALJ failed to properly evaluate the impact of obesity on the RFC. (ECF No. 20 at 20-21). Plaintiff argues the ALJ erred in the subjective symptom evaluation, including arguments regarding Lovejoy v. Heckler, 790 F.2d 1114 (4th Cir. 1986). (ECF No. 20 at 22-25). Defendant argues the ALJ's analysis here was sufficient, was in accordance with the applicable law, and Plaintiff has failed to show that the ALJ's decision is not based on substantial evidence.
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 the “need for efficiency” in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity (“SGA”); (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 SGA. See 20 C.F.R. § 404.1520. These considerations are sometimes referred to as the “five steps” of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).
The Commissioner's regulations include an extensive list of impairments (“the Listings” or “Listed impairments”) the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. § 404.1525. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, he will be found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that his impairments match several specific criteria or be “at least equal in severity and duration to [those] criteria.” 20 C.F.R. § 404.1526; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's past relevant work to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. § 404.1520(h).
A claimant is not disabled within the meaning of the Act if he can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, § 404.1520(a), (b); Social Security Ruling (“SSR”) 82-62 (1982). The claimant bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the regional economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that he is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of “any final decision of the Commissioner [ ] made after a hearing to which he was a party.” 42 U.S.C. § 405(g). The scope of that federal court review is narrowly-tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See id.; Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to “try these cases de novo or resolve mere conflicts in the evidence.” Vitek v. Finch, 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir.1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. “Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed “even should the court disagree with such decision.” Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).Substantial evidence as a threshold is “not high;” “[u]nder the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains “sufficien[t] evidence” to support the agency's factual determinations.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019).
B. ANALYSIS
RFC
Plaintiff argues generally that the ALJ did not analyze the RFC function-by-function. (ECF No. 20 at 13-14). Plaintiff argues the ALJ did not properly evaluate upper extremity problems, including carpal tunnel syndrome in determining the RFC. (ECF No. 20 at 14-16). Plaintiff argues the ALJ failed to properly evaluate degenerative disk disease when determining the RFC. (ECF No. 20 at 16-20).
An adjudicator is solely responsible for assessing a claimant's RFC. 20 C.F.R. § 416.946(c). In making that assessment, he must consider the functional limitations resulting from the claimant's medically determinable impairments. Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184, at *2. This ruling provides that: “The RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).” SSR 96-8, *7. “The adjudicator must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved.” Id. Additionally, “ ‘a necessary predicate to engaging in a substantial evidence review is a record of the basis for the ALJ's ruling,' including ‘a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence.' ” Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013)). The ALJ considers the evidence in the record as a whole when analyzing Plaintiff's claims, as does this court when reviewing the ALJ's decision. See Craig, 76 F.3d at 595.
Upper Extremity
Plaintiff argues the ALJ did not properly evaluate upper extremity problems including carpal tunnel syndrome in determining the RFC. (ECF No. 20 at 14-16). Plaintiff notes Plaintiff's complaints of pain. (ECF No. 20 at 15). Plaintiff asserts that the ALJ did not explain why carpal tunnel had no impact on the RFC findings; however, the ALJ acknowledged Plaintiff's allegations and the ALJ provided explanations for why the impairment was found non-severe and in regard to the limitations on reaching and climbing. (Tr. 15-21). Defendant notes that the July 2021 complaints that Plaintiff relies on also accompany exams of no swelling, tenderness, erythema, warmth, or crepitus in her wrists, full range of motion in her wrists and elbows, and full (5/5) strength in her upper extremities. (Tr. 615); (ECF No. 22 at 15). Plaintiff had positive Phalen's sign and Tinel's sign. (Tr. 615). Plaintiff was treated with a wrist splint for two weeks and a steroid burst, which would be completed after twenty-one days. A nerve conduction study was to be ordered. (Tr. 616). Plaintiff was prescribed gabapentin with no refills. (Tr. 616). This was the extent of visits/records during the relevant time period about Plaintiff's wrists.
The ALJ found carpal tunnel syndrome and unconfirmed neuropathy as nonsevere because there was no evidence to support that these impairments cause significant limitations in work-related functioning and some were either controlled with medications or were remote complaints with no recent treatment. (Tr. 15). The RFC as to upper extremity was light, with frequently reach overhead and finger with bilateral upper extremities. (Tr. 17). The ALJ discussed Plaintiff's allegations that she no longer cooks because of the pain in her arms. (Tr. 18). Plaintiff alleges she has pain in her wrist and in her shoulder into her hand. (Tr. 18). The ALJ explained that the “reduced light residual functional capacity above accounts for both her degenerative changes and her obesity, with the additional limitations from climbing and overhead reaching that are more focused on the complaints stemming from her cervical pain.” (Tr. 20-21). Substantial evidence supports the ALJ's findings as to Plaintiff's wrists.
Degenerative Disk Disease
Plaintiff argues the ALJ failed to properly evaluate degenerative disk disease when determining the RFC. (ECF No. 20 at 16-20). Plaintiff argues the ALJ ignored key aspects of her treatment history.
The ALJ found degenerative disc disease of the lumbar and cervical spine as severe. (Tr. 14). The ALJ found an RFC of:
light work as defined in 20 CFR 416.967(b) except she can never climb ladders, ropes, or scaffolds and can occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs. She can frequently engage in overhead reaching and fingering with her bilateral upper extremities. She cannot work outdoors, and remains capable of exposure to moderate levels of noise as that term is defined in the DOT. She can tolerate occasional exposure to hazards such as unprotected heights and moving machinery. She remains capable of tasks consistent with a reasoning development level of 2 or less as defined within the DOT in an environment requiring no more than occasional changes in work setting or duties. She remains able to concentrate and persist with work tasks at an acceptable pace for 2-hour increments, but will be off-task for 5% of the workday, exclusive of regularly scheduled breaks. She can occasionally interact with the public.(Tr. 17). The ALJ provided a chronological discussion of Plaintiff's back impairments where Plaintiff regularly examined with normal gait and strength and was taking over-the-counter Tylenol for the most part. The ALJ discussed April 2020 cervical imaging, showing moderately advanced degenerative disc disease at ¶ 4-5 and C5-6 with mild spondylotic changes, citing Exhibit B2F/39, an April 2020 cervical spine CT scan. (Tr. 19, 376). The ALJ discussed July 2020 lumbar imaging which showed degenerative changes in the lower lumbar spine with osteophyte formation, citing Exhibit B4F/4, notes from Camden Bone & Joint orthopedist stating x-rays of lumbar showed degenerative arthritis and disc disease. (Tr. 19, 415). The ALJ stated “the claimant complained of lower back pain with no weakness or radiation that was helped by muscle relaxers, and presented with tenderness to palpation, painful range of motion, normal strength and sensation, normal straight leg raise testing, and no atrophy,” citing Exhibit B4F/4, the July 30, 2020 exam notes by Dr. Nichols of Camden Bone & Joint. (Tr. 19, 415-416). The resulting treatment from this visit was physical therapy and Tylenol. (Tr. 19, 415-416).
The ALJ considered December 2020 notes which showed medication-Tylenol and muscle relaxer Zanaflex-had improved Plaintiff's back pain, but recently Plaintiff had more discomfort and occasional numbness down her legs, citing Exhibit B8F/5, notes of Dr. Tran of Camden Bone & Joint. (Tr. 19, 455). The ALJ noted the exam showed tenderness to palpation and imaging “showed significant degenerative changes at ¶ 5-S1 with disc height loss and multilevel facet joint hypertrophy,” citing Exhibit B8F/5, Dr. Tran's notes. (Tr. 19, 455). The ALJ considered that Dr. Tran, a specialist, described Plaintiff's symptoms as mild and recommended only a back brace and weight loss. (Tr. 19, 455). Plaintiff was sent for a spinal cord stimulator evaluation. (Tr. 19, 455).
The ALJ considered a February 2021 exam where Plaintiff had normal gait/posture but had tenderness to spine palpation and painful heel walk, citing Exhibit B10F/24, notes from Dr. Siddiqui for chronic disease management and evaluation of back pain. (Tr. 20, 483-485). Dr. Siddiqui noted Plaintiff was able to walk at her baseline. (Tr. 483). Plaintiff reported a pain level of nine. (Tr. 485). Plaintiff examined with normal strength. Plaintiff did not have any pain with walking on toes. (Tr. 485). Plaintiff was advised to use a heading pad, muscle relaxer pills, Tylenol, lidocaine patches, and walking. Plaintiff “again admits that besides the []relaxer, she is not doing anything else as we have previously discussed.” (Tr. 486). Imaging was to be ordered and expectation was physical therapy. (Tr. 486). The ALJ discussed the imaging showing “marked disc space narrowing at ¶ 5-S1 with endplate changes and spondylosis, minimal spondylosis at ¶ 3-4, and early anterior bridging due to spondylosis at ¶ 12-L1,” citing Exhibit B15F/17, February 2021 imaging with impression of no acute process and degenerative disease changes and facet arthritic changes. (Tr. 20, 518).
The ALJ discussed Dr. Siddiqui's March 2021 visit notes where Plaintiff complained of continued low back pain, reported she only took Tylenol “here or there,” and found walking helpful sometimes, citing Exhibit B10F/17-18, Dr. Siddiqui's notes. (Tr. 20, 477-478). Upon exam, Plaintiff had normal gait/posture, no tenderness to palpation of spine, no pain, no swelling, normal strength, and normal gait; Plaintiff had only tenderness to palpation of lumbar paraspinals and found that only walking on her heels exacerbates her pain but not walking on her toes only. (Tr. 20, 479). Impression was physical exam was reassuring with benign findings. (Tr. 480). Plaintiff was advised to use a heating pad and Tylenol on a schedule to impact her pain more positively. (Tr. 480). Plaintiff received a one time injection of toradol. Plaintiff was advised she “should really consider” physical therapy. (Tr. 480).
The ALJ considered PA Murphy's April 2021 notes. (Tr. 20). The ALJ noted “she could not go to physical therapy due to cost.” (Tr. 20). Plaintiff did not have decreased spine range of motion or lower extremity weakness. Plaintiff reported pain in low back was exacerbated by bending, lifting, sitting, and standing. (Tr. 467). Plaintiff reported symptoms were not relieved by Tylenol. Plaintiff reported one week of right shoulder pain after doing hand rower arm exercises. Upon exam, Plaintiff had normal gait/posture, painful movements of cervical spine but no decrease in range or motion. Plaintiff had positive straight leg raising. Plaintiff had muscle spasm of paraspinous and tenderness. Impression was that imaging did not fully explain radiculopathy and an MRI needed to be ordered. Plaintiff was offered a chiropractor but Plaintiff declined and was afraid it would worsen her pain. Plaintiff was given a steroid taper and Baclofen as needed for muscle spasms and instructed to continue Tylenol. (Tr. 470). The ALJ noted that August 2021 lumbar imaging “showed broad-based protrusion at ¶ 1-2 with some impression on the thecal sac and exiting nerve root, shallow protrusions at ¶ 3-4 and L4-5, and disc space narrowing at ¶ 5.” (Tr. 20). Plaintiff's August lumbar MRI showed L1-2 broad-based disc protrusion which extends asymmetrically to the left of midline causing some impression on the thecal sac and exiting nerve root at this level, L3-4 shallow broad-based disc protrusion, L4-5 shallow broad-based disc protrusion. L5-S1 some narrowing of disc space. (Tr. 597). The ALJ noted Plaintiff was seen by Dr. Sakla in September 2021, citing Exhibit B20F/12, Dr. Sakla's notes. (Tr. 20, 597-598). Assessment was symptoms and exam were most consistent with lumbar facet arthropathy and pain decreased Plaintiff's ability to carry out activities of daily living. (Tr. 597). Tramadol was prescribed. (Tr. 598). A medial branch block for diagnostic purposes was recommended; the note states “patient wishes to proceed.” The ALJ stated “but there are no recent records to indicate that she kept this appointment.” (Tr. 20, 598).
After discussing the record, the ALJ concluded:
The objective findings of the claimant's physical and mental impairments are not consistent with limitations greater than those contained within the residual functional capacity. Records show that she typically retains a normal gait, and most frequently displays nothing more than tenderness to palpation across the period at issue, aside for some recent outlying records received from her pain management doctor. Her medications to treat the pain involved remain mild, and there is no indication in the records of any injections or talk of surgical intervention. At the hearing, the claimant testified to the use of a cane for the last few months, but there is no evidence that this is prescribed, and records report that her gait remains normal with no such device being reportedly used. The reduced light residual functional capacity above accounts for both her degenerative changes and her obesity, with the additional limitations
from climbing and overhead reaching that are more focused on the complaints stemming from her cervical pain.(Tr. 20-21).
In formulating the RFC, the ALJ considered Plaintiff's allegations, subjective reports, objective evidence, and opinions. (Tr. 18-22). The ALJ supported the functional limitations found in the ALJ's RFC determination with discussion and citation to substantial evidence in the record. The ALJ did not ignore the abnormal findings in the record but discussed them. An RFC is “an administrative assessment made by the Commissioner based on all the relevant evidence in the case record.” Felton-Miller v. Astrue, 459 Fed.Appx. 226, 230-31 (4th Cir. 2011) (citing 20 C.F.R. §§ 404.1546(c), 416.946(c)). Where there are two reasonable views of the evidence, the responsibility falls on the ALJ and it is not the court's duty to decide between them. Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). The court cannot say that a reasonable mind would not reach this RFC in view of the totality of the evidence. Based upon the foregoing, substantial evidence supports the ALJ's RFC.
As to Plaintiff's arguments regarding a proper function-by-function analysis, the ALJ's RFC and RFC narrative is supported by substantial evidence as displayed above. (ECF No. 20 at 12-14). The RFC discussion by the ALJ permitted meaningful review.
Remand may be appropriate when there is no function-by-function analysis, but remand is only appropriate when meaningful review is frustrated and the court is “unable to fathom the rationale in relation to evidence in the record.” See Mascio, 780 F.3d at 636 (citing Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)). Such is not the case here on either account. See e.g. Ladda v. Berryhill, 749 Fed.Appx. 166, 173 (4th Cir. Oct. 18, 2018)and Wilbanks v. Berryhill, No. CV 1:17-1069-JMC-SVH, 2018 WL 4941121, at *10 (D.S.C. Feb. 7, 2018), report and recommendation adopted sub nom., 2018 WL 4476118 (D.S.C. Sept. 19, 2018).
Obesity
Plaintiff argues the ALJ failed to properly evaluate the impact of obesity on the RFC. (ECF No. 20 at 20-21)
Obesity can affect functional limitations. SSR 19-2p. Obesity may increase the severity of functional limitations of other found impairments. SSR 19-2p, *2. Obesity is required to be considered in assessing an RFC. SSR 19-2p at *4, citing 20 CFR § 416.945. Obesity does increase stress on weight-bearing joints, which can contribute to functional limitations in range of motion, may affect manipulation of objects, and may affect the ability to tolerate certain environments. SSR 19-2 at *4. Obesity may affect the “ability to sustain function over time.” SSR 19-2p at *4. By way of example, someone with a combination of obesity and arthritis may have more pain and functional limitations than someone with just arthritis alone. SSR 19-2p at *4.
Against the backdrop of SSR 19-2p, this issue is frequently addressed in the lower courts of the Fourth Circuit Court of Appeals with varying outcomes. Many decisions affirming disability denials are based on records that have a lack of supporting opinions and/or based on plaintiffs' briefs that do not identify resulting functional limitations if obesity had been considered with other impairments. Sherri D. v. Kijakazi, 2022 WL 1714850, at *3 (D. Md. Mar. 16, 2022)(affirming because plaintiff did not allege additional limitations as to obesity and did not suggest obesity would further limit standing/walking); Crankv. Saul, 2021 WL 955913, at *13 (S.D. W.Va. Feb. 25, 2021), report and recommendation adopted, 2021 WL 951751 (S.D. W.Va. Mar. 12, 2021)(affirming where no physician opined about any limitations related to obesity and plaintiff did not assert how obesity impacted abilities); Risner v. Comm'r Soc. Sec., Admin., No. 8:19-CV0-0753-BHH-JDA, 2020 WL 6276536, at *12 (D.S.C. Apr. 20, 2020), report and recommendation adopted sub nom., 2020 WL 5525391 (D.S.C. Sept. 15, 2020) (affirming where plaintiff did not direct this court to a theory ofhow obesity limited functional capacity); Mohamed Kair G. v. Saul, 2020 WL 3412997, at *5 (D. Md. June 22, 2020)(affirming, finding plaintiff had not suggested obesity would further limit his standing or walking or other functions); Brownlee v. Saul, 2019 WL 3858652, at *6 (M.D. N.C. Aug. 16, 2019), report and recommendation adopted, 2019 WL 4723257 (M.D. N.C. Sept. 26, 2019)(affirming where plaintiff did not refer to any limitation related to obesity); Dunston v. Berryhill, 2018 WL 4576783, at *7 (E.D. N.C. June 5, 2018), report and recommendation adopted, 2018 WL 4204639 (E.D. N.C. Sept. 4, 2018)(affirming, finding plaintiff had not identified how obesity impacted function); cf. Smith v. Saul, 2020 WL 3442327, at *6 (E.D. N.C. May 13, 2020), report and recommendation adopted, 2020 WL 3442318 (E.D. N.C. June 23, 2020)(remanding where no mention of obesity in any of the five steps); Cassandra W., v. Kijakazi., 2022 WL 279828, at *6-7 (D. Md. Jan. 31, 2022)(remand where ALJ found obesity as severe but did not discuss obesity in the RFC, where plaintiff had pointed to limitations attributable to obesity, such as pain that limited capacity to walk/stand throughout workday).
The ALJ found obesity as a severe impairment. (Tr. 14). The ALJ noted Plaintiff's testimony that she had been overweight for a number of years. (Tr. 18). The ALJ noted in the RFC narrative that obesity was a severe impairment because it may cause more than minimal limitations in Plaintiff's ability to perform basic work activities, citing SSR 19-2p. (Tr. 20). The ALJ considered obesity in formulating the RFC: “The reduced light residual functional capacity above accounts for both her degenerative changes and her obesity, with the additional limitations from climbing and overhead reaching that are more focused on the complaints stemming from her cervical pain.” (Tr. 20-21).
Plaintiff's brief argues the specific limitation applicable to Plaintiff due to her obesity is the inability to have surgery. (ECF No. 20 at 20). The singular page of the record Plaintiff refers to states that surgeon Dr. Parrott referred Plaintiff to pain management for an evaluation and treatment of low back pain; part of the assessment by pain management(not the surgeon) was “she is not a surgical candidate because of her weight.” (Tr. 589). This is not a functional ability/limitation within the SSA regulatory definitions. Plaintiff speculates the preclusion of surgery directly impacted the capacity to perform full time work. (ECF No. 20 at 20). Reviewing SSR 19-2p, this conclusory allegation is not a specific functional limitation as contemplated by SSR 19-2p.
In December 2020, Dr. Tran of Camden Bone & Joint Orthopedic Surgery and Sports Medicine referred Plaintiff to Dr. Parrott to inquire about a spinal stimulator. (Tr. 455). The notes from Dr. Parrott do not appear to be in the record, but Plaintiff saw him sometime between January and June 2021. (Tr. 587). Plaintiff reported in June on an SSA form that her visit was in May 2021. (Tr. 246).
“A person may have limitations in any of the exertional functions, which are sitting, standing, walking, lifting, carrying, pushing, and pulling. A person may have limitations in the nonexertional functions of climbing, balancing, stooping, kneeling, crouching, and crawling. Obesity increases stress on weight-bearing joints and may contribute to limitation of the range of motion of the skeletal spine and extremities. Obesity may also affect a person's ability to manipulate objects, if there is adipose (fatty) tissue in the hands and fingers, or the ability to tolerate extreme heat, humidity, or hazards. We assess the RFC to show the effect obesity has upon the person's ability to perform routine movement and necessary physical activity within the work environment. People with an MDI of obesity may have limitations in the ability to sustain a function over time.” SSR 19-2p.
The ALJ properly considered obesity in his findings and in alignment with SSR 19-2p.
Subjective Symptom Evaluation and Lovejoy
Plaintiff argues the ALJ erred in the subjective symptom evaluation, including arguments regarding Lovejoy. (ECF No. 20 at 22-25).
SSR 16-3p sets out “the process ALJs use to evaluate the intensity and persistence of a claimant's symptoms and determine the extent to which the symptoms can reasonably be accepted as consistent with the objective medical and other evidence in the record.” Id.(internal citations and quotations omitted). Under Craig v. Chater, 76 F.3d 585, 591-96 (4th Cir. 1996), subjective complaints are evaluated in two steps. First, there must be documentation by objective medical evidence of the presence of an underlying impairment that would reasonably be expected to cause the subjective complaints of the severity and persistence alleged. Not until such underlying impairment is deemed established does the fact-finder proceed to the second step: consideration of the entire record, including objective and subjective evidence, to evaluate the intensity and persistence of symptoms to determine how symptoms limit capacity for work. See also 20 C.F.R. § 404.1529; SSR16-3p, *4.
The ALJ may choose to reject a claimant's testimony regarding his condition, but the ALJ must explain the basis for such rejection to ensure that the decision is sufficiently supported by substantial evidence. Hatcher v. Sec'y, Dep't of Health & Human Servs., 898 F.2d 21, 23 (4th Cir. 1989) (quoting Smith v. Schweiker, 719 F.2d 723, 725 n.2 (4th Cir. 1984)). A claimant's allegations “need not be accepted to the extent they are inconsistent with the available evidence, including objective evidence of the underlying impairment, and the extent to which that impairment can reasonably be expected to cause the pain the claimant alleges she suffers[.]” Craig, 76 F.3d at 595. The ALJ considers the evidence in the record as a whole when analyzing Plaintiff's claims, as does this court when reviewing the ALJ's decision. See id.; see SSR 16-3p, at *4.
A claimant's statements about intensity, persistence, and limiting effects of symptoms, which are inconsistent with the objective medical evidence and other evidence, are less likely to reduce her capacity to perform work related activities. SSR 16-3p, at *7; 20 C.F.R. § 404.1529(c). An individual's symptoms are evaluated based on consideration of objective medical evidence, an individual's statements directly to the Administration, or to medical sources or other sources, and the following factors:
1. Daily activities;
2. The location, duration, frequency, and intensity of pain or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any medication an individual takes or has taken to alleviate pain or other symptoms;
5. Treatment, other than medication, an individual receives or has received for relief of pain or other symptoms;
6. Any measures other than treatment an individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and
7. Any other factors concerning an individual's functional limitations and restrictions due to pain or other symptoms.SSR 16-3p, at *7; 20 C.F.R. § 404.1529(c). The ALJ at step three is to “consider the individual's symptoms when determining his or her residual functional capacity and the extent to which the individual's impairment-related symptoms are consistent with the evidence in the record.” SSR 16-3p, at *11.
Here, the ALJ considered Plaintiff's allegations and reports of symptoms:
The claimant alleges that she lives with her son, Ryan King, who is 28 years old, and that she completed the 11th grade but then left school and did not get her GED. She states that she previously worked as a CNA, but is not working now. The claimant alleges that she has bad back pain that radiates down her side to her hips and feet and is an 8 on the pain scale. She states that she has headaches daily, and this has occurred for longer than 2 weeks, and they are helped by turning off the lights and closing the blinds, as well as avoiding sound. The claimant alleges that she also experiences nausea, and that she takes medications for her headaches. She states that she has been overweight for a number of years, and that she has a hard time sleeping due to the pain.
The claimant alleges that she does not do housework because moving, sitting, and standing make her pain worse, and that she used to cook but does not now because of the pain in her arms and a bad habit of leaving the stove on and burning things. She states that she does not vacuum, and that her son does the laundry and helps her make the beds and clean the house. The claimant alleges that she uses a shower chair and a cane, and that she does not have a driver's license or do any grocery shopping.
She states that she goes to the bathroom frequently, and experiences crying spells on a daily basis that last around 2 hours. The claimant alleges that her new medication had bad side effects that worsened her headaches, increased her depression, and made her angry. She states that she cannot watch television for 30 minutes and remember what the show was about, and that she does not read books. The claimant alleges that she has suicidal ideations as recently as the night before the hearing, and that the month prior to the hearing she tried to commit suicide by taking a lot of pills, but she was not successful and did not go to the doctor. She states that she has not seen her mental health doctor and did not tell her regular doctor, but did tell the nurse practitioner at the mental health provider.
The claimant alleges that she has pain in her wrist from carpal tunnel syndrome, and pain in her shoulder that goes down into her hand. She states that her impairments, including her HIV diagnosis, cause daily stress in her life and worsen her depression, which affects her concentration. (Hearing Testimony).(Tr. 18-19).
The ALJ found that while Plaintiff's MDIs could reasonably be expected to cause Plaintiff's alleged symptoms, Plaintiff's statements about the effects of the symptoms were not entirely consistent with the record evidence for the reasons explained in the decision. (Tr. 19). The ALJ further gave three specific reasons for this finding. First, the ALJ found that Plaintiff's treatment regimen was inconsistent with the allegations. Plaintiff did not pursue less conservative treatment despite continual complaints. (Tr. 19). The record shows many notes where Plaintiff took over-the-counter Tylenol sometimes; in the opinion as a whole, the ALJ noted the last visit on record where Plaintiff considered a medial branch block for diagnostic purposes and where tramadol was prescribed for the first time. “The nature of the claimant's continuing treatment is not supportive of her subjective allegations, and so those allegations are not persuasive.” (Tr. 19). Consideration of treatment history covers two relevant factors per 20 C.F.R. § 416.929(c)(3)(iv)-(v). The second reason was that the allegations were not consistent with Plaintiff's activities of daily living which included, laundry, cooking, and some cleaning of home and washing of dishes. Plaintiff also reported to others that she cared for her ailing mother. (Tr. 19). Consideration of daily activities covers a relevant factor per 20 C.F.R. § 416.929(c)(3)(i). To the extent Plaintiff disagrees with the ALJ's consideration of Plaintiff's daily activities, several other factors were considered by the ALJ and the ALJ did not place sole reliance on daily activities in performing the subjective symptom evaluation. Third, the ALJ found that Plaintiff did not apply for disability until July 2020 but had stopped working nearly 20 years earlier allegedly due to her HIV which “remains well-controlled with medications.” “For these reasons, the undersigned finds the claimant's testimony inconsistent with the medical evidence under SSR 16-3p and 20 C.F.R. § 416.929.” (Tr. 19). The ALJ then discussed the record evidence of Plaintiff's treatment and opinions, also already discussed above by the court. (Tr. 19-22).
As summarized above, the ALJ discussed Plaintiff's symptom allegations as she had testified, which is one factor of SSR 16-3p. The ALJ discussed treatment Plaintiff received, which involves the fourth and fifth factors of SSR 16-3p. An individual's symptoms are evaluated based on consideration of objective medical evidence and an individual's statements. SSR 16-3p, *7. In addition to consideration of some of the SSR 16-3p factors as discussed above, the ALJ also considered objective evidence. A claimant's allegations alone can never establish that she is disabled. 20 C.F.R. § 404.1529. An ALJ can discount a Plaintiff's subjective complaints when they are unsupported by the record. 20 C.F.R. § 404.1529; Craig v. Chater, 76 F.3d 585, 595 (4th Cir. 1996). Plaintiff is not required to be without symptoms to be found not disabled by the ALJ. Even where there is conflicting evidence that might have resulted in a contrary decision, our review is limited to whether substantial evidence supports the ALJ's decision. Based on the evidence before the ALJ, the ALJ conducted a proper evaluation of subjective symptoms and cited substantial evidence to support the finding that Plaintiff's allegations of disabling symptoms were not fully consistent with the record. See also Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1999)(“No principle of administrative law or common sense requires us to remand a case in quest of a perfect opinion unless there is reason to believe that the remand might lead to a different result”).
Lovejoy
It is well settled that a claimant for Social Security benefits should not be “penalized for failing to seek treatment she cannot afford.” Lovejoy, 790 F.2d at 1117. Social Security Ruling 163p expressly addresses the situation where a claimant asserts that he has not pursued medical treatment because of a lack of financial resources. See SSR 16-3p, 2017 WL 5180304 at *10(“we will consider and address reasons for not pursuing treatment that are pertinent to an individual's case,” including whether “[a]n individual may not be able to afford treatment and may not have access to free or low-cost medical services.”);Gordon v. Schweiker, 725 F.2d 231, 237 (4th Cir. 1984) (“[I]t flies in the face of the patent purposes of the Social Security Act to deny benefits to someone because he is too poor to obtain medical treatment that may help him.”).
Plaintiff notes the ALJ's statement of conservative treatment. (ECF No. 20 at 22). Plaintiff notes Plaintiff stated generally in contemporaneous treatment notes that she was unable to afford physical therapy. Plaintiff argues: “It is therefore questionable whether she could afford any more specialized or aggressive treatment such as fusion surgery.” (ECF No. 20 at 23). The record does not appear to contain the notes from the spinal stimulator consult with surgeon Dr. Parrott but includes notes from other providers creating the referral and after the referral. Fusion surgery and spinal stimulator surgery are different. There does not appear to be any recommendation for fusion surgery in the record. Plaintiff regularly attended doctor visits, including specialists like orthopedists, received prescription medications, received multiple types of imaging, and received braces. Plaintiff argues the ALJ may not penalize Plaintiff for failing to seek treatment she cannot afford. (ECF No. 20 at 23). The ALJ only noted that the actual recommendations by treating providers were mostly conservative. Plaintiff reported only taking Tylenol sometimes at multiple visits until the last visit when Plaintiff was prescribed Tramadol. No arguments were made at the hearing that Plaintiff could not afford treatment and Plaintiff did not testify that she could not afford to seek treatment. Plaintiff testified that she had received treatment for a number of years for back pain. (Tr. 43). Plaintiff testified she also received mental health treatment. (Tr. 48-49). Plaintiff was wearing her wrist brace at the hearing. (Tr. 51). Plaintiff testified she saw Dr. Belcher every two to three months. (Tr. 53). The record belies Plaintiff's assertions that Plaintiff has been penalized for failing to seek treatment she cannot afford.
See 21 C.F.R. § 882.5880(an implanted spinal cord stimulator is for pain relief; it does not fuse bones together).
III. CONCLUSION
This Court is charged with reviewing the case only to determine whether the findings of the Commissioner were based on substantial evidence. Richardson, 402 U.S. at 390. Even where the Plaintiff can produce conflicting evidence which might have resulted in a contrary decision, the Commissioner's findings must be affirmed if substantial evidence supported the decision. Blalock, 483 F.2d at 775. The Commissioner is charged with resolving conflicts in the evidence, and this Court cannot reverse that decision merely because the evidence would permit a different conclusion. Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984). As previously discussed, despite the Plaintiff's claims, she has failed to show that the Commissioner's decision was not based on substantial evidence. Based upon the foregoing, and 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 Sections 205(g) and 1631(c)(3) of the Social Security Act, 42 U.S.C. Sections 405(g) and 1338(c)(3), it is recommended that the Commissioner's decision be AFFIRMED.