Opinion
C/A No.: 1:17-cv-02634-MGL-SVH
12-28-2018
John G. Rehoric, Jr., Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
This appeal from a denial of social security benefits is before the court for a Report and Recommendation ("Report") pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying his claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether she applied the proper legal standards. For the reasons that follow, the undersigned recommends that the Commissioner's decision be reversed and remanded for further proceedings as set forth herein. I. Relevant Background
A. Procedural History
On July 21, 2014, Plaintiff filed applications for DIB and SSI in which he alleged his disability began on January 1, 2013. Tr. at 250-60. His applications were denied initially and upon reconsideration. Tr. at 117-18, 148-49, 161-65, 169-75. On June 16, 2016, Plaintiff had a hearing before Administrative Law Judge ("ALJ") Marcus Christ. Tr. at 33-45 (Hr'g Tr.). The ALJ issued an unfavorable decision on August 31, 2016, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 7-25. 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 September 29, 2017. [ECF No. 1].
Plaintiff previously filed for DIB and SSI on or about September 26, 2013, for similar issues. Tr. at 223-249. These applications were denied initially and upon reconsideration in November 2013 and January 2014, and Plaintiff did not appeal these determinations. Tr. at 46-90.
B. Plaintiff's Background and Medical History
1. Background
Plaintiff was 52 years old at the time of the hearing. Tr. at 35-36. He completed the twelfth grade. Tr. at 37. His past relevant work ("PRW") was as a truck driver. Tr. at 37. He alleges he has been unable to work since January 1, 2013. Tr. at 250, 252.
2. Medical History
On January 1, 2013, Plaintiff presented to the Medical University of South Carolina ("MUSC") Hospital with chest pain. Tr. at 432-33. Plaintiff had been working on a front porch when he tripped and fell onto his left side, causing chest pain. Tr. at 433. Plaintiff reported the pain started six to twelve hours prior to his visit to the hospital. Id. Plaintiff described his pain as constant and unchanged, with a severity rating of 7/10. Tr. at 432-33. Plaintiff also had associated coughing. Tr. at 433. The records from Plaintiff's hospital visit indicated he smoked two packs a day. Id. The musculoskeletal portion of Plaintiff's physical examination showed tenderness, but no edema. Id. A chest x-ray showed upper lobe predominant emphysema without evidence of focal airspace disease or pulmonary masses, but with emphysematous changes in the right upper lung. Tr. at 437, 442-44. The x-ray also showed bilateral subsegmental lower lobe atelectasis. Id. Plaintiff was prescribed Oxycodone and Promethazine. Tr. at 434.
On March 11, 2013, Plaintiff presented to MUSC Hospital with complaints of paresthesia in his right shoulder, arm, forearm, and hand, that he had experienced intermittently over the prior three weeks, but which had increased in frequency. Tr. at 430. The paresthesia from his elbow to his hand had become constant and he had loss of sensation the prior day. Id. Plaintiff additionally reported an episode of right leg weakness and heaviness earlier in the day that had resolved. Id. Plaintiff reported weakness, numbness, and paresthesia, but denied dizziness, syncope, and headaches. Tr. at 430-31. Plaintiff was diagnosed with radicular pain, with his paresthesia consistent with cervical radiculopathy. Tr. at 431. It was suspected Plaintiff's paresthesia was from neuropathy. Tr. at 432. A computed tomography ("CT") scan of Plaintiff's head showed no intracranial abnormality or mass lesion. Tr. at 436, 440-42.
On September 15, 2013, Plaintiff presented to MUSC Hospital with complaints of atraumatic neck, back, knee, and elbow pain. Tr. at 428-30. Plaintiff reported he had experienced pain for over a month, but he denied any trauma or inciting event. Tr. at 428. Plaintiff reported associated tension headaches. Id. Plaintiff also reported he had arthritis and had been taking nonsteroidal anti-inflammatory drugs for relief. Id. Plaintiff explained his neck pain started a week prior and described the pain as moderate and achy with a severity of 8/10, exacerbated by movement and causing headaches. Id. He also reported having smoked two packs a day. Tr. at 429. In the physical examination, Plaintiff exhibited tenderness in his cervical back, but normal range of motion ("ROM") and no bony tenderness. Tr. at 429. Plaintiff's x-ray showed degenerative changes, specifically mild degenerative disc disease ("DDD") at C5-6 and C6-7. Tr. at 435-36, 438-40. Plaintiff was diagnosed with arthritis, DDD, neck pain, and tension headache. Tr. at 429. Plaintiff was given Tramadol and discharged in stable condition. Tr. at 430, 445-46.
On November 15, 2013, Plaintiff had a lumbar spine x-ray at South Carolina Diagnostic Imaging. Tr. at 448. The recorded impressions were: (1) mild to moderate DDD and mild facet arthropathy most pronounced L5-S1 and (2) mild grade 1 degenerative retrolisthesis of L5 on S1. Id.
On May 9, 2014, Plaintiff was evaluated by Caisson Hogue, M.D. ("Dr. Hogue"), with Palmetto Primary Care Physicians for complaints of joint, back, neck, arm, and hip pain. Tr. at 492. Plaintiff reported his pain had begun over three years prior. Id. Plaintiff indicated two fingers on his right hand were in pain at times. Id. Plaintiff reported right leg weakness, which was worse than his left. Id. Plaintiff also reported his mid back would "click" at times, which was painful. Id. Plaintiff described having experienced radiating right arm numbness and leg numbness. Id. Plaintiff described his pain as moderate. Id. Plaintiff reported he had neck tightness that caused headaches. Id. Plaintiff also reported leg weakness and difficulty walking up stairs. Id. Plaintiff took ibuprofen to help with his pain. Id. Dr. Hogue noted body pain in Plaintiff's musculoskeletal exam. Id. Dr. Hogue assessed headache, arthritis-multiple sites, DDD, neck and back pain, radiculopathy, general weakness, clubbing of fingers, and ordered a number of diagnostic tests. Tr. at 493. Dr. Hogue referred Plaintiff to massage therapy, prescribed Vimovo for his headaches and pain, obtained labs for his arthritis-multiple sites, obtained a magnetic resonance imaging ("MRI") of his lumbar spine for his DDD (noting one was needed for his neck), and opined pinched nerves in his lumbar spine likely caused his radiculopathy and weakness. Tr. at 493-94; see also Tr. at 502-12.
On June 16, 2014, Plaintiff presented to the emergency room at Moncks Corner Medical Center complaining of shortness of breath for two weeks. Tr. at 453-60. A CT scan of Plaintiff's chest showed no evidence of pulmonary embolism or other acute intrathoracic pathology, but did show moderate pulmonary emphysema. Tr. at 459, 496; see also Tr. at 499-500.
On June 30, 2014, Plaintiff presented to Moncks Corner Medical Center with a history of low back pain that radiated down his right leg. Tr. at 461. An x-ray of the lumbar spine from the anteroposterior showed DDD and facet arthropathy at L5-S1. Tr. at 461. It was also noted there may have been early facet arthropathy at L4-5. Id.; see also Tr. at 501.
On July 8, 2014, at a follow-up appointment with Dr. Hogue, Plaintiff complained of migraine headaches that had begun years prior, but worsened. Tr. at 489. He reported these headaches occurred three times a week and they were previously relieved by Amitriptyline and ibuprofen. Id. During the week prior, Plaintiff had three headaches with associated nausea. Id. Plaintiff also reported shortness of breath and wheezing, for which he had been evaluated in the emergency room. Id. Dr. Hogue assessed tobacco addiction, amaurosis fugax, headaches, and carotid bruit (right). Tr. at 490. Dr. Hogue ordered a CT scan and an Ultrasound Carotid Doppler Flow Study to be done within 48 hours due to his concern of amaurosis fugax, transient ischemic attacks ("TIAs"), or complex migraines, and "a fairly significant carotid [b]ruit on the right side." Tr. at 485, 490. Dr. Hogue also prescribed aspirin, Amitriptyline, Imitrex, Advair, and Chantix. Id.
On July 9, 2014, Plaintiff underwent a carotid ultrasound that showed mild atherosclerosis with no significant stenosis of the internal carotid arteries. Tr. at 495. In addition, Plaintiff underwent a normal brain CT examination. Tr. at 498.
On July 21, 2014, Plaintiff began treatment at Select Physical Therapy for chronic lower back pain. Tr. at 467-71. Plaintiff reported he had lower back pain for at least one year due to a fall when his right knee gave out, and he continued to have right lower extremity weakness, as well. Tr. at 467. Plaintiff also reported he could not rely on his right lower extremity, as it "g[ave] out on him" and caused him to fall occasionally. As such, he used a cane to walk for stability and safety. Tr. at 467. Plaintiff reported prior to his condition, he was able to complete his basic care activities of daily living ("ADLs") independently without difficulty. Id. Following the onset of his symptoms, Plaintiff reported being able to complete his basic care, but with increased time and difficulty. Id. Upon examination, Plaintiff had reduced strength and mobility in his lower extremities. Tr. at 467-68. Plaintiff's straight leg raise ("SLR") test was negative, but he was "unable to tolerate" the flexion, abduction, and external rotation ("FABER") testing "due to [right] hip pain with [external rotation]." Tr. at 467. Plaintiff "present[ed] with a significant biomechanical deformity and subsequent injury." Tr. at 470. Plaintiff required "skilled physical therapy to address the problems identified," but his potential for rehabilitation was good. Tr. at 468. Plaintiff participated in therapeutic exercise during his visit. Id. A plan was created to work toward decreasing Plaintiff's pain, increasing Plaintiff's lower extremity strength, and improving Plaintiff's ROM in his lumbar spine through visits once a week for one month. Tr. at 468-69.
On July 28, 2014, Petitioner attended a physical therapy session at Select Physical Therapy for 60 minutes. Tr. at 472-74. The visit assessment revealed he exhibited "good tolerance to all activity without reports of increased [lower back pain]." Tr. at 437. Mardell M. Bates, a physical therapist, noted Plaintiff would continue with his current rehabilitation program. Tr. at 474.
On August 4, 2014, Petitioner attended a physical therapy session at Select Physical Therapy for 51 minutes. Tr. at 475-77. The visit assessment revealed Plaintiff reported no reduction in pain, but his body mechanics and lumbar strength had improved. Tr. at 476. The objective examination reflected no change in Plaintiff's lower extremity or spine since his last visit. Tr. at 478-79 (reflecting twenty degrees for his extension and flexion and forty degrees for his rotation on both visits). Plaintiff was instructed to follow up with his doctor regarding his progress. Id.
On August 14, 2014, Plaintiff was discharged from Select Physical Therapy. Tr. at 478-79. Plaintiff's prognosis at the time of discharge was noted as fair. Tr. at 479. Plaintiff reported no improvement with his pain, but had improved mobility, body mechanics, and lumbar strength. Id. Plaintiff indicated he had difficulty with the payment per therapy session. Id. Plaintiff was discharged to continue his exercise program and pain management at home. Id.
On August 18, 2014, Dr. Hogue evaluated Plaintiff for complaints of elevated blood pressure, sweating, and dizziness. Tr. at 486-88. Plaintiff reported he continued to have migraine headaches for years, but the Amitriptyline had reduced them from four times a week to twice a week. Tr. at 486. Plaintiff reported Amitriptyline caused him to have a temper and potentially caused him to sweat. Id. Plaintiff also reported pain in his back, neck, and fingers, numbness in his right arm and legs, weakness in his legs, and headaches. Id. His emphysema had improved and Symbicort and Albuterol were helpful in relieving his symptoms, but a CT scan still showed moderate emphysema. Id. Dr. Hogue noted x-rays of Plaintiff's neck and back showed DDD. Tr. at 486. Dr. Hogue assessed hypertension-benign essential, back pain, radiculopathy (uncontrolled), weakness (uncontrolled). He adjusted Plaintiff's medications. Tr. at 486-88. Dr. Hogue also noted Plaintiff's back pain had not improved and scheduled an MRI, "as he w[ould] likely need epidural steroid injections." Tr. at 488. Dr. Hogue also noted Plaintiff had a follow-up appointment scheduled with his neurologist for his migraine headaches. Id.
On September 2, 2014, Plaintiff presented to the emergency department of Trident Regional Medical Center with complaints of headache, dizziness, difficulty with balance, and slurred speech. Tr. at 519; see also Tr. at 626-38. The notes from Plaintiff's visit indicated he was normal when he awoke that morning, and he drove his wife to work. Id. At that time, his wife noticed Plaintiff's eyes were drooping, his tongue seemed swollen, and she could not understand his speech. Id. Plaintiff tried to stand, but had trouble with his balance and was taken to the emergency room. Id. Plaintiff reported headache and dizziness. Tr. at 520. Plaintiff's National Institute of Health ("NIH") stroke score was zero. Tr. at 519-20. An electrocardiogram ("ECG") report was borderline. Tr. at 531. A CT scan of Plaintiff's head was normal. Tr. at 523, 529. A portable chest exam showed no acute thoracic pathology. Tr. at 523, 530. An MRI of Plaintiff's brain was normal with no evidence of acute intracranial hemorrhage, mass, or infarct. Tr. at 524, 528. The primary impression recorded was altered mental status. Tr. at 524. Plaintiff was discharged in stable condition. Tr. at 525.
On September 22, 2014, Karen Raduazo, M.D. ("Dr. Raduazo"), a neurologist at Palmetto Primary and Specialty Care Physicians, evaluated Plaintiff for migraine headaches. Tr. at 537. Plaintiff described his symptoms from September 2, 2014, and Dr. Raduazo assessed him for migraine headaches and a possible TIA. Tr. at 537-38. Plaintiff reported he had five headaches the week prior, but only one headache that week. Tr. at 538. He also reported Sumatriptan helped him. Id. Dr. Raduazo decided to continue Plaintiff on Propranolol and Imitrex. Id. Dr. Raduazo indicated the etiology of Plaintiff's most recent episode of slurred speech was unclear. Id. Dr. Raduazo planned to review Plaintiff's previous test results and conduct further testing. Id. She noted potential causes could be a TIA, seizure, or complex migraine. Id.
See Licensee Look-Up, South Carolina Department of Labor, Licensing, and Regulation, https://verify.llronline.com/LicLookup/Med/Med2.aspx?LicNum=34445&cdi=350&bk=12155921-a1d6-42f5-8be3-52e5d2f3c8e4-81d68 (last visited Dec. 5, 2018) (providing Dr. Raduazo specializes in neurology). A court may take judicial notice of factual information located in postings on government websites. See Phillips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (stating a court may "take judicial notice of matters of public record").
On October 7, 2014, Plaintiff presented to MUSC for evaluation of an unspecified transient cerebral ischemia. Tr. at 586-88. He complained of dizziness, headaches, and shortness of breath. Tr. at 587. He wore a Holter monitor and the conclusion revealed sinus rhythm and occasional premature atrial contraction ("PACs") with rare premature ventricular contraction ("PVC"). Tr. at 587.
On October 15, 2014, Plaintiff underwent pulmonary function testing at Roper Saint Francis Hospital. Tr. at 540-45. The following results were recorded:
Spirometry is performed in repeated fashion with [] repeatable results on this individual. The flow volume curve was also determined. Bronchodilator was administered. The series of spirogram's all showed the presence of normal airway mechanics and reproducibility. The vital capacity and [forced expiratory volume in 1 second] fall within [] acceptable predicted ranges. Flow volume curve shows a normal pattern. No obstructive or restrictive abnormality is identified.Tr. at 544.
On November 12, 2014, an x-ray of Plaintiff's knee showed mild osteoarthrosis of the right knee, anterior soft tissue swelling, and suggested a small knee joint effusion. Tr. at 552. The x-ray further showed smooth contour abnormality of the proximal tibia and fibula, suggesting remote trauma or stress changes. Id. There was no acute fracture line. Id.
On November 18, 2014, Temisan L. Etikerentse, M.D. ("Dr. Etikerentse"), performed a consultative examination of Plaintiff. Tr. at 554-58. Plaintiff reported back and neck pain since 2013. Tr. at 554. Plaintiff also reported the back pain radiated down his right leg to his foot. Id. Plaintiff had numbness and tingling in his right thigh and his feet. Id. Plaintiff reported the neck pain radiated down his right arm. Id. Additionally, Plaintiff complained of pain in his knees and arms. Id.
Dr. Etikerentse noted no shots, injections, or nerve blocks had been administered to alleviate Plaintiff's pain, but he had attended physical therapy for his back and received some pain relief with Tramadol and Vimovo. Id. Dr. Etikerentse also noted Plaintiff had associated migraine headaches. Id. Dr. Etikerentse listed migraines, chronic obstructive pulmonary disease ("COPD"), and hypertension as additional medical conditions. Id. Dr. Etikerentse noted Plaintiff had some shortness of breath and he walked with a cane. Tr. at 555. Plaintiff's ROM was reduced in his neck and lumber spine. Tr. at 555-56. Plaintiff had no tenderness in his cervical spine, but some tenderness in his lumbar spine. Tr. at 556. Plaintiff also had a normal ROM in his upper extremities, and a grip strength of 5/5. Id. According to Dr. Etikerentse, Plaintiff was able to perform both fine and gross movements without any difficulty. Id. Plaintiff had negative SLR tests bilaterally. Id. Plaintiff was able to walk on his toes, heels, and heel-to-toe. Id. Plaintiff squatted without difficulty. Id. Dr. Etikerentse provided the following assessment:
[DDD]. He had no imaging studies of his neck, but the pain is less in his neck than his back. The pain is 3/10. He has normal grip strength of upper extremities. No particular radicular patterns noted. The patient does have degenerative disease in his lumbar spine as shown on the x-ray. However, has negative [SLR] test [and] slight reduction in [ROM] of his lumbar spine. He had pain with prolonged sitting, standing, and bending. He may also benefit from imaging studies as well as an MRI.Id.; see also Tr. at 557-58 (providing ROM chart and reflecting the following limitations: cervical spine with 40/50 degrees flexion, 40/60 degrees extension, 30/45 degrees lateral flexion, and 60/80 degrees rotation and lumbar spine with 70/90 degrees flexion, 20/25 degrees extension, and 20/25 degrees lateral flexion).
On December 1, 2014, Katrina B. Doig, M.D. ("Dr. Doig"), an agency medical consultant, completed a Residual Functional Capacity ("RFC") Assessment of Plaintiff. Tr. at 97-101, 111-14. Dr. Doig determined Plaintiff had exertional, postural, manipulative, and environmental limitations. Id. According to Dr. Doig, Plaintiff could lift, carry, push, or pull twenty pounds occasionally and ten pounds frequently. Id. Plaintiff could stand, walk, or sit for six hours in an eight-hour workday and occasionally climb ramps or stairs, balance, stoop, kneel, crouch, or crawl, but never climb ladders, ropes, or scaffolds. Id. Dr. Doig opined Plaintiff was limited to occasional overhead reaching with his upper extremities. Id. Dr. Doig indicated Plaintiff needed to avoid concentrated exposure to fumes, odors, dusts, gases, poor ventilation, and hazards, such as machinery and heights. Id.
On December 22, 2014, Dr. Hogue evaluated Plaintiff for complaints of dizziness and nausea. Tr. at 564. Plaintiff reported elevated blood pressure and frequent snoring with gasping at night. Id. Plaintiff felt off balance. Id. Plaintiff reported fatigue, weakness, nausea, headaches, and dizziness, but denied shortness of breath and joint, chest, neck, or back pain. Tr. at 564. Plaintiff reported his history of DDD, arthritis, migraine headaches, COPD, and carotid atherosclerosis. Tr. at 565. Dr. Hogue assessed Plaintiff for hypertension and snoring. Id. Dr. Hogue ordered testing, referred Plaintiff to a sleep lab, and prescribed Losartan. Id.; see also Tr. at 566-68.
On December 24, 2014, Plaintiff completed a "Headache Questionnaire" wherein he reported seven tension headaches and two or more complex migraine headaches per week, explaining his tension headaches were caused by his arthritis and DDD in his neck and he was uncertain as to the cause of his complex migraines, but noted stress and bright light made them worse and the symptoms required him to lay down in a dark, quiet room. Tr. at 377. Plaintiff also reported headaches affected his ability to do routine activities at least four days a week, with tension headaches lasting two to three hours and complex migraines lasting twelve hours to two days. Id. Plaintiff noted he took Vimovo twice a day for his tension headaches and Propranolol twice a day and Sumatriptan when symptoms occurred for his complex migraines. Id.
The undersigned notes the medical records do not appear to consistently make distinctions between tension headaches or complex migraine headaches and neither does the ALJ. See, e.g., Tr. at 16 (providing the ALJ's notation, "[w]hen [Plaintiff] had a headache, he would lie down in a dark quiet room"). Therefore, the undersigned has considered the mention of headaches to refer to migraine headaches as well, unless specifically noted otherwise.
On March 25, 2015, James Upchurch, M.D. ("Dr. Upchurch"), an agency medical consultant, reconsidered Plaintiff's claims, due to allegations of worsening conditions and provided an RFC Assessment. Tr. at 128-31. Dr. Upchurch indicated Plaintiff had exertional limitations of light work, consistent with Dr. Doig's RFC assessment. Tr. at 128. Dr. Upchurch also indicated Plaintiff had the following postural limitations: he could never climb ladders, ropes, or scaffolds, but could occasionally climb ramps or stairs, balance, stoop, kneel, or crawl. Tr. at 128-29. Contrary to Dr. Doig's assessment, Dr. Upchurch opined Plaintiff could frequently crouch and had no manipulative limitations instead of being limited to occasionally crouching or reaching overhead with his upper extremities. Tr. at 129. In addition, as to Plaintiff's environmental limitations, Dr. Upchurch opined Plaintiff should avoid concentrated exposure to extreme cold and heat, vibration, and hazards, but there were no limits on his exposure to fumes, odors, gases, and poor ventilation, in contrast to Dr. Doig's assessment. Id. Yet, Dr. Upchurch noted "[t]he initial level light RFC is correct and there is no objective medical evidence that prompts a substantial change in physical limitations." Tr. at 130. Dr. Upchurch concluded "[d]ue to new allegations and [medical record evidence], a new RFC has been entered into the file." Tr. at 130-31; see also Tr. at 142-45.
Of concern, the undersigned notes Dr. Upchurch appears to combine Plaintiff's report with another's report. For example, he states in one sentence Plaintiff is able to drive alone, but later states "[n]ot able to drive, use public transportation," refers to him as a female in some portions, and states he only takes over-the-counter medications in the explanation portion of the RFC. Tr at 130.
On July 13, 2015, Plaintiff presented to the emergency department at MUSC with chest pain. Tr. at 576-85. Plaintiff described chest pressure and a sharp, shooting pain that radiated up his neck and left shoulder. Tr. at 580. Plaintiff reported experiencing sweating when the chest pain began the prior day, but it had resolved by the time he presented. Id. Plaintiff reported right arm numbness and further explained he had a "'pinched nerve in [his] neck and sometimes that cause[d] it.'" Id. An electrocardiogram ("ECG") was borderline, but a chest x-ray showed no evidence of acute cardiopulmonary disease. Tr. at 577, 583. Plaintiff had normal ROM, but wheezed during his chest exam. Tr. at 582. Plaintiff was diagnosed with COPD. Tr. at 582. It was noted a prior triple rule out was negative. Id. He had no ECG changes, negative troponins, and a recent negative stress test. Tr. at 584. Plaintiff was discharged with an Albuterol inhaler. Tr. at 583-84.
On August 4, 2015, Plaintiff presented to an emergency room at Trident Medical Center with complaints of chest pain, shortness of breath, and high blood pressure. Tr. at 611-25. Plaintiff reported his symptoms had started the day before and were intermittent. Tr. at 614-15. Plaintiff described the pain as a twinge or flutter that radiated to both sides of his neck, but he denied any other symptoms at that time. Tr. at 615. A portable chest x-ray showed no acute cardiopulmonary disease. Tr. at 619, 625. Plaintiff was discharged following a negative cardiac work up and a determination his hypertension was stable. Tr. at 620.
On May 9, 2016, Plaintiff presented to Carolina Pain Physicians complaining of neck, back, and thoracic pain. Tr. at 570-74. Plaintiff rated the severity of his pain as 8/10 that improved with rest, but worsened with activity and prevented him from doing chores, such as vacuuming or yard work. Tr. at 570-71. Plaintiff described his neck pain as "aching, throbbing, and tingling" sensations that radiated up his right upper extremity, had lasted for three years, and was associated with weakness. Tr. at 570. He described his back pain as "aching, throbbing, and constant" that radiated down his right lower extremity, had lasted three years, and was associated with muscle spasms. Id. He described his thoracic pain as "sharp, shooting, and constant," had lasted for six months, and was associated with muscle spasms. Tr. at 570-71. Plaintiff reported general weakness and muscle cramps, but denied headaches or seizures. Tr. at 571.
Upon physical examination, Plaintiff had coarse breath sounds. Id. He had dermatomal deficits on the right in C-5, C-6, L-4, L-5, and S-1. Id. His Spurling test and SLR test were both positive on the right. Id. It was noted Plaintiff "ambulate[d] with cane assistance, antalgic: favoring the right." Tr. at 572. Plaintiff had tenderness to palpation in the cervical, lumbar, and thoracic spine. Id. Plaintiff's ROM was restricted in the cervical and lumbar spine, but his upper and lower extremities exhibited 5/5 strength. Id. Plaintiff's Tramadol was discontinued, he was prescribed Norco, and images of his spine were ordered. Id.
"The Spurling test is a well-recognized provocative test that is routinely used in the evaluation of neck pain and cervical radiculopathy." Spurling Test, National Center for Biotechnology Information Database, available at https://www.ncbi.nlm.nih.gov/books/NBK493152/ (last visited Dec. 4, 2018).
On May 24, 2016, Plaintiff presented to the emergency room at Moncks Corner Medical Center complaining of chest pain, chest pressure, nausea, and shortness of breath. Tr. at 589-97. Plaintiff reported his symptoms had begun three days prior and gradually worsened. Tr. at 590. His pain radiated to his neck and left shoulder. Id. Plaintiff also reported diaphoresis, chest pain, dyspnea, nausea, chronic back and joint pain, and headache, but denied other symptoms. Tr. at 599. Petitioner noted he was a current smoker, but had decreased from two packs to half a pack per day. Tr. at 592, 598. A portable chest exam showed no radiographic evidence of acute cardiopulmonary disease. Tr. at 595, 600, 608. Plaintiff reported feeling better after being given Aspirin and Nitropaste. Tr. at 596. Plaintiff was transferred to Trident Medical Center for cardiac observation overnight. Tr. at 598, 600-10.
On May 25, 2016, Plaintiff underwent a nuclear medicine stress test. Tr. at 609-10. The findings were negative for ischemia with no ischemic changes, no perfusion defects, and no diagnostic evidence for left ventricular regional abnormality. Tr. at 610. The recorded impressions were as follows: "Normal study after pharmacologic stress. Myocardial perfusion imaging was normal at rest and with stress. Left ventricular systolic function was normal. The calculated left ventricular ejection fraction was 67%." Id. Plaintiff was subsequently discharged. Id.
C. The Administrative Proceedings
1. The Administrative Hearing
a. Plaintiff's Testimony
At the hearing on June 16, 2016, Plaintiff testified he lived with his wife and child, who was 16 years old and had autism. Tr. at 36, 41-42. Plaintiff testified he was 52 years old, had completed the twelfth grade, and previously worked as a truck driver. Tr. at 36-37. Plaintiff explained he drove a box truck and made deliveries, but he no longer had a commercial driver's license because he was unable to pass the physical examination. Tr. at 37, 41. However, he was able to obtain a standard driver's license. Tr. at 41.
Plaintiff testified he had breathing issues, was diagnosed with emphysema previously, and was told he had COPD recently. Tr. at 38, 41. He quit smoking the prior month and used an inhaler that helped his symptoms. Tr. at 38. Plaintiff explained the main source of pain was his back, and he had pinched nerves, DDD, and osteoarthritis. Tr. at 39-40, 43. Plaintiff testified he took medications for these issues and was scheduled for an epidural injection for his back the following month. Tr. at 40. Plaintiff explained he only had three injections a year, and he "had to choose between [his] neck or [his] back so [he] started with [his] neck" to "ease some of [his] headaches." Tr. at 40. Plaintiff testified he was diagnosed with migraine headaches and had them four to five days a week, but he was uncertain what triggered them. Tr. at 40-41. Plaintiff also testified he had pain in his right knee and issues with his blood pressure. Tr. at 41.
Plaintiff testified, on a typical day, he woke up, ate and made breakfast for his son, cleaned up the kitchen, and "kind of watch[ed] out for" his son, who stayed home and attended school online due to his condition. Tr. at 39, 41-42. Plaintiff explained he went grocery shopping, but he used a motorized cart. Tr. at 42. He could walk for 100 feet before he needed to rest. Tr. at 38. He estimated he could lift less than thirty pounds, and, if he tried to pick up a gallon of milk, his back would go out. Tr. at 39. He could sit or stand for thirty minutes at a time. Tr. at 39. He was able to perform his own personal care, but his wife helped him put on his socks and shoes. Tr. at 39. He testified he could clean the kitchen after breakfast, but he was unable to sweep or perform other household chores due to his back. Tr. at 39-40.
b. Vocational Expert's Testimony
Vocational Expert ("VE") Dawn Bergren reviewed the record and testified at the hearing. Tr. at 43-44. The VE categorized Plaintiff's PRW as a "light truck driver," Dictionary of Occupational Titles ("DOT") number 906.683-022, with a medium exertional level, but performed as heavy and a Specific Vocational Preparation ("SVP") of 3. Tr. at 43. The ALJ described a hypothetical individual of Plaintiff's age, education, and vocational profile who could perform light work, occasionally climb ramps or stairs, balance, stoop, kneel, and crawl, and frequently crouch, but not climb ladders, ropes, or scaffolds. Tr. at 44. However, the individual must avoid concentrated exposure to extreme cold and heat, excessive vibration, fumes, odors, dust, gases, use of moving machinery, and unprotected heights. Tr. at 44. In addition, the individual would be limited to jobs that could be performed "while using a cane held assistive device but only for uneven terrain and prolonged ambulation." Tr. at 44. The VE testified the hypothetical individual could not perform Plaintiff's PRW. Id. The ALJ asked whether there were any other jobs in the national economy that the hypothetical person could perform. Id. The VE identified cashier II, DOT number 211.462-010, inspector and hand packager, DOT number 559.687-074, and mail clerk, DOT number 209.687-026, all light work with an SVP of 2. Tr. at 44. The VE testified there were 1,188,000 jobs, 335,000 jobs, and 74,000 jobs available in the national economy for these positions, respectively. Id.
The undersigned notes the ALJ's decision reflects a modification to this specific limitation, stating Plaintiff was "limited to jobs, which can be performed while holding a hand[-]held assistive device for ambulation on uneven ground." Tr. at 14.
The ALJ posed a second hypothetical with the same profile and restrictions, but, "due to a combination of medical conditions and associated pain," the individual would be "off task for more than an hour a day in addition to regular breaks." Id. The VE testified this additional limitation would preclude all jobs. Id.
The ALJ posed a third hypothetical by inquiring if positions would be available for an individual with the same initial profile and restrictions, but who missed more than two days of work per month on a regular basis due to his medical conditions or pain, and the VE responded it would preclude all positions. Id.
2. The ALJ's Findings
In his decision dated August 31, 2016, 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, 2015.
2. The claimant has not engaged in substantial gainful activity since January 1, 2013, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe combination of impairments: degenerative disc disease (DDD), emphysema, and migraine headaches (20 CFR 404.1520(c) and 416.920(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except that he cannot climb ladders, ropes, or scaffolds. He can occasionally climb ramps, stairs, balance, stoop, kneel, and crawl. The claimant can frequently crouch. He is limited to jobs which can be performed while holding a hand held assistive device for ambulation on uneven ground. The claimant must avoid concentrated exposure to extreme heat and cold, excessive vibration, and fumes, odors, and dusts. He must avoid concentrated use of moving machinery and exposure to unprotected heights.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on July 30, 1963 and was 49 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date. The claimant subsequently changed age category to closely approaching advanced age (20 CFR 404.1563 and 416.963).Tr. at 12-18. II. Discussion
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from January 1, 2013, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds, as well as sitting, standing, or walking for 6 hours each in an 8-hour workday.
Plaintiff alleges the Commissioner erred for the following reasons:
1) the ALJ failed to make any findings about how migraine headaches affected Plaintiff's ability to sustain work activity; and
2) the ALJ failed to resolve apparent conflicts between the DOT and the VE's testimony pursuant to SSR 00-4p.
The Commissioner counters that substantial evidence supports the ALJ's findings and 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:
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 a continuous period of not less than 12 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 (1983) (discussing considerations and noting "need for efficiency" in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity; (2) whether he has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents him from doing substantial gainful employment. See 20 C.F.R. §§ 404.1520, 416.920. These considerations are sometimes referred to as the "five steps" of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (providing that if the Commissioner can find claimant disabled or not disabled at any step, the Commissioner may make a determination and not go on to the next step).
The Commissioner's regulations include an extensive list of impairments ("the Listings" or "Listed impairments") the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. §§ 404.1525, 416.925. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, he will be found disabled without further assessment. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that his impairments match several specific criteria or are "at least equal in severity and duration to [those] criteria." 20 C.F.R. §§ 404.1526, 416.926; see Sullivan v. Zebley, 493 U.S. 521, 530-31 (1990); see also 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 PRW to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. §§ 404.1520(h), 416.920(h).
A claimant is not disabled within the meaning of the Act if he can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. §§ 404.1520(a), (b), (f), 416.920(a), (b), (f); 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 the claimant can perform alternative work and such work exists in the national 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 (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. Richardson, 402 U.S. at 390. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. at 401 (citation omitted); 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). "In reviewing for substantial evidence, we do not undertake to reweigh conflicting evidence, make credibility determinations, or substitute our judgment for that of the [ALJ]." Johnson, 434 F.3d at 653 (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996)). 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). "If the reviewing court has no way of evaluating the basis for the ALJ's decision, then 'the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.'" Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013).
B. Analysis
1. RFC Assessment
Plaintiff argues the ALJ correctly found his DDD, emphysema, and migraine headaches were a "severe combination of impairments," but failed to include in "his RFC findings or in the body of his decision any assessment of how chronic migraine headaches affected [his] ability to perform basic work activities." [ECF No. 20 at 7-8]. Plaintiff points to the evidence showing he experienced headaches every week, with episodes lasting hours to days, and the VE's testimony that employment would be precluded for someone who was off task for more than an hour a day in addition to normal breaks or absent from work more than two days a month on a consistent basis. Id. at 8.
The Commissioner responds the ALJ's RFC assessment "accounted for Plaintiff's migraines and included all limitations supported by the record as a whole." [ECF No. 22 at 4]. The Commissioner asserts the ALJ recounted Plaintiff's treatment for headaches, noted his medication decreased their frequency, and accounted for them by including environmental restrictions (such as no concentrated exposure to vibrations, fumes, odors, dust, moving machinery, or unprotected heights) in the RFC. Id. The Commissioner also asserts Plaintiff fails to identify additional limitations that should have been included and did not raise this argument to the ALJ, so it should be rejected. Id. at 4-5.
Plaintiff replies the Commissioner's response amounts to post hoc rationalization that should be rejected because the ALJ "provided no explanation in his decision linking his environment[al] RFC limitations to the migraine headache impairment." [ECF No. 27 at 1-2]. In addition, Plaintiff counters the "environmental RFC limitations have no relationship with the primary symptoms of migraine headaches," such as light and noise sensitivity. [ECF No. 27 at 2]. Plaintiff argues his allegations of error were not waived by his prior attorney's failure to raise them to the ALJ and the Commissioner's citation to unreported cases or case law in other circuits fails to recognize distinguishing factors, other circuit case law, and recent case law in the United States Court of Appeals for the Fourth Circuit ("Fourth Circuit"). Id. at 2-5 (citing Pearson v. Colvin, 810 F.3d 204 (4th Cir. 2015)).
A claimant's RFC represents the most he can still do despite his limitations. 20 C.F.R. §§ 404.1545(a), 416.945(a). It must be based on all the relevant evidence in the case record and should account for all of the claimant's medically-determinable impairments. Id. To adequately assess an individual's RFC, the ALJ must determine the limitations imposed by his impairments and how those limitations affect his ability to perform work-related physical and mental activities on a regular and continuing basis. SSR 96-8p, 1996 WL 374184 at *7 (1996). The ALJ should consider all the claimant's allegations of physical and mental limitations and restrictions, including those that result from severe and non-severe impairments. Id. "Social Security Ruling 96-8p explains 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).'" Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting SSR 96-8p); see also Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000) (observing the ALJ "must build an accurate and logical bridge from the evidence to his conclusion").
In addition, the ALJ must "explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved." SSR 96-8p. "The RFC assessment must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medial and other evidence." Id. "[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." Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (citing Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)).
In this case, the ALJ found Plaintiff's DDD, emphysema, and migraine headaches were a "severe combination of impairments" and Plaintiff had the RFC to "perform light work," except
The regulations provide the following definition for light work:
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.20 C.F.R. § 404.1567(b); accord 20 C.F.R. § 416.967(b).
he cannot climb ladders, ropes, or scaffolds. He can occasionally climb ramps[,] stairs, balance, stoop, kneel, and crawl. [He] can frequently crouch. He is limited to jobs, which can be performed while holding a hand[-]held assistive device for ambulation on uneven ground. [He] must avoid concentrated exposure to extreme heat and cold, excessive vibration, and fumes, odors, and dusts. He must avoid concentrated use of moving machinery and exposure to unprotected heights.Tr. at 14. The ALJ provided no explanation for how these limitations accounted for each of Plaintiff's impairments. Rather, he recited,
[i]n making this finding, I have considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent . . . based on the requirements of 20 C.F.R. 404.1529 and 416.929 and SSR 96-4p. I have also considered opinion
evidence in accordance with the requirements of 20 C.F.R. 404.1527 and 416.927 and SSRs 96-2p, 96-5p, 96-6p and 06-3p.Id. However, despite this statement, the undersigned's review of the record reveals the ALJ did not comply with the applicable regulations or rulings.
Effective March 27, 2017, the Social Security Administration rescinded SSR 96-2p, 96-5p, 96-6p, and 06-3p. Rescission of SSR 96-2p, 96-5p, and 06-3p, 82 Fed. Reg. 15,263 (March 27, 2017); 20 C.F.R. § 404.1520c (2017); accord SSR 17-2p: Titles II and XVI: Evidence Needed by Adjudicators at the Hearings and Appeals Council Levels of the Administrative Review Process to Make Findings About Medical Equivalence, 82 Fed. Reg. 15,263 (March 27, 2017) (rescinding SSR 96-6p). The undersigned will review the ALJ's decision under the old rules because the new regulation is not retroactive and Plaintiff filed his claim before it took effect. See 82 Fed. Reg. 15,263 (stating the rescissions of SSR 96-2p, 96-5p, and 06-3p were effective for "claims filed on or after March 27, 2017," and rescission of SSR 96-6p was effective March 27, 2017); see also 20 C.F.R. § 404.1520c (stating "[f]or claims filed before March 27, 2017, the rules in § 404.1527 apply").
a. Medical Records and Relevant Evidence
The ALJ failed to discuss or show consideration of all the relevant evidence and explain how any material inconsistencies or ambiguities in the record were considered and resolved. SSR 96-8p.
For example, the ALJ mentioned Plaintiff's normal CT scan on July 9, 2014, but failed to mention the indication was headaches and was a result of Plaintiff reporting his migraine headaches had worsened, occurring three times a week with associated nausea. Tr. at 489, 498. Furthermore, the ALJ noted Plaintiff "reported that Sumatriptan helped decrease the frequency of his headaches," but ignored the full report that provided, "[p]rimary care stopped amitriptyline ([Plaintiff] felt 'irritable' on this med), started propranolol 40mg BID (has been on this for a few weeks). Had 5 [headaches] last week, only 1 [headache] this week. He is also on sumatriptan which helps." Tr. at 537. As Plaintiff explained in the headache questionnaire a few months after that appointment, in December 2014, he took Propranolol twice a day and only took Sumatriptan when his symptoms occurred for his complex migraines, but still had two or more migraine headaches per week. Tr. at 377. Finally, the ALJ noted Plaintiff denied headaches when he was evaluated at Carolina Pain Physicians on May 9, 2016, but ignored subsequent and more recent treatment at an emergency room in which he reported headaches on May 24, 2016. Tr. at 599.
Moreover, the regulations require the ALJ to consider all of a claimant's symptoms, including pain, and the extent the symptoms can be reasonably accepted as consistent with the objective medical and other evidence. 20 C.F.R. §§ 404.1529, 416.929 (stating various factors relevant to consider include the location, duration, frequency, and intensity of symptoms, precipitating and aggravating factors, the effectiveness of medication, and the treatment received). Other evidence includes statements or reports from a claimant, his treating or nontreating source, and others about the medical history, diagnosis, prescribed treatment, daily activities, efforts to work, and any other evidence showing how one's impairment(s) and any related symptoms affect the ability to work. Id. Notably, they "will consider all of your statements about your symptoms, such as pain, and any description you . . . may provide about how the symptoms affect your [ADLs] and your ability to work." Id.
Yet, the ALJ consistently omitted Plaintiff's report of headaches in the medical records. See, e.g., Tr. at 486 and 537 (reporting he continued to have migraine headaches for years, and the Amitriptyline had reduced them from four times a week to two times a week on August 18, 2014, but he had to stop taking it due to side effects); 519 (presenting to the emergency room with complaints of headache, dizziness, difficulty with balance, and slurred speech on September 2, 2014); 587 (reporting complaints of headaches on October 7, 2014); 564 (noting headaches on December 22, 2014).
Although the ALJ found Plaintiff's headaches were part of a severe combination of impairments and could reasonably be expected to cause some of the alleged symptoms, the ALJ nonetheless found Plaintiff's "statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record," adding Plaintiff "had conservative treatment" and participated in various ADLs, "including helping care for his autistic son." Tr. at 15.
Yet, the ALJ ignored Plaintiff's testimony that he was scheduled to receive an epidural injection for his back less than a month after the hearing and explained he only had three injections a year, so he "had to choose between [his] neck or [his] back so [he] started with [his] neck" to "ease some of [his] headaches." Tr. at 40. In addition, Plaintiff testified his son's autism was not severe and, other than making breakfast, he just "kind of watch[ed] out for" his son, who was sixteen years old and attended school online, during the day. Tr. at 39, 41-42. Simply put, the ALJ does not indicate how any of the facts he cited show Plaintiff did not suffer from his claimed symptoms.
Moreover, the ALJ's statement that Plaintiff's ability to "bath and dress himself, cook, clean, drive, play cards, go outside every day, handle[] his finances, shop for groceries, take care of his son, watch television, and read" reflected a "fairly active lifestyle" fails to acknowledge the limited extent of these activities. Tr. at 16. See Lewis v. Berryhill, 858 F.3d 858, 868 (4th Cir. 2017) ("The ALJ points to Lewis' ability to perform incremental activities interrupted by periods of rest, such as 'driv[ing] short distances of up to 30 miles, shop for groceries with the assistance of her mother or roommate, handle her finances, and watch television.' . . . The ALJ's conclusion that Lewis' activities demonstrate she is capable of work is unsupported by the record." (citing Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) ("[D]isability claimants should not be penalized for attempting to lead normal lives in the face of their limitations.")); see also Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 269 (4th Cir. 2017) ("Significantly, however, the ALJ must '"build an accurate and logical bridge from the evidence to his conclusion" that [the claimant's] testimony was not credible'—which the ALJ wholly failed to do here. For example, . . . the ALJ declared that Brown's statements about the limiting effects of his pain were inconsistent with his testimony about his activities of daily living. The ALJ noted various of Brown's activities—such as 'cooking, driving, doing laundry, collecting coins, attending church and shopping'—but did not acknowledge the limited extent of those activities as described by Brown or explain how those activities showed that he could sustain a full-time job.").
b. Frequency of Symptoms with Medication
As Plaintiff argues, the ALJ never explained how he accounted for Plaintiff's migraine headaches or made specific findings about whether they would cause him to experience episodes necessitating breaks in work and, if so, how often these events would occur. See SSR 96-8 ("In all cases in which symptoms, such as pain, are alleged, the RFC assessment must . . . [i]nclude a resolution of any inconsistencies in the evidence as a whole" and "[s]et forth a logical explanation of the effects of the symptoms, including pain, on the individual's ability to work."). Rather, after referencing some of Plaintiff's medical records and noting two records reflected Plaintiff's report that "Sumatriptan helped decrease the frequency of his headaches" on September 22, 2014, and he "denied headaches when evaluated at Carolina Pain Physicians on May 9, 2016," the ALJ simply concluded the "[RFC] assessment is supported by the weight of the evidence of record" and he was capable of light work (with the exceptions he identified). Tr. at 14, 17.
In Monroe v. Colvin, the plaintiff testified he would lose consciousness two to three times per day and would require multiple breaks because of fatigue due to narcolepsy. 826 F.3d 176, 188 (4th Cir. 2016). Although the ALJ found the plaintiff had severe impairments of sleep apnea and narcolepsy and acknowledged his impairments could reasonably be expected to cause his alleged symptoms, he made no specific findings about whether the plaintiff's impairments "would cause him to experience loss of consciousness or fatigue necessitating breaks in work and if so, how often these events would occur." Id. The Fourth Circuit concluded, "[b]ecause the ALJ never determined the extent to which [the plaintiff] actually experienced episodes of loss of consciousness and extreme fatigue, we cannot determine whether the hypothetical questions posed to the VE included all of [the plaintiff's] functional limitations, as they needed to do in order to be useful." Monroe, 826 F.3d at 188-89 (citing Hines v. Barnhart, 453 F.3d 559, 566 (4th Cir. 2006) ("In order for a vocational expert's opinion to be relevant or helpful, it must be based upon a consideration of all other evidence in the record, and it must be in response to proper hypothetical questions which fairly set out all of claimant's impairments." (alteration and internal quotation marks omitted))). The case was remanded for the ALJ "to consider [the plaintiff's] narcolepsy and apnea, and all of his other physical and mental impairments, severe and otherwise, and determine, on a function-by-function basis, how they affect his ability to work." Id. at 188.
In this case, Plaintiff testified he had migraine headaches four to five days a week. Tr. at 40. Similar to Monroe, the ALJ found migraine headaches were included in the severe combination of impairments and acknowledged his impairments could cause some of the alleged symptoms, but failed to determine the extent he experienced these headaches and the impact on his ability to work. Tr. at 14-17. At most, the ALJ determined Sumitriptan helped decrease the frequency of Plaintiff's headaches in September 2014 and he denied headaches during a medical visit on May 9, 2016. Tr. at 16. Yet, as discussed above, this notation overlooks the full report that reflected Plaintiff "[h]ad 5 [headaches] last week, only 1 [headache] this week. He is also on sumatriptan which helps." Tr. at 537. In subsequent visits, Plaintiff complained of headaches as well. Tr. at 519, 587, 564. Moreover, Plaintiff's report in a headache questionnaire completed in December 2014 reflected his ADLs were restricted four times a week due to his symptoms, his tension headaches lasted two to three hours, his complex migraines lasted twelve hours to two days, and he was taking Sumatriptan only when his symptoms occurred. Tr. at 377. The ALJ also overlooked, despite denying headaches on May 9, 2016, that Plaintiff reported to the emergency room with complaints of a headache on May 24, 2016. Tr. at 599.
Furthermore, even if the September 2014 records were the most recent documentation of Plaintiff's symptoms, the record only reflects a decrease in frequency to once a week. The undersigned notes the ALJ specifically inquired about employers' expectations regarding absenteeism and routine breaks during the hearing. Tr. at 44. The VE testified missing two days of work in a month on a regular basis or being off task for more than an hour a day in addition to regular breaks would eliminate all jobs. Id. The ALJ failed to reconcile this fact with Plaintiff's testimony or the evidence in the record. The ALJ also failed to explain how the evidence showed Plaintiff would be able to complete an eight-hour workday or a workweek, despite finding his headaches were a part of a severe combination of impairments. Tr. at 12.
Not only did the ALJ fail to discuss all the relevant evidence and explain any inconsistencies, he also failed to explain how a restriction to light work with certain exceptions accounted for Plaintiff's headaches. The ALJ overlooked Plaintiff's testimony and report that, although uncertain as to all the triggers, he knew they included light, noise, and stressful situations, but not inhaling smoke, and he had to sit in a quiet room to relieve his symptoms. Tr. at 41, 377, 486. Yet, all three positions provided by the ALJ require moderate to high noise. See also cashier II, 1991 WL 671840 (requiring moderate noise); inspector and hand packager, 1991 WL 683797 (requiring loud noise); and mail clerk, 1991 WL 671813 (requiring moderate noise). The ALJ simply did not explain how he considered the evidence of Plaintiff's headaches in assessing Plaintiff's functional limitations. In light of the ALJ's failure to incorporate known restrictions and the absence of a narrative discussion describing how the ALJ accommodated for Plaintiff's migraine headaches, the undersigned recommends the court find the ALJ did not comply with the provisions of SSR 96-8p and it is unable to determine whether substantial evidence supports his RFC assessment.
The Commissioner's argument the ALJ accounted for Plaintiff's headaches by including environmental restrictions, such as no concentrated exposure to vibrations, fumes, odors, dust, moving machinery, or unprotected heights, in the RFC is unavailing, as it was not articulated by the ALJ. "[P]rinciples of agency law limit this Court's ability to affirm based on post hoc rationalizations from the Commissioner's lawyers." Robinson ex rel. M.R. v. Comm'r of Soc. Sec., No. 0:07-3521-GRA, 2009 WL 708267, at 12* (D.S.C. 2009). "[R]egardless [of] whether there is enough evidence in the record to support the ALJ's decision, principles of administrative law require the ALJ to rationally articulate the grounds for his decision and confine our review to the reasons supplied by the ALJ." Id. (citing Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir. 2002)). Furthermore, these restrictions could easily be attributed to Plaintiff's other impairments—DDD and emphysema. Moreover, without any explanation for these limitations in relation to Plaintiff's impairments, the undersigned is unable to determine whether substantial evidence supports the ALJ's RFC assessment. Therefore, the undersigned recommends this argument be rejected.
Accord Glessing v. Comm'r of Soc. Sec. Admin., 725 F. App'x 48, 50-51 (2d Cir. 2018), as amended (Feb. 27, 2018); Hughes v. Comm'r Soc. Sec., 643 F. App'x 116, 118 (3d Cir. 2016); Radford v. Colvin, 734 F.3d 288, 294 (4th Cir. 2013); Moore v. Soc. Sec. Admin., 153 F. App'x 945, 946 (5th Cir. 2005); Hicks v. Comm'r of Soc. Sec., No. 17-5206, 2018 WL 6072336, at *13 (6th Cir. Nov. 21, 2018); Carter v. Colvin, 672 F. App'x 764, 765 (9th Cir. 2017); Bryant v. Comm'r, SSA, No. 18-4040, 2018 WL 6133387, at *5 (10th Cir. Nov. 23, 2018); Green v. Soc. Sec. Admin., Comm'r, 695 F. App'x 516, 520 (11th Cir. 2017).
Likewise, the undersigned recommends the Commissioner's argument that Plaintiff failed to identify specific additional limitations, such that the allegations amount to harmless error, be rejected. See Patterson v. Comm'r of Soc. Sec. Admin., 846 F.3d 656, 658-663 (4th Cir. 2017) ("Where an insufficient record precludes a determination that substantial evidence supported the ALJ's denial of benefits, this court may not affirm for harmless error. . . . Put simply, '[t]he ALJ's lack of explanation requires remand.' . . . [T]he dispute here arises from a problem that has become all too common among administrative decisions challenged in this court—a problem decision makers could avoid by following the admonition they have no doubt heard since their grade-school math classes: Show your work. The ALJ did not do so here, and this error rendered his decision unreviewable."). In addition, Plaintiff's symptoms of headaches at least once a week would appear to preclude work in accordance with the VE's testimony regarding an individual with more than two absences a month or one who exceeded normal break periods.
Finally, as noted by Plaintiff in his reply brief, the Commissioner's assertion he waived his argument—additional limitations or clarification should have been included in the questions posed to the VE—because he did not raise them during the hearing, fails to recognize Plaintiff's current attorney did not represent him in the prior proceedings. Moreover, the Fourth Circuit recently reiterated "[t]he Social Security Act is remedial in nature and 'unusually protective' of claimants. . . We have long recognized that the administrative hearing process is not an adversarial one, and an ALJ has a duty to investigate the facts and develop the record independent of the claimant or his counsel." Pearson v. Colvin, 810 F.3d 204, 210 (4th Cir. 2015) (citations omitted).
The Fourth Circuit has "held that '[a] necessary predicate to engaging in 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, 826 F.3d at 189 (quoting Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013)). "[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." Mascio, 780 F.3d at 636 (citing Cichocki, 729 F.3d at 177). Here, the ALJ's RFC assessment is flawed and failed to comply with appropriate rulings, applicable regulations, and Fourth Circuit precedent. In light of the foregoing, the undersigned recommends the court find it is unable to determine whether substantial evidence supports the ALJ's assessed RFC. Therefore, the undersigned recommends directing the ALJ, on remand, to adequately explain his RFC finding and consider whether to include additional limitations in Plaintiff's RFC.
b. Opinions
Although not mentioned by either party, the undersigned finds it necessary to note the ALJ failed to properly address opinion evidence in his decision.
According to SSR 96-5p, ALJs "must always carefully consider medical source opinions about any issue." SSR 96-5p. "[A]t the [ALJ] . . . level[] of the administrative review process, medical and psychological consultant findings about the nature and severity of an individual's impairment(s), including any RFC assessments, become opinion evidence." Id. ALJs "must consider these opinions as expert opinion evidence of nonexamining physicians and psychologists and must address the opinions in their decisions." Id. In Brown v. Comm'r of Social Security Admin., 873 F.3d 251, 271 (4th Cir. 2017), the Fourth Circuit recently emphasized that 20 C.F.R. § 404.1527(c) requires the ALJ to "evaluate every medical opinion presented to him, [r]egardless of its source." Id.
Here, the ALJ acknowledged the RFC assessment of Dr. Upchurch, a state agency physician, who reviewed Plaintiff's case on reconsideration and Dr. Etikerentse, a consultative examiner, who examined Plaintiff, but he failed to assign weight to these opinions or discuss them in comparison with the other evidence. Tr. at 16. In addition, the ALJ failed to mention the RFC assessment of Dr. Doig, another state agency physician. In particular, the ALJ appeared to only incorporate Dr. Upchurch's RFC assessment into his own—by limiting Plaintiff to light work with postural limitations (he could never climb ladders, ropes, or scaffolds, but could occasionally climb ramps or stairs, balance, stoop, kneel, or crawl, and frequently crouch) and environmental limitations (he should avoid concentrated exposure to extreme cold and heat, vibration, and hazards) with additional limitations of a hand-held assistive device for ambulation on uneven ground and no concentrated exposure to fumes, odors, gases, and poor ventilation. Compare Tr. at 14, with Tr. at 128-31.
However, review of the record reveals it was Dr. Doig who opined Plaintiff should be limited in his exposure to fumes, odors, gases, and poor ventilation. Tr. at 97-101, 111-14. Although the ALJ included these limitations within his RFC assessment, he failed to mention Dr. Doig's opinion or acknowledge it also included limitations to only occasional crouching or reaching overhead with both upper extremities. In addition, Dr. Etikerentse opined Plaintiff "had pain with prolonged sitting, standing, and bending" in his assessment. Tr. at 556.
An ALJ "must evaluate opinion evidence from medical or psychological consultants using all of the applicable rules in 20 CFR 404.1527 and 416.927 to determine the weight to be given to the opinion." SSR 96-5p; accord West v. Berryhill, No. 1:17-CV-1265-JMC-SVH, 2018 WL 1009254, at *13 (D.S.C. Jan. 16, 2018), report and recommendation adopted, No. 1:17-CV-01265-JMC, 2018 WL 953336 (D.S.C. Feb. 20, 2018) (citations omitted).
The ALJ's failure to weigh these opinions or explain his adoption of a portion of Dr. Doig's opinion, but not the additional postural or manipulative limitations, is particularly consequential as these limitations may impact Plaintiff's ability to perform work light work due to the walking, standing, and sitting requirements, as well as the fact all three positions provided by the VE require frequent reaching, not occasional. See 20 C.F.R. §§ 404.1567(b), 416.967(b) (providing a job in the "[l]ight work" category "requires a good deal of walking or standing" or "sitting most of the time with some pushing and pulling of arm or leg controls"), SSR 83-10; see also cashier II, 1991 WL 671840 (requiring light work and frequent reaching) inspector and hand packager, 1991 WL 683797 (same) and mail clerk, 1991 WL 671813 (same). In turn, this could also impact the ALJ's ability to rely on the VE's testimony. Pearson, 810 F.3d at 209-10 ("An expert's testimony that apparently conflicts with the [DOT] can only provide substantial evidence if the ALJ has received this explanation from the expert and determined that the explanation is reasonable and provides a basis for relying on the testimony rather than the [DOT].").
Because the ALJ did not weigh Dr. Upchurch and Dr. Etikerentse's opinions or even acknowledge the existence of Dr. Doig's opinion, it is not clear whether he intentionally dismissed the additional restrictions as inconsistent with the evidence or merely missed them. However, even if he intentionally rejected them, the absence of a reason for his rejection renders his consideration of the opinions incomplete. Therefore, the undersigned finds unavailing the argument that the ALJ considered or explained all of the relevant evidence in accordance with the rulings, regulations, and Fourth Circuit precedent. See SSR 96-8p (stating the ALJ must "explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved"). In light of the foregoing, the undersigned recommends the court find the ALJ did not examine all the relevant evidence in the case record in determining Plaintiff was capable of performing light work with the restrictions provided. See 20 C.F.R. §§ 404.1545(a), 416.945(a).
2. Additional Allegations of Error
Because the RFC assessment is to be based on all the relevant evidence in the case record (20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1)) and the undersigned has recommended the court find that some of the relevant evidence was not adequately considered or explained, the undersigned declines to address Plaintiff's additional allegations of error. 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. December 28, 2018
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).