Opinion
7:21-CV-00082-FL
07-26-2022
April Christina Malambri, Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social Security, Defendant.
MEMORANDUM & RECOMMENDATION
Robert T. Numbers, II, United States Magistrate Judge
Plaintiff April Malambri challenges Administrative Law Judge (ALJ) John Thawley's denial of her application for social security income. Malambri claims that ALJ Thawley erred in (1) considering the medical opinion evidence from her treating provider and (2) determining her residual functional capacity (RFC). Both Malambri and Defendant Kilolo Kijakazi, Acting Commissioner of Social Security, have moved for judgment on the pleadings in their favor. D.E. 14, 16.
After reviewing the parties' arguments, the undersigned has determined that ALJ Thawley reached the appropriate determination. ALJ Thawley explained why the opinion of a treating provider deserved less weight than the testimony of a medical expert. And he committed no error in failing to incorporate findings from that treating provider into the RFC. The undersigned thus recommends that the court deny Malambri's motion, grant Kijakazi's motion, and affirm the Commissioner's decision.
The court has referred this matter to the undersigned for entry of a Memorandum and Recommendation. 28 U.S.C. § 636(b).
I. Background
In October 2014, Malambri applied for supplemental security income and disability benefits. In both applications, she alleged a disability that began nine months earlier. After the Social Security Administration denied her claim at the initial level and upon reconsideration, Malambri appeared for a hearing before an ALJ to determine whether she was entitled to benefits. The ALJ determined Malambri had no right to benefits because she was not disabled. Tr. at 1119.
Malambri later amended her alleged disability onset date to January 2013. Tr. at 706.
After the Appeals Council denied her claim, Malambri filed a complaint in this forum. See Malambri v. Saul, 7:18-CV-60-JG (E.D. N.C. ). The court remanded the matter for further consideration of the medical opinion evidence. Id. at D.E. 30.
Malambri appeared for a hearing before ALJ Thawley to determine whether she was entitled to benefits. ALJ Thawley determined that she was not disabled and thus had no right to benefits. Tr. at 706-19.
ALJ Thawley found that Malambri's lumbar spine degenerative disc disease with facet arthropathy, status post-surgery, neuropathy, and bilateral popliteal cyst were severe impairments. Tr. at 709. ALJ Thawley also found that Malambri's impairments, either alone or in combination, did not meet or equal a Listing impairment. Tr. at 710.
ALJ Thawley then determined that Malambri had the RFC to perform light work with limitations. Tr. at 712. She can push and pull consistent with light work but Malambri cannot use foot controls. Id. She cannot kneel or crawl, but she can occasionally balance, stoop, and crouch. Id. Malambri cannot climb ladders, ropes, or scaffolds but she can occasionally climb ramps and stairs. Id. And Malambri must avoid exposure to extreme heat and cold, excessive vibrations, and workplace hazards such as moving, industrial-type machinery and unprotected heights. Id.
ALJ Thawley concluded that Malambri could not perform her past work as a cashier II or stock clerk. Tr. at 717. But considering her age, education, work experience, and RFC, ALJ Thawley found that jobs existed in significant numbers in the national economy that she could perform. Tr. at 717-18. The jobs include marker, office helper, and mail clerk. Id. Thus, ALJ Thawley found that Malambri was not disabled. Tr. at 719.
After unsuccessfully seeking review by the Appeals Council, Malambri commenced this action in May 2021. D.E. 1.
II. Analysis
A. Standard for Review of the Acting Commissioner's Final Decision
When a social security claimant appeals a final decision of the Commissioner, the district court's review is limited to determining whether, based on the entire administrative record, there is substantial evidence to support the Commissioner's findings. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is defined as “evidence which a reasoning mind would accept as sufficient to support a particular conclusion.” Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). The court must affirm the Commissioner's decision if it is supported by substantial evidence. Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996).
B. Standard for Evaluating Disability
In making a disability determination, the ALJ engages in a five-step evaluation process. 20 C.F.R. § 404.1520; see Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005). The ALJ must consider the factors in order. At step one, if the claimant is engaged in substantial gainful activity, the claim is denied. At step two, the claim is denied if the claimant does not have a severe impairment or combination of impairments significantly limiting him or her from performing basic work activities. At step three, the claimant's impairment is compared to those in the Listing of Impairments. See 20 C.F.R. Part 404, Subpart P, App. 1. If the impairment is listed in the Listing of Impairments or if it equals a listed impairment, disability is presumed. But if the claimant's impairment does not meet or equal a listed impairment, the ALJ assesses the claimant's RFC to determine, at step four, whether he can perform his past work despite his impairments. If the claimant cannot perform past relevant work, the analysis moves on to step five: establishing whether the claimant, based on his age, work experience, and RFC can perform other substantial gainful work. The burden of proof is on the claimant for the first four steps of this inquiry, but shifts to the Commissioner at the fifth step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
C. Medical Background
In May 2013, Malambri saw Dr. Michael Picciano. Tr. at 331. An examination noted tenderness in her back and knees. Id. An MRI showed well maintained disc spaces and a bone island in the right iliac bone. Tr. at 328.
Dr. John Parker examined Malambri the next month. Tr. at 349. She had knee discomfort, so Dr. Parker recommended therapy. Id. Michael Ryan, PT, evaluated Malambri later that month. Tr. at 341. He noted a gait with excessive out-toeing and excessive pronation when barefoot. Id. Malambri also displayed poor motor control in her quadriceps, especially when climbing stairs or squatting. Id.
In October 2014, a lumbar spine MRI showed mildly narrowed disc spaces with only equivocal marginal osteophyte formations. Tr. at 322. At a return visit to Dr. Picciano, Malambri claimed she sometimes could not move because of her pain. Tr. at 327. An examination found lumbar tenderness and pain with flexion and extension. Tr. at 326.
Another lumbar spine MRI later that month revealed mild diffuse annular disc bulging, mild disc space narrowing, and disc desiccation abutting the thecal sac without nerve root involvement. Tr. at 351.
In November 2014, Malambri returned to Dr. Picciano and related a history of constant low back pain since the age of 16. Tr. at 316. He noted imaging studies showed three herniated discs and found tenderness upon examination. Id. Dr. Picciano concluded that Malambri could not lift more than 20 pounds, could engage in no repetitive lifting, and must avoid prolonged sitting and standing. Tr. at 298. He referred Malambri for physical therapy. Tr. at 336.
At a physical therapy evaluation later that month, Malambri reported impaired sleep, interference with her daily activities, and an inability to lift her small child. Id. She reported pain with all trunk movements. Id.
Around this time, Dr. Colin Harris met Malambri for an initial surgery consultation. Tr. at 344. She reported severe lower back pain that radiated into her lower extremities. Id.
Treatment notes reflect an antalgic gait as well as trouble moving from a seated to standing position and getting on and off the exam table. Tr. at 345. Malambri displayed tenderness, hypersensitivity to touch, some diminished sensation, a markedly limited range of motion, and positive bilateral straight leg raises. Tr. at 346. Dr. Harris found that Malambri would not benefit from surgery and recommended that she seek pain management. Id.
The next month, Carla Vavala, PA-C, treated Malambri for her reports of burning pain in her lower extremities. Tr. at 696. She had tenderness and positive Patrick's test as well as positive results on the right with straight leg raises and Farber's test. Tr. at 698.
A June 2015 MRI of Malambri's lower back showed desiccation changes in her lumbar discs and mild disc bulging at ¶ 4-L5 extending into the neuroforaminal with a central disc protrusion minimally indenting the thecal sac, without nerve root impingement. Tr. at 504. But the mass effect on the thecal sac had improved and the disc protrusion appeared slightly smaller. Id. It also showed foraminal stenosis at ¶ 5-S1 that was mild on the right and moderate to severe on the left. Id.
Malambri saw Dr. Ijaz Rashid five months later reporting tingling in her hands and feet. Tr. at 360. An examination showed sensory deficits in the bilateral upper extremities. Tr. at 361. Electromyography and nerve conduction studies two months later revealed mild length dependent peripheral neuropathy in the bilateral lower extremities. Tr. at 365.
In April 2016, Malambri underwent bariatric surgery. Tr. at 529, 539, 541. And four months later, she underwent laminectomy surgery at the L5-S1 level. Tr. at 667. Upon discharge, providers instructed Malambri to avoid pushing, pulling, lifting more than five pounds, as well as prolonged sitting and standing. Tr. at 672.
Malambri saw Deborah Bedford, FNP, two months later. Tr. at 680. She had tingling, numbness, and a burning sensation in her upper and lower extremities, where Bedford noted sensory deficits. Id.
Dr. Picciano completed a Medical Source Statement in November 2016. Tr. at 633-36. He found that Malambri could sit and stand for 30 minutes at a time. Id. She could sit, stand, or walk for about two hours in an eight-hour workday. Id. And she could rarely lift up to ten pounds. Id. Dr. Picciano also determined that Malambri would need to take 30-minute breaks twice an hour, would be off-task for more than 20% of the time, and likely miss work about four times a month. Id.
Dr. Michael Miller saw Malambri three months later for persistent back pain. Tr. at 168896. Her numbness, tingling, and weakness had resolved since her surgery. Id. Comparing contemporaneous x-rays with her pre-surgery MRI, Dr. Miller noted slight narrowing in the L5-L5 disc space. Id. And an examination revealed tenderness in the lumbosacral region, mild muscle hypertonicity, and diminished sensation in her left thigh. Id. Dr. Miller assessed low back pain and lumbar disc herniation with radiculopathy. Id.
Dr. Brian Johnson performed a psychiatric evaluation the next month. Id. He noted her history of back pain and her reports of foot numbness. Id. Malambri's euthymic effect became tearful when discussing her conditions. Id. Dr. Johnson assessed major depressive disorder and prescribed medication. Id.
Malambri sought treatment at Crystal Coast Pain Management from November 2018 through May 2019. Tr. at 1487-1538, 1659-80. Dr. Courtney Auman assessed multifactorial low back pain, for which she administered facet joint blocks. Id.
Malambri testified that she experiences back pain with “nerves” in her arms and legs “acting up.” Tr. at 743. Despite her 2016 back surgery, she maintains that she still cannot pick up a laundry basket or play with her children. Tr. at 744. She experiences back pain if she sits or stands for too long or when standing up to wash dishes or do laundry. Id. Malambri also testified that her knees sometimes give out and she falls. Tr. at 748.
Malambri claimed she had problems obtaining medical treatment after moving from New York to North Carolina. Tr. at 750. And she could not afford to pay out-of-pocket for medical care. Id.
Medical Expert Dr. John Kwok also testified. After reviewing the entire record, he found that Malambri could sit, stand, and walk for six hours in an eight-hour workday. Tr. at 777-78. And he found she could frequently climb ramps and stairs, frequently balance and kneel, but never crawl. Tr. at 778. Malambri could occasionally push, pull, and operate pedals and levers. Id. And Dr. Kwock recommended that she have no more than occasional exposure to workplace hazards. Id.
Because Malambri filed her application before March 2017, when revised Regulations became effective, see 20 C.F.R. § 404.1520c, the previous Regulations govern how the ALJ considers the medical opinions in this case.
Malambri contends that ALJ Thawley erred in considering the 2016 opinion of Dr. Picciano, her treating provider. Malambri also argues that ALJ Thawley erred in according more weight to the assessment of Dr. Kwock, a non-treating medical expert. The Acting Commissioner contends that ALJ Thawley properly explained why he assigned Dr. Picciano's 2016 statement only partial weight and Dr. Kwock's testimony received more probative weight. The undersigned finds no error in the consideration of the medical opinion evidence.
“Medical opinions are statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [the claimant's] symptoms, diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and [the claimant's] physical or mental restrictions.” 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). An ALJ must consider all medical opinions in a case in determining whether a claimant is disabled. See id. §§ 404.1527(c), 416.927(c); Nicholson v. Comm'r of Soc. Sec., 600 F.Supp.2d 740, 752 (W.D. Va. 2009) (“Pursuant to 20 C.F.R. §§ 404.1527(b), 416.927(b), an ALJ must consider all medical opinions when determining the disability status of a claimant.”).
Opinions of treating physicians and psychologists on the nature and severity of impairments must be given controlling weight if they are well supported by medically acceptable clinical and laboratory diagnostic techniques and are not inconsistent with the other substantial evidence in the record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996); Wardv. Chater, 924 F.Supp. 53, 55-56 (W.D. Va. 1996); SSR 96-2p, 1996 WL 374188 (July 2, 1996). Otherwise, the opinions are to be given significantly less weight. Craig, 76 F.3d at 590. In determining the weight to be ascribed to an opinion, the ALJ should consider the length and nature of the treating relationship, the supportability of the opinions, their consistency with the record, any specialization of the source of the opinions, and other factors that tend to support or contradict the opinions. 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6).
The ALJ's “decision must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the [ALJ] gave to the treating source's medical opinion and the reasons for that weight.” SSR 96-2p, 1996 WL 374188, at *5; see also 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); Ashmore v. Colvin, No. 0:11-2865-TMC, 2013 WL 837643, at *2 (D.S.C. Mar. 6, 2013) (“In doing so [i.e., giving less weight to the testimony of a treating physician], the ALJ must explain what weight is given to a treating physician's opinion and give specific reasons for his decision to discount the opinion.”).
Opinions from “other sources” who do not qualify as “acceptable medical sources” cannot be given controlling weight but are evaluated under the same factors used to weigh the assessments of physicians and psychologists. SSR 06-03p, 2006 WL 2329939, at *2, 4 (Aug. 9, 2006); see also 20 C.F.R. §§ 404.1513(d)(1), 416.913(d)(1) (identifying “other sources”). An ALJ must explain the weight given opinions of “other sources” and the reasons for the weight given. SSR 06-03p, 2006 WL 2329939, at *6; Napier v. Astrue, No. TJS-12-1096, 2013 WL 1856469, at *2 (D. Md. May 1, 2013).
Similarly, evaluations from sources who neither treat nor examine a claimant are considered under the same basic standards as evaluations of medical opinions from treating providers whose assessments are not given controlling weight. See 20 C.F.R. §§ 404.1527(c), (e), 416.927(c), (e). The ALJ must explain the weight given to these opinions. Id.; Casey v. Colvin, No. 4:14-CV-00004, 2015 WL 1810173, at *3 (W.D. Va. Mar. 12, 2015), adopted by, 2015 WL 1810173, at *1 (Apr. 21, 2015); Napier, 2013 WL 1856469, at *2.
More weight is generally given to the opinion of a treating source over the opinion of a non-treating examining source. Similarly, the opinion of an examining source is typically given more weight than the opinion of a non-examining source. See 20 C.F.R. §§ 404.1527(c)(1), (2), 416.927(c)(1), (2). Under appropriate circumstances, however, the opinions of a non-treating examining source or a non-examining source may be given more weight than those of a treating source. See, e.g., Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001) (affirming ALJ's attribution of greater weight to the opinions of a non-treating examining physician than to those of a treating physician); SSR 96-6p, 1996 WL 374180, at *3 (July 2, 1996) (“In appropriate circumstances, opinions from State agency medical and psychological consultants and other program physicians and psychologists may be entitled to greater weight than the opinions of treating or examining sources.”).
Opinions from medical sources on issues reserved to the Commissioner, such as disability, deserve no special weight. See 20 C.F.R. §§ 404.1527(d), 416.927(d); SSR 96-5p, 1996 WL 374183, at *2, 5 (July 2, 1996). But the ALJ must still evaluate these opinions and give them appropriate weight. SSR 96-5p, 1996 WL 374183, at *3 (“[O]pinions from any medical source on issues reserved to the Commissioner must never be ignored. The adjudicator must evaluate all evidence in the case record that may have a bearing on the determination or decision of disability, including opinions from medical sources about issues reserved to the Commissioner.”).
1. Dr. Picciano's 2016 Medical Source Statement
Malambri contends that, despite the instruction of remand to properly consider the Dr. Picciano's medical opinion, ALJ Thawley offered insufficient reasons to give partial weight to this evidence. And she claims that he erred in finding the assessment of a non-treating medical expert more probative than that of a treating provider.
Dr. Picciano's 2016 Medical Source Statement concluded that Malambri could sit and stand for 30 minutes at a time and sit, stand, and walk for up two hours in an eight-hour workday. Tr. at 633-36. Malambri could rarely lift less than ten pounds. Id. He also determined that she needed to take two breaks every hour for thirty minutes, would be off task more than 20% of the workday, and would be absent from work about four times a month. Id. And Dr. Picciano assessed additional postural and manipulative restrictions. Id.
In the earlier disability determination, the ALJ gave partial weight to the 2016 opinion. Tr. at 17. The ALJ found that the restrictions conflicted with the overall record. Id. She cited Malambri's high level of daily activity as well as her ability to maintain her household and independently care for her children when her husband was away. Id.
In the order remanding the case to the Commissioner for further consideration, the court found that the ALJ improperly analyzed Dr. Picciano's 2016 statement. See Order, D.E. 30 Malambri v. Saul, 7:18-CV-60-JG (E.D. N.C. Sept. 3, 2019). The court determined that there were three deficiencies in the ALJ's consideration of this evidence. First, the ALJ failed to explain how the nature of Dr. Picciano's restrictions conflicted with the record as a whole. Id. at 12-13.
Second, the ALJ cited Malambri's “high level of daily activity,” but did not specify which functions that the disability decision referenced earlier were specifically inconsistent with Dr. Picciano's 2016 restrictions. Id. at 13. And Malambri's testimony about her abilities appeared to track the 2016 statement. Id.
Third, the ALJ noted Malambri's ability to maintain her household and independently care for her children when her husband was away. The ALJ characterized this as occurring “often” but the court found that Malambri's testimony cast doubt on the frequency that her husband was away traveling for work. Id. at 14-15. The court also noted that the ALJ did not reference Dr. Picciano's status as a treating source. Tr. at 15.
The court cited Malambri's testimony that her husband travel for work was “hit and miss,” and that he worked “job to job.” Tr. at 54. Although she responded affirmatively when asked if “it was not something that happened often since he only started working again[,]” the testimony does not reveal how often this occurred. As discussed below, the second hearing clarified this issue. Malambri testified that when her husband was out of town for work, she has to do all the household chores-like laundry and shopping-on her own. Tr. at 45-46. With vacuuming and cleaning, she could do 10-15 minutes at a time, with a ten-minute break, over two hours. Tr. at 47-48.
Upon remand, ALJ Thawley also determined that Dr. Picciano's 2016 Medical Source Statement deserved partial weight. Tr. at 715-16. He noted Dr. Picciano's treating relationship and his assessed limitations. Id. ALJ Thawley concluded that the overall clinical findings discussed in his decision supported no greater than moderate limitations. Tr. at 716. He also noted Malambri's reported daily activities, which included her ability to independently maintain her household and care for her two children when her husband is away for months at a time, showed that Dr. Picciano's opinion was too restrictive. Id.
Although not cited by ALJ Thawley, a limitation that Malambri be allowed two unscheduled breaks every hour for 30 minutes appears unworkable if each twice-hourly break were 30 minutes in length.
Malambri contends that ALJ Thawley's grounds to accord partial weight to this opinion are flawed because they reiterate the same reasons the court found insufficient in the previous disability decision. She argues that ALJ Thawley failed to identify the evidence inconsistent with Dr. Picciano's statement. Malambri asserts that Dr. Picciano was in a better position to assess her functional limitations during the time her treated her. And failing to provide an adequate basis to disregard this assessment in turns renders the RFC unsound.
Disputing Malambri's contentions, the Acting Commissioner argues that ALJ Thawley complied with the remand order, properly considered all the medical opinion evidence, and offered sufficient reasons to afford partial weight to Dr. Picciano's 2016 statement.
ALJ Thawley noted Dr. Picciano's treating relationship with Malambri. Tr. at 715. But she did not treat with him after June 2017. Tr. at 716. At the record reflected no other treatment for her back pain after September 2019. Tr. at 714.
ALJ Thawley's decision also noted that the medical evidence showed some sensory deficits and intermittent back and knee tenderness. Tr. at 713. But Malambri consistently showed full strength, normal muscle tone, full range of motion, normal grip, and a normal gait. Id. And objective studies generally revealed mild to moderate findings. Id.
But a 2015 MRI characterized foraminal stenosis as moderate to severe on the left at ¶ 5-S1. Tr. at 504.
ALJ Thawley observed that at various times throughout the relevant period, Malambri reported that she was doing “fine” and denied joint swelling, muscle weakness, or activity limitations. Tr. at 713-14. Aside from her 2016 back surgery, she treated her back and knee pain with conservative measures, including medications, injections, physical therapy, and braces. Tr. at 713.
As to her knee condition, providers indicated that her popliteal cysts would improve with weight loss, which Malambri accomplished. Tr. at 714. And she reported significant improvement in her knee pain with physical therapy. Id. Though she had some degenerative changes, examinations found minimal effusion, no obvious swelling, and good range of motion. Id. Imaging of her knees showed chondromalacia and cysts but providers did not feel she would benefit from surgery, and she did not desire surgical intervention. Tr. at 714-15. They also noted that despite her modest discomfort, Malambri retained a high level of functioning. Tr. at 715.
ALJ Thawley observed that Malambri sought no treatment for back pain for over a year after moving to North Carolina. Tr. at 714. And she hesitated to take pain medication for her back condition. Id. She alleged worsening back pain in February 2019 after falling in her garage while putting up plywood. Id.
Malambri testified that she had trouble finding care under her insurance and could not afford to pay out-of-pocket for treatment. Tr. at 756.
ALJ Thawley remarked that Malambri was responsible for everything at home when her husband traveled for extended periods of time (months at a time). Tr. at 714. She maintains the household, performs chores, shops, cares for two young children, and does yardwork. Id.
At the time of the January 2021 hearing, her children were 11 and 8 years. So they were around 3 years and under one year in January 2013, the beginning of the relevant period.
Malambri's testimony about her husband's work offered a contrast to Dr. Picciano's 2016 statement and showed that Malambri was not as limited as he determined. Tr. at 760-68. When they lived in New York, her husband was home about six or seven months, spread over the course of a year. Tr. at 761. Since moving to North Carolina in 2017, he worked more. Id.
When they first arrived in North Carolina, her husband was home for about two months of the year for the first two years. Tr. at 763. In 2019, he was away from February through May. Tr. at 764. And he traveled for work from July to August and October to December. Tr. at 765-66. In 2020, he was working out of town from March through May. Tr. at 766-67. After being at home for a month and a half, he worked in New York until October. Id. But he worked less in 2020 than he did in previous years. Tr. at 765.
When her husband is away, Malambri is responsible for everything. Tr. at 768. She has no family to assist her. Tr. at 768-69. She cuts the grass, first with a push mower but now with a riding mower. Tr. at 769. It takes her two hours but Malambri takes breaks when doing this. Tr. at 770-71. Malambri also cleans up after her dog and changes the cats' litter box. Tr. at 769-70.
Her children clean their rooms, help move laundry into the wash, set the table, and sometimes help her with grocery shopping. Tr. at 771. But they do nothing else as far as chores or housework. Tr. at 771-72.
In sum, this testimony confirms that Malambri is not as limited as she claims or as Dr. Picciano determined in his 2016 Medical Source Statement. This testimony, coupled with other medical evidence in the record, supports ALJ Thawley's reasons to accord only partial weight to this assessment.
Malambri has identified no error, only disagreement, with ALJ Thawley's consideration of the Dr. Picciano's 2016 opinion. It is not the role of the reviewing court to weigh evidence or make findings in the face of conflicting evidence. See Johnson, 434 F.3d at 653 (reviewing court should not seek to reweigh conflicting evidence, make credibility determinations, or substitute its judgment for that of the ALJ).
Because substantial evidence supports ALJ Thawley's consideration of Dr. Picciano's opinion, the undersigned recommends that the court deny Malambri's claim on this issue.
2. Dr. Kwock's Testimony
Malambri challenges ALJ Thawley's decision to accord more weight to the testimony of a non-examining medical expert than to her treating provider.
After reviewing the entire record, Dr. Kwock identified Malambri's conditions as minimal degenerative disc and joint disease of the lumbar spine, status post lumbar spine decompression and minimal degenerative changes of the left knee. Tr. at 715 (emphasis added). He felt that Malambri's knee condition was generally normal for her age. Id.
Dr. Kwock stated that most people recover from the surgery Malambri underwent in about six weeks. Id. And during the recovery, providers would encourage them to be up and active. Id.
Dr. Kwock opined that Malambri could sit, stand, and walk for six hours, frequently lift and carry ten pounds and occasionally lift and carry 20 pounds, and occasionally operate foot controls with the bilateral lower extremities. Id. He also assessed some postural and environmental restrictions. Id. Dr. Kwock based his evaluation on the objective and musculoskeletal evidence in the record. Id. And he declined to weigh in on Dr. Picciano's assessment. Id.
ALJ Thawley assigned more probative weight to Dr. Kwock's testimony than Dr. Picciano's opinion. Tr. at 716. He noted that Dr. Kwock was a specialist in orthopedics who is knowledgeable about the SSA disability program and evidentiary requirements. Id. Unlike Dr. Picciano, whose contact with Malambri ended in June 2017, Dr. Kwock had the chance to review the entire record. Id. And ALJ Thawley remarked that Dr. Kwock's assessment of Malambri's functional abilities was well-supported by the clinical findings and Malambri's daily activities. Id. But he included more restriction in his RFC assessment than Dr. Kwock. Tr. at 715.
Malambri does not appear to contest Dr. Kwock's testimony. Instead she disputes only that the findings of a non-examining source received more weight than Dr. Picciano, a treating provider. But an ALJ may give greater weight to the opinions of non-treating and non-examining sources if the opinion provides “sufficient indicia of ‘supportability in the form of a high-quality explanation for the opinion and a significant amount of substantiating evidence, particularly medical signs and laboratory findings; consistency between the opinion and the record as a whole; and specialization in the subject matter of the opinion.'” Woods v. Berryhill, 888 F.3d 686, 695 (quoting Brown v. Comm'r of Soc. Sec. Admin., 873 F.3d 251, 268 (4th Cir. 2017)). “While examining source opinions are generally entitled to more weight than non-examining source opinions, ‘the testimony of a non-examining physician can be relied upon when it is consistent with the record[.]'” Exum v. Saul, No. 5:19-CV-39-D, 2019 WL 5208851, at *5 (E.D. N.C. Sept. 13, 2019) (quoting Tanner v. Comm'r of Soc. Sec., 602 Fed.Appx. 95, 101 (4th Cir. 2015)), adopted by, No. 2019 WL 5206249 (E.D. N.C. Oct. 15, 2019).
Dr. Kwock pointed to her surgery and the objective imaging studies of her lumbar spine and bilateral knees. Tr. at 775-76. In assessing her functional limitations and concluding that Malambri's impairments suited a reduced range of light work, Dr. Kwock noted the minimal degenerative changes in her lumbar spine and the benign post-operative x-rays demonstrating non-severe degenerative changes. Tr. at 781. And restricting her climbing and crouching accounts for her bilateral chondromalacia, a condition that is problematic with flexing and bending the knees but not an issue with extension or walking. Tr. at 782.
This testimony thus provides a “sufficient indicia of supportability” for Dr. Kwock's assessment. So ALJ Thawley could assign more weight to his opinion than Dr. Picciano's statement.
Malambri's argument lacks merit because substantial evidence support ALJ Thawley's consideration of Dr. Kwock's testimony and medical opinion. So the undersigned recommends that the court deny her claim on this issue.
E. Residual Functional Capacity
Malambri contends that ALJ Thawley's RFC is unsound because he erred in considering Dr. Picciano's 2016 Medical Source Statement. The Acting Commissioner asserts that the RFC sufficiently reflects all of Malambri's well-supported limitations. The undersigned finds that substantial evidence supports ALJ Thawley RFC determination.
The RFC is a determination, based on all the relevant medical and non-medical evidence, of what a claimant can still do despite her impairments; the assessment of a claimant's RFC is the responsibility of the ALJ. See 20 C.F.R. §§ 404.1520, 404.1545, 404.1546; SSR 96-8p, 1996 WL 374184, at *2. If more than one impairment is present, the ALJ must consider all medically determinable impairments, including medically determinable impairments that are not “severe,” when determining the claimant's RFC. Id. §§ 404.1545(a), 416.945(a). The ALJ must also consider the combined effect of all impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity. Id. § 404.1523; see Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989) (“[I]n evaluating the effect[] of various impairments upon a disability benefit claimant, the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them.”).
The ALJ must provide “findings and determinations sufficiently articulated to permit meaningful judicial review.” DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983); see also Wyatt v. Bowen, 887 F.2d 1082, 1989 WL 117940, at *4 (4th Cir. 1989) (per curiam). The ALJ's RFC determination “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).” Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting SSR 96-8p). Furthermore, “[t]he record should include a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence.” Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013). Fourth Circuit precedent “makes it clear that it is not [the court's] role to speculate as to how the ALJ applied the law to [her] findings or to hypothesize the ALJ's justifications that would perhaps find support in the record. Fox v. Colvin, 632 Fed.Appx. 750, 755 (4th Cir. 2015).
Social Security Ruling 96-8p explains how adjudicators should assess residual functional capacity. The Ruling instructs that the residual functional capacity “assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions” listed in the regulations. “Only after that may [residual functional capacity] be expressed in terms of the exertional levels of work, sedentary, light, medium, heavy, and very heavy.” SSR 96-8p. The Ruling further explains that the residual functional capacity “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).” Id.
There is no “per se rule requiring remand when the ALJ does not perform an explicit function-by-function analysis[.]” Mascio, 780 F.3d at 636. But “[r]emand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review.” Id. (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)). The function-by-function requirement can be satisfied by reference to a properly conducted analysis by a state agency consultant. See, e.g., Linares v. Colvin, No. 5:14-CV-00129, 2015 WL 4389533, at *3 (W.D. N.C. July 17, 2015) (“Because the ALJ based his RFC finding, in part, on the function-by-function analysis of the State agency consultant, the ALJ's function-by-function analysis complied with [Soc. Sec. Ruling] 96-8p.” (citing Lemken v. Astrue, No. 5:07-CV-33-RLV-DCK, 2010 WL 5057130, at *8 (W.D. N.C. July 26, 2010))).
As noted above, ALJ Thawley's RFC found that Malambri can perform light work with postural and environmental limitations. Tr. at 712.
Malambri premises her argument on her earlier claim-that ALJ Thawley erred in evaluating the medical opinion evidence and failed to incorporate the limitations assessed into the RFC. But the undersigned rejected this argument and has found that substantial evidence supports ALJ Thawley's consideration of the Dr. Picciano's opinion. Because her present argument parallels her unsuccessful argument about the medical opinion evidence, the undersigned finds that Malambri's claim on this issue lacks merit. So the court should deny her argument on this claim.
III. Conclusion
For all these reasons, the undersigned recommends that the court deny Malambri's Motion for Judgment on the Pleadings (D.E. 14), grant Kijakazi's Motion for Judgment on the Pleadings (D.E. 16), and affirm the Commissioner's determination.
The Clerk of Court must serve a copy of this Memorandum and Recommendation (M&R) on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals.