Opinion
Civil Action No. 6:19-1554-MGL-KFM
09-02-2020
James Smith, Plaintiff, v. Andrew M. Saul, Commissioner of Social Security, Defendant.
REPORT OF MAGISTRATE JUDGE
This case is before the court for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.), concerning the disposition of Social Security cases in this District, and Title 28, United States Code, Section 636(b)(1)(B).
A report and recommendation is being filed in this case, in which one or both parties declined to consent to disposition by the magistrate judge.
The plaintiff brought this action pursuant to Sections 205(g) and 1631(c)(3) of the Social Security Act, as amended (42 U.S.C. 405(g) and 1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security denying his claims for disability insurance benefits and supplemental security income benefits under Titles II and XVI of the Social Security Act.
ADMINISTRATIVE PROCEEDINGS
The plaintiff filed applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") benefits on October 23, 2015, and November 3, 2016, respectively, alleging that he became unable to work on September 22, 2012. The applications were denied initially and on reconsideration by the Social Security Administration. On July 15, 2016, the plaintiff requested a hearing. The administrative law judge ("ALJ"), before whom the plaintiff and Benjamin Johnston, Ph.D., an impartial vocational expert, appeared on May 14, 2018, considered the case de novo, and on May 30, 2018, issued a decision finding that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 20-29). The ALJ's finding became the final decision of the Commissioner of Social Security when the Appeals Council denied the plaintiff's request for review on April 19, 2019 (Tr. 1-6). The plaintiff then filed this action for judicial review.
In making the determination that the plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant meets the insured status requirements of the Social Security Act through March 31, 2016.
(2) The claimant has not engaged in substantial gainful activity since September 22, 2012, the alleged onset date (20 C.F.R. §§ 404.1571 et seq., 416.971 et seq.).
(3) The claimant has the following severe impairments: lumbar degenerative disc disease; cervical degenerative disc disease; peripheral neuropathy; obstructive sleep apnea; low vision; recurrent hernias status post surgical repair; hypertension; and obesity (20 C.F.R. §§ 404.1520(c), 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 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 416.920(d), 416.925, 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 C.F.R. §§ 404.1567(b) and 416.967(b), except he would be limited to unskilled work; he could never climb ladders, ropes, or scaffolds; never work at unprotected heights or around dangerous machinery; never drive as a requirement of his job; he should avoid concentrated exposure to humidity, vibration, fumes, odors, dusts, gases, chemicals and other toxins, and extreme changes in temperatures; and he would be limited to occasional repetitive bending.
(6) The claimant is unable to perform any past relevant work (20 C.F.R. §§ 404.1565, 416.965).
(7) The claimant was born on November 8, 1964, and was 47 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 C.F.R. §§ 404.1563, 416.963).
(8) The claimant has at least a high school education and is able to communicate in English (20 C.F.R. §§ 404.1564, 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 C.F.R. 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 C.F.R. §§ 404.1569, 404.1569(a), 416.969, 416.969(a)).
(11) The claimant has not been under a disability, as defined in the Social Security Act, from September 22, 2012, through the date of this decision (20 C.F.R. §§ 404.1520(g), 416.920(g)).
The only issues before the court are whether proper legal standards were applied and whether the final decision of the Commissioner is supported by substantial evidence.
APPLICABLE LAW
Under 42 U.S.C. § 423(d)(1)(A), (d)(5) and § 1382c(a)(3)(A), (H)(i), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do 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." 20 C.F.R. §§ 404.1505(a), 416.905(a).
To facilitate a uniform and efficient processing of disability claims, the Social Security Act has by regulation reduced the statutory definition of "disability" to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment that meets or medically equals an impairment contained in the Listing of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1, (4) has an impairment that prevents past relevant work, and (5) can perform other work. Id. §§ 404.1520, 416.920. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. §§ 404.1520(a)(4), 416.920(a)(4).
A claimant must make a prima facie case of disability by showing he is unable to return to his past relevant work because of his impairments. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). Once an individual has established a prima facie case of disability, the burden shifts to the Commissioner to establish that the plaintiff can perform alternative work and that such work exists in the national economy. Id. (citing 42 U.S.C. § 423(d)(2)(A)). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Id. at 192.
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings "are supported by substantial evidence and were reached through application of the correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Id. In reviewing the evidence, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Id. Consequently, even if the court disagrees with Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
EVIDENCE PRESENTED
The plaintiff was 47 years old on his alleged disability onset date (September 22, 2012) and 53 years old on the date of the ALJ's decision (May 30, 2018). He has a high school education and completed two years of college, and he has past relevant work experience as a mold operator, warehouse worker, and mail sorter (Tr. 27, 368).
On September 21, 2012, Doralyn Jones, M.D., evaluated the plaintiff for complaints of hernia pain. The plaintiff reported that his hernia had become more painful and that it was preventing him from lifting heavy objects at work. He reported that he was compliant with his hypertension medication regimen. Dr. Jones noted that the plaintiff had a tender inguinal hernia on the left, which was reducible. Dr. Jones increased his dosage of lisinopril due to his blood pressure not being at goal (Tr. 344-45).
On October 17, 2012, Ajai Srinivasan, M.D., evaluated the plaintiff for complaints of a hernia in his left groin that had been present for about six months. The plaintiff reported that the bulge was intermittent and that it was getting more difficult to reduce the hernia. He had a stinging or burning sensation, and every time he coughed it seemed to descend into his testicles. He complained of abdominal pain and nausea as well as dizziness and insomnia. The plaintiff complained of some pain with and after intercourse as well. Dr. Srinivasan assessed a unilateral inguinal hernia on the left without obstruction or gangrene and scheduled a laparoscopic left inguinal hernia repair surgery. The surgery was performed on October 26, 2012 (Tr. 281-85, 307-08). On November 9, 2012, Dr. Srinivasan evaluated the plaintiff for post-surgical followup. Dr. Srinivasan noted that the incisions were clean and dry and that he did not have any problems (Tr. 279-80). On December 19, 2012, the plaintiff reported that he continued to have some pain in the right groin. He reported that he had more nagging pain and that it hurt to sleep on his side. He reported that he had trouble finding a good position to lie or sit and that he noticed a pulling sensation after picking up laundry. Dr. Srinivasan discussed post-operative wound care with the plaintiff and instructed him to return for an injection if point tenderness continued (Tr. 277-78).
On February 13, 2013, Dr. Srinivasan evaluated the plaintiff for followup of hernia repair on the left. He reported that his left groin pain was persistent. He complained of constant throbbing and pain while using the bathroom. He reported that he could not do yard work due to pain and discomfort. He complained of pain if he coughed or bent over in certain positions. Dr. Srinivasan noted that he offered the plaintiff a trigger point injection, but the plaintiff declined due to fear of needles. Dr. Srinivasan prescribed Voltaren gel (Tr. 273-76).
On March 19, 2013, Dr. Jones evaluated the plaintiff for followup of hypertension. The plaintiff reported that he had stopped lisinopril because he was having a gradually worsening cough for several months. He reported that his cough stopped once he discontinued lisinopril. He tried to restart the medicine, but the cough returned, so he stopped taking it again. The plaintiff reported that he had hernia repair surgery and had not returned to work yet. Dr. Jones assessed benign essential hypertension. Dr. Jones changed the plaintiff's medication to amlodipine and Cheratussin (Tr. 343-44).
On January 14, 2015, Dr. Srinivasan evaluated the plaintiff for complaints of testicular swelling and pain. He reported that his left testicle had been gradually swelling since August. He reported that he had an inguinal hernia repair in 2012 and felt that the hernia might be recurring. The plaintiff reported that he had been started on hydrochlorothiazide ("HCTZ") for blood pressure recently at an urgent care facility. Dr. Srinivasan noted that the plaintiff's blood pressure was 158/123 on his left wrist and 199/118 on his left forearm. The plaintiff had a very large hydrocele, but he did not appear to have a recurrent hernia, and if he did, it was very small. He had a swollen left testicle, and it was slightly tender, but the right side was completely normal. Dr. Srinivasan assessed a left hydrocele and hypertension. Dr. Srinivasan ordered an ultrasound of the plaintiff's left hydrocele and prescribed Lopressor (Tr. 270-72). On January 21, 2015, the ultrasound of the scrotum showed a large left hydrocele (Tr. 286).
On February 24, 2015, Wayne Davis Jr., M.D., at Immediate Care Center Eastside, evaluated the plaintiff to establish care. The plaintiff reported that he was taking HCTZ and metoprolol for hypertension. He reported that his blood pressure had come down a lot, but if he stood up for a long time, it would go up a little bit. He wanted to make sure his blood pressure medication was working. He reported that he had a hydrocele and that he had an appointment scheduled with a urologist. Dr. Davis assessed hypertension and prescribed losartan. Dr. Davis also gave the plaintiff a tetanus vaccine (Tr. 322-25).
On February 25, 2015, Michael Pryor, M.D., evaluated the plaintiff for scrotal swelling. The plaintiff reported that he first noticed his hydrocele six months earlier on the left side. He reported that he did not have pain on the side of his hydrocele, but it caused restriction of normal activities. The plaintiff reported that he had not had injuries to the testicles or scrotum. Dr. Pryor noted that the plaintiff had a five plus centimeter hydrocele of the left testis. Dr. Pryor assessed a left hydrocele and recommended a hydrocelectomy (Tr. 376-78).
On October 12, 2015, Dr. Davis evaluated the plaintiff for followup. The plaintiff reported that he had felt better since his medications were changed and that he had been under a lot of stress due to family loss. Dr. Davis assessed hypertension and prescribed losartan (Tr. 318-21). On November 3, 2015, Dr. Davis evaluated the plaintiff for complaints of back and neck pain. The plaintiff reported that the pain had been occurring for ten years, and he described his symptoms as moderate. He denied numbness, weakness, burning, stiffness, nausea, limping, and radiation to his leg and foot. He had occasional tingling in his fingers. He requested a referral to a urologist to fix his hydrocele. Dr. Davis noted that the plaintiff had a positive flexion, abduction and external rotation ("FABER") test bilaterally; a positive flexion, adduction, and internal rotation ("FADIR") test bilaterally; and tenderness to palpation along the L5 area. X-ray of the lumbar spine was normal. X-ray of the cervical spine was incomplete with lack of open mouth odontoid view and lack of visualization of C1-C2 articulation lateral film, no discrete acute abnormality on the provided images, and mild degenerative disc disease at C5-C6. Dr. Davis assessed hypertension, neck pain, and left hydrocele. Dr. Davis referred the plaintiff to urology, ordered a colonoscopy and an MRI of his neck, and continued him on metoprolol and losartan (Tr. 315-17, 326-27).
On November 6, 2015, the plaintiff had an MRI of the cervical spine, which showed mild foraminal stenosis present at C2-C3, C3-C4, and C4-C5 (Tr. 336-37).
In a mobility questionnaire completed on November 17, 2015, the plaintiff reported that he cooked, cleaned, tended to personal care, managed personal finances, shopped, and drove a car when not in pain. He reported that he did not use an assistive device (Tr. 202-05).
On November 20, 2015, Janet Wilson, O.D., of Bella Vision provided a statement on behalf of the plaintiff stating that she had given him a comprehensive eye examination on November 2, 2015. Dr. Wilson's impression was that the plaintiff had some mild hypertensive changes to both eyes. Dr. Wilson noted that the plaintiff's acuity was still excellent and that she had counseled him on the need for blood pressure management and monitoring. Dr. Wilson noted that she had an appointment with the plaintiff in six months to make sure his tiny dot blot hemorrhage was resolving and acuity was unchanged (Tr. 358).
On December 11, 2015, David Junker, M.D., evaluated the plaintiff at the Commissioner's request. The plaintiff complained of some neck pain for about seven to ten years that had worsened over the last two years. He related his pain to a motor vehicle accident in 1992, when he was treated for fractured neck. The plaintiff reported that his neck pain was achy and throbbing. He rated his pain at four to five out of ten. He indicated that the pain was located more on the left neck, but he also had some on the right. He reported that pain was worse with activity, bending, turning, and bouncing. The pain was better with aspirin, any kind of heat, Epsom salt soaks, or a hot shower. The plaintiff reported that the pain did not really radiate up, down, or laterally to his arms. He reported that he had occasional numbness just in the tips of all of his fingers that would last five or ten minutes and occurred about eight to ten times a month. The plaintiff complained of low back pain, which he also related to the motor vehicle accident in 1992. He reported that the pain had been worsening over the last several years and was located in his lower back, left side more than the right side, but it did not radiate. He reported that it was worse with bending and better with hot soaks. The plaintiff reported that he had a hydrocele on the left for three years, which was quite big. He indicated that it was not very painful, but bothered him because of its bulk. He reported having an ultrasound and being scheduled to see a urologist for surgical consideration. The plaintiff said he had a inguinal hernia surgically repaired on the left side in 2012. He felt like it was swollen there now, and he wondered if it had recurred. He reported he had some vision problems and was told that he needed bifocals, but that he was not able to obtain the prescription due to his financial situation. The plaintiff said he used reading glasses. He reported that he had last worked in 2012 when he had his hernia repair due to continued pain in his left groin area. He indicated that he could drive and that his daily activities mostly consisted of household chores (Tr. 367-72).
On examination, the plaintiff was able to get up and down out of a chair, on and off the examination table, and lie down and sit up under his own power. Dr. Junker noted that when the plaintiff would lie down/sit up, he did not turn sideways or evidence any pain. He displayed some mild grimacing and some mild start and stop action with some of the range of motion/strength testing, especially when turning his neck. The plaintiff had a well-healed scar in his left groin area, and he had a large hydrocele on the left side that was at least the size of a baseball and may extend up toward his groin. The plaintiff had tenderness to palpation and motion of the neck, but mostly in the muscular areas of his left and right neck. He had decreased range of motion because of the neck pain. He had some mild tenderness to palpation and motion in the lumbar area. Straight leg raises produced back pain, but were negative for reproduction of radicular type pain. Dr. Junker assessed known degenerative disk disease in the plaintiff's neck. He noted that the plaintiff really did not give a radicular history and he had no radicular findings on examination. Dr. Junker noted that the plaintiff would have moderate limitations to prolonged use of his neck. Dr. Junker noted that the plaintiff had low back pain and occasional intermittent symptoms to his legs, but negative radicular findings on examination. The plaintiff's x-ray did not show degenerative disc disease. The plaintiff had a very large hydrocele on the left that certainly would be limiting to any kind of lifting, bending, pulling, or twisting, until it was repaired. Dr. Junker noted that the plaintiff was on treatment for hypertension and hyperlipidemia, and those conditions were stable without any secondary damage known. Dr. Junker concluded that the plaintiff would have moderate limitations to prolonged use of his neck and mild limitations to persistent lifting and bending with his back (Tr. 367-72).
On January 7, 2016, Sanjitpal Gill, M.D., evaluated the plaintiff as a new patient. He complained of neck and left arm pain as well as axial lower back pain. The plaintiff also indicated some numbness and band-like feelings across the toes of his left foot. The plaintiff reported axial neck pain that radiated into his left trapezius. He indicated that his fourth and fifth fingers on both hands had some numbness. Dr. Gill diagnosed cervical spinal stenosis, cervical radiculopathy, kyphosis, and degenerative disc disease of the cervical spine and ordered C7-T1 interlaminar injections (Tr. 386-91).
On January 14, 2016, the plaintiff had an MRI of the lumbar spine, which showed partially imaged suspected degenerative change at the right sacroiliac joint (Tr. 401-02).
On January 28, 2016, Adrian Corlette, M.D., a non-examining consultant on contract to the Administration, completed a physical residual functional capacity ("RFC") assessment. Dr. Corlette found that the plaintiff was capable of performing light work with postural and manipulative limitations (Tr. 61-64).
On February 11, 2016, Dr. Gill evaluated the plaintiff for followup of neck and left arm pain after he had received an interlaminar injection on February 1st. The plaintiff reported that the injection helped for three days, stating that the first day was wonderful. The plaintiff reported that he got tired when writing and that he had left-sided symptoms including fourth and fifth finger numbness and tingling. On examination, the plaintiff had bilateral arm weakness with the left greater than right. He had a limited range of motion and stiffness in his neck. Dr. Gill scheduled nerve root blocks without steroids one week apart (Tr. 392-95, 615). On February 25, 2016, the plaintiff had a nerve root block transforaminal epidural steroid injection (Tr. 373). He had a second nerve root block transforaminal epidural steroid injection on March 1, 2016 (Tr. 374).
On March 2, 2016, Dr. Pryor evaluated the plaintiff for scrotal swelling. Dr. Pryor noted that the plaintiff elected to follow his hydrocele without intervention last year, but he would like to have it corrected now that it had become more of a nuisance to him. He reported that he still had some pain in his lower left quadrant near his hernia scar. Dr. Pryor once again recommended a hydrocelectomy (Tr. 381-84).
On March 7, 2016, Dr. Davis evaluated the plaintiff for followup. The plaintiff reported that the injections he had been getting in his neck were not working. He indicated that he wanted to go back to work. Dr. Davis assessed hypertension and herniated cervical disc (Tr. 403-05).
On March 24, 2016, Dr. Gill evaluated the plaintiff for followup after he received interlaminar injections. Dr. Gill noted that he had received selective nerve root blocks without steroids on the left at C5-C6 and C6-C7. The plaintiff reported that the C5-C6 injection provided good pain relief. The C6-C7 injection did not help him at all. The plaintiff reported that he was not currently employed, but he had been looking for jobs. He was concerned about returning to work for fear of further injuring his neck. He also stated that he and his wife had three children, and she needed help taking care of them, so returning to work was not a good option for him at that time. Dr. Gill assessed cervical spinal stenosis, herniated cervical disc, and cervical radiculopathy. On examination, the plaintiff had weakness of the wrist extensor and triceps with 4/5 strength. His pain went down his left arm. Dr. Gill recommended that the plaintiff have an anterior cervical discectomy and fusion, but the plaintiff declined surgical intervention and understood that a delay in care could lead to inferior outcomes (Tr. 396-400).
In an adult function report completed in April 2016 in connection with his claim for disability benefits, the plaintiff reported that he required assistance with personal care, prepared simple meals, did light housecleaning, did not drive, shopped for groceries with his family, managed his personal finances, and attended church. He did not report use of a cane or walker (Tr. 223-28).
On May 10, 2016, Robert McDonald, M.D., evaluated the plaintiff for complaints of a right eye injury. He reported eye trauma that produced symptoms that included red eyes and pain in the sunlight. On examination, the plaintiff had a large lower conjunctival hemorrhage that was tender to touch. Dr. McDonald referred the plaintiff to Piedmont Eye Associates (Tr. 413-15).
On May 13, 2016, Hurley W. Knott, M.D., a nonexamining consultant on contract to the Administration, completed a physical RFC assessment. Dr. Knott found that the plaintiff was capable of performing light work with postural and manipulative limitations (Tr 77-80).
On July 22, 2016, Dr. Srinivasan evaluated the plaintiff for a recurrent left inguinal hernia. The plaintiff reported that he had swelling right after his last hernia repair that never went away. He reported a history of hydrocele and burning in the left groin area. The plaintiff reported that he reduced the hernia several times a day and that sometimes it would not reduce. He reported that the more that he was on his feet, the more the burning in his groin increased. Dr. Srinivasan assessed a recurrent inguinal hernia. Dr. Srinivasan noted that the best thing to do was to put a laparoscope in and try to assess the situation by observing the pattern of recurrence. Dr. Srinivasan recommended a laparoscopic hernia repair (Tr. 577-80).
On November 10, 2016, Scott Arendt, M.D., of Immediate Care Center Eastside, evaluated the plaintiff. Dr. Arendt noted that the plaintiff was a patient of Dr. Davis and had been getting refills at CVS until he recently discovered he had no more refills. Dr. Arendt assessed hypertension and refilled losartan and metoprolol (Tr. 560-61).
On December 14, 2016, Davis Whiteside, NP, evaluated the plaintiff to establish care. The plaintiff reported that he had history of a back and neck injury. He reported that he had nerve damage to his left hand. He complained of tingling and itching in all extremities, but it was worse in his legs. He reported that he had hypertension, which was a chronic problem that started more than a year earlier and was not controlled. The plaintiff reported that he was compliant with a low cholesterol diet and was taking pravastatin as prescribed. Mr. Whiteside assessed neuropathy, hypertension, and high cholesterol. He prescribed Procardia and refilled pravastatin, aspirin, losartan, metoprolol, and nifedipine (Tr. 528-31).
On January 13, 2017, Robert Ringel, M.D., evaluated the plaintiff for a back and neck injury and nerve damage to his hand. The plaintiff reported numbness and burning and tingling in his legs. He reported that he had left hand nerve damage in the 1990's following a vehicle collision. He reported that weakness had been progressive in both hands and both lower extremities. On examination, the plaintiff exhibited full range of motion in the neck, but some weakness in his hands and legs. Sensory examination revealed that the plaintiff had stocking glove sensory loss in all modalities to the knees to mid-forearms. His reflexes were generally unelicitable. Motor examination revealed 4 minus/5 weakness of the abductor pollicis brevis, flexor pollicis longus, and abductor digiti minimi muscles of both hands. Dr. Ringel noted that the plaintiff described clinical findings consistent with a progressive neuropathy with acceleration of weakness. Dr. Ringel noted that the findings were strongly suspicious for demyelinating neuropathy such as chronic inflammatory demyelinating polyneuropathy ("CIDP"). Dr. Ringel ordered lab work and a nerve conduction EMG study. He prescribed gabapentin (Tr. 440-41).
On January 17, 2017, Dr. Ringel briefly evaluated the plaintiff after the nerve conduction EMG study. Findings of the test were consistent with a sensorimotor peripheral neuropathy. Dr. Ringel noted that the test did not confirm CIDP and that it appeared to be more of a mixed fiber sensory motor peripheral neuropathy. Dr. Ringel recommended trying gabapentin at bedtime and noted that the plaintiff had been on a higher dose of Celebrex. Dr. Ringel recommended 200mg per day due to potential renal toxicity with long term use (Tr. 442-43).
On January 24, 2017, Mr. Whiteside evaluated the plaintiff for followup. He complained of episodes of dizziness lasting five minutes each. He reported that the dizziness was a chronic problem and that he had frequent tinnitus. Mr. Whiteside noted that the plaintiff's hypertension was improving with treatment. He prescribed meclizine and refilled aspirin, gabapentin, losartan, metoprolol, nifedipine, and pravastatin (Tr. 525-27).
On February 17, 2017, Dr. Ringel evaluated the plaintiff for followup of EMG results, problems with tingling in his legs, headaches, and burning in his feet. Dr. Ringel noted that the plaintiff had previously had some swelling of his feet and trouble walking, which had improved. Examination of the plaintiff's cranial nerves two through 12, cerebellar and molar, showed bilateral lower extremity weakness worse in the right leg - in particular, when elevating and extending his right knee. The plaintiff had stocking glove vibratory sensory loss to the knees. Dr. Ringel diagnosed idiopathic progressive neuropathy and other spondylosis with myelopathy. Dr. Ringel ordered an MRI for evaluation of myelopathy and syrinx or cord compression (Tr. 450-52). On February 28, 2017, the plaintiff had a cervical MRI that showed multilevel degenerative disc disease. An MRI of his thoracic spine showed multilevel degenerative disc disease with no spinal canal or neural foraminal stenosis (Tr. 459-62).
On March 7, 2017, Dr. Ringel evaluated the plaintiff for followup. The plaintiff's MRI showed minimal cervical stenosis at C5-C6. Peripheral neuropathy was not observed, and there was no obvious progressive weakness. The plaintiff had previously had three injections in his cervical spine and recommendations by an orthopedic surgeon that he have a cervical disc surgery. Dr. Ringel recommended that the plaintiff undergo home cervical traction. Dr. Ringel noted that evoked potential studies for evidence of a previous transverse myelitis would be obtained (Tr. 453-54). On April 6, 2017, Dr. Ringel evaluated the plaintiff for followup. Dr. Ringel noted that it appeared the plaintiff had some changes on his evoked potential studies. He reported that he was still having cervical pain with traction and that he was using meclizine for dizziness, but he was still symptomatic. On examination, the plaintiff's gait was performed with difficulty. He complained of left hernia localized pain during the examination. Dr. Ringel ordered a visual evoked response study (Tr. 457-58).
On April 25, 2017, Mr. Whiteside evaluated the plaintiff for followup. The plaintiff reported that he had problems with hypertension for more than a year and that it had gradually improved since onset. He reported that he had continued pain in the inguinal area and that he had seen Dr. Srinivasan in the past. He wanted to be referred to a different surgeon. Mr. Whiteside assessed neuropathy, hypertension, nocturia, high cholesterol, dizziness, and an inguinal hernia. Mr. Whiteside referred the plaintiff to surgery and increased his dose of Neurontin to 600 milligrams and his meclizine dose to 25 milligrams. He continued the plaintiff on his blood pressure medication regimen (Tr. 522-24).
On May 15, 2017, James Behr, M.D., of Carolina Orthopaedic and Neurosurgical Associates, evaluated the plaintiff to establish care. The plaintiff described multiple areas of pain in his neck on the left greater than the right side with minimal radiation and in his thoracic and lumbar spine with the worst of the pain at his right lumbar paraspinals and posterior superior iliac spine. He also complained of a burning and a stabbing sensation going down the bilateral legs. The plaintiff described his pain as a sharp, burning, tingling, aching, numb, pressure, cruel, shooting, and pins and needles. On examination, the plaintiff's facet loading was clearly positive on the right lumbar paraspinals, FABER was positive on the right and negative on the left, and cervical facet loading was positive bilaterally. He had give away weakness throughout. The plaintiff had tenderness over his right posterior superior iliac spine and less so to the left. He had an antalgic gait and some pain with forward flexion. Dr. Behr assessed sacroiliac disorder and neck pain. He prescribed Mobic and scheduled the plaintiff for a sacroiliac joint injection, physical therapy, and a sacroiliac joint belt (Tr. 481-85).
On May 18, 2017, Claude Daniel Woollen, M.D., evaluated the plaintiff for a recurrent left inguinal hernia. The plaintiff reported that he had a previous hernia repaired by Dr. Srinivasan in 2012 and a left sided hydrocele recently repaired by Dr. Pryor. He complained of pain with bulge especially at night and wanted to discuss surgical repair. Dr. Woollen noted that the plaintiff did have a hernia and recurrent hydrocele and that repair would be very painful. There would be some jeopardy to his testicle on that side (Tr. 573-76).
On May 25, 2017, Dr. Ringel provided a statement on behalf of the plaintiff. Dr. Ringel noted that the first time he saw the plaintiff was on January 13, 2017, and the last time he saw him was on April 6, 2017. Dr. Ringel noted that the plaintiff suffered from a mixed fiber sensory motor peripheral neuropathy in all four extremities that was detected by nerve testing dated January 18, 2017. The plaintiff also had some diffuse degenerative disc disease in his spine. Dr. Ringel noted that given the plaintiff's symptoms, he had looked for a cervical cord lesion, but it was not there. Dr. Ringel noted that CIDP was a progressive condition, and he had not been able to confirm that the plaintiff had CIDP. Dr. Ringel suspected CIDP due to the plaintiff's complaints of weakness and neuropathy that did not have an identified source. Dr. Ringel noted that he was forced to continue to monitor the plaintiff carefully to look for signs as to what was causing his neuropathy. Dr. Ringel noted that he would monitor the plaintiff and do repeat nerve conduction testing looking again for CIDP. The plaintiff needed to be monitored for multiple sclerosis-like illness. He noted that the plaintiff had a very serious problem. Neuropathies that progressed were associated with pain, numbness, weakness, and loss of fine motor abilities. Dr. Ringel opined that he was certain that the plaintiff would be limited to a sit-down job. The plaintiff would not be able to persist through an eight-hour work day at even a sit-down job due to generalized weakness. He would not be able to engage in any kind of repetitive activity. The plaintiff's type of problems could cause sleep difficulties due to pain, and therefore he would suffer from all over pain, fatigue, and lassitude that would prevent him from engaging any kind of sustained activity. Dr. Ringel noted that the plaintiff's condition was likely progressive (Tr. 467).
On June 1, 2017, Dr. Ringel provided another statement on behalf of the plaintiff. He noted that the plaintiff had a history of chronic illnesses that precluded his ability to work at that time, and his situation would not change in the immediate future (Tr. 465).
On June 7, 2017, it was noted in a physical therapy evaluation that the plaintiff had been using a cane for ambulation for about twelve weeks (Tr. 624). The plaintiff participated in physical therapy for chronic pain and sacroiliac pain from June 7 to July 7 and from September 11 to October 11, 2017, at Spartanburg Rehabilitation Services (Tr. 624-70).
On June 29, 2017, Dr. Behr evaluated the plaintiff for followup. The plaintiff noted that he had not yet been set up for the right sacroiliac injection, but he was still interested. The plaintiff reported that he continued taking Mobic and tolerated that well. He reported that he had some difficulty with gabapentin making him slightly drowsy, but, overall, he felt that it helped with his pain. He reported that he went to physical therapy, which had helped. However, he had some difficulty with it due to some difficulties he had with his hernia. Dr. Behr assessed a left inguinal hernia with cervical spine pain related to diffuse degenerative changes as well as what appeared to be right sacroiliac joint arthropathy or, less likely, right-sided lumbar facet arthropathy. Dr. Behr scheduled the plaintiff for a sacroiliac joint injection. He refilled Mobic and provided samples of Horizant for the plaintiff to try (Tr. 476-89). On July 11, 2017, the plaintiff had a right intra-articular sacroiliac injection (Tr. 474-75).
On July 12, 2017, Dr. Ringel evaluated the plaintiff for followup of pain, numbness, and weakness. The plaintiff's blood work indicated that his creatine phosphokinase ("CPK") was elevated at 699. He reported that he had lumbar epidural injections the day before. The plaintiff had a negative vasculitis, connective tissue disease work up. Motor examination showed minimal proximal muscle lower extremity weakness. The plaintiff was areflexic, and his station was normal. His gait required use of a cane for balance. He had clinical features that could raise the issue of underlying connective tissue disease, vasculitis, and myositis (Tr. 548-49).
On July 18, 2017, David Mitchell, M.D., of Carolina Orthopaedic and Neurosurgical Associates, evaluated the plaintiff for a second opinion regarding surgery. The plaintiff reported that he had a cervical epidural and had been seen by various pain management doctors for nerve blocks. Dr. Mitchell noted that the plaintiff had recently had a sacroiliac block, and he had hernia surgery scheduled. Dr. Mitchell noted that the plaintiff seemed fairly debilitated, and he walked with a cane. The plaintiff's cervical spine examination showed that he had full range of motion. He had poor effort on triceps and biceps testing bilaterally and negative Lhermitte sign. The plaintiff seemed to have a positive Hoffman's examination on the right upper extremity compared to the left. Dr. Mitchell did not see any operable lesions on the plaintiff 's cervical spine (Tr. 471-73).
On July 20, 2017, the plaintiff underwent an open repair of an inguinal hernia on the left abdomen (Tr. 709-10). On July 27, 2017, Mr. Whiteside evaluated the plaintiff for followup. The plaintiff reported that he was compliant with his low cholesterol diet and that he was taking pravastatin as described. He reported that he continued to have pain from his inguinal hernia surgery, and he was taking Percocet, which resulted in constipation. He reported intermittent relief and worsening of dizziness with meclizine. He reported that he was also having nosebleeds at the same time as the dizziness. Mr. Whiteside assessed hypertension, inguinal hernia, vertigo, hyperlipidemia, and therapeutic opioid constipation. Mr. Whiteside prescribed Movantik and continued the plaintiff on his blood pressure medication regimen and pravastatin (Tr. 518-21).
On August 3, 2017, Dr. Woollen evaluated the plaintiff for post-surgical followup of left recurrent inguinal hernia repair. He reported that his testicles swelled, but he was doing well. Dr. Woollen noted that the incision was dry and intact, and he clipped the sutures (Tr. 571-72).
On August 18, 2017, Dr. Ringel evaluated the plaintiff for followup. He was still having pain, and he had a cervical epidural with possible physical therapy in the future. Blood work showed that his CPK was elevated and aldolase was within normal limits. Motor examination showed minimal distal weakness, and he had mild distal stocking glove sensory loss, areflexia, and an awkward gait. Dr. Ringel instructed him to follow up in one month (Tr. 550-51).
On August 24, 2017, Dr. Behr evaluated the plaintiff for followup of his neck and back pain. The plaintiff reported that he had a right sacroiliac joint injection a month earlier and that it helped quite a bit but only for about five days. He reported that he had seen Dr. Mitchell and was told he was not a surgical candidate for his neck. Dr. Behr prescribed tramadol, refilled Mobic, and discontinued Horizant. He referred the plaintiff to physical therapy (Tr. 595-99).
On September 8, 2017, Dr. Ringel evaluated the plaintiff for followup of idiopathic progressive neuropathy. The plaintiff reported that he had been on Horizant for his pain, tramadol, and meloxicam. He reported that he had a sacroiliac joint injection and had gotten better. On examination, the plaintiff's gait was somewhat shuffling and kyphotic in appearance but not Parkinsonian. The plaintiff was to follow up in three months (Tr. 544-45).
On October 26, 2017, Dr. Behr evaluated the plaintiff for followup. He complained of neck and back pain. He had gone to physical therapy and felt it only helped minimally in terms of pain. He also reported that he had several epidurals in the past with only minimal relief. He stated that tramadol helped to some degree. On examination, the plaintiff's facet loading was clearly positive on the right lumbar paraspinals, FABER was positive on the right and negative on the left, and cervical facet loading was positive bilaterally. He had give away weakness throughout, tenderness over his right posterior superior iliac spine and less so to the left, and an antalgic gait. Dr. Behr discontinued Mobic and refilled tramadol. He recommended that the plaintiff continue with physical therapy and transition into a home exercise program (Tr. 590-94).
On October 28, 2017, Dr. Ringel evaluated the plaintiff for followup of idiopathic progressive neuropathy. He reported that he had a steroid epidural and hernia surgery a week earlier. Dr. Ringel noted that the plaintiff was in pain from his herniorrhaphy. Dr. Ringel ordered CPK and aldolase testing (Tr. 546-47).
On December 18, 2017, Dr. Ringel evaluated the plaintiff for followup. Dr. Ringel noted that the plaintiff continued to show generalized distal weakness in his legs and sensory loss. Motor examination showed 4-/5 weakness of the anterior tibials, extensor hallucis longus, iliopsoas, and quadriceps muscle groups. The plaintiff had sensory loss to vibratory sensation to the knees and diffuse areflexia. His gait was mildly affected. Dr. Ringel ordered repeat EMG studies to determine if there were any signs of progressive myopathy and prescribed gabapentin (Tr. 542-43).
On December 21, 2017, Dr. Behr evaluated the plaintiff for followup of neck and back pain. The plaintiff reported that he believed physical therapy helped to some degree. He reported that he continued to take tramadol and had improvement without any side effects. He had cervical spine pain related to diffuse degenerative changes as well as what appeared to be right sacroiliac joint arthropathy or, less likely, right -sided lumbar facet arthropathy. His neck pain was secondary to moderate right C4-C5 neural foraminal stenosis and C5-C6 and C6-C7 disc osteophytes. Dr. Behr noted that the plaintiff saw Dr. Gill who offered him surgery. The plaintiff also saw Dr. Mitchell for a second surgical opinion, and surgery was not recommended. Dr. Behr refilled tramadol. He noted that the plaintiff had completed physical therapy and that he encouraged him to transition into a home exercise program (Tr. 584-88).
On January 30, 2018, Mr. Whiteside evaluated the plaintiff for followup. The plaintiff reported that he was taking tramadol and gabapentin, but he remained in pain. He reported that he received intermittent injections of Kenalog from Dr. Behr, but they did not last more than a couple days. He complained of severe weight gain with injections. He reported that he continued to have nosebleeds and dizziness. His nosebleeds had improved but continued to occur. He reported that meclizine was effective in decreasing frequency. The plaintiff complained of his family waking him because they were scared when he held his breath when he was sleeping. He reported he woke up tired. On examination, the plaintiff had decreased range of motion, tenderness, and pain and spasms in his cervical back. He had normal strength, no cranial or sensory nerve deficit, normal coordination, and normal gait. He exhibited decreased range of motion, tenderness, pain, and spasms in his lumbar spine and thoracic back region. Mr. Whiteside assessed hypertension, neuropathy, vertigo, inguinal hernia, mixed hyperlipidemia, chronic bilateral low back pain with sciatica, frequent epistaxis, recurrent hypersomnia, and sleep apnea. He referred the plaintiff to an ear, nose, and throat ("ENT") specialist and to sleep studies. He refilled aspirin, gabapentin, losartan, meclizine, metoprolol, nifedipine, pravastatin, tramadol, and Cialis (Tr. 496-501, 515).
On February 8, 2018, the plaintiff underwent a one-night home sleep study. The results were consistent with severe obstructive sleep apnea (Tr. 509-11). On February 12, 2018, he underwent a nerve conduction study, and the results were consistent with axonal sensorimotor peripheral neuropathy (Tr. 541).
Dr. Ringel provided a statement on February 12, 2018, stating that the plaintiff continued to have diffuse muscular pain in both his upper and lower extremities with an aching quality associated with an element of very mild generalized muscle weakness. Dr. Ringel noted that the plaintiff's nerve conduction EMG studies showed features more consistent with a peripheral neuropathy. Polymyositis was not observed. Dr. Ringel noted that the plaintiff's last observed CPK was in the 900s (Tr. 540).
On February 19, 2018, Dr. Woollen evaluated the plaintiff for a muscle biopsy. The plaintiff reported diffuse muscular pain in the upper and lower extremities and weakness that had progressed over the last couple of years. He complained of burning and numbness in his feet that went up his legs. Dr. Woollen scheduled him for a surgical muscle biopsy (Tr. 567-70). The plaintiff followed up with Dr. Woollen on March 7, 2018. Dr. Woollen assessed muscle pain and muscle weakness. He noted that the plaintiff's incision was well healed and removed his sutures. Biopsy results had not been received. The plaintiff was noted to be ambulating with a cane (Tr. 565-66).
On March 8, 2018, Dr. Ringel evaluated the plaintiff for followup. Dr. Ringel noted that the plaintiff had distal cramps, pain, and was weaker. Dr. Ringel diagnosed idiopathic progressive neuropathy and other spondylosis with myelopathy (Tr. 538-39).
On March 26, 2018, Erik Steiniger, M.D., evaluated the plaintiff for dizziness. The plaintiff reported that his symptoms had been going on for several years and had started to get worse within the past few months. He described his dizziness as a spinning sensation that made him feel off balance and lightheaded. He reported that he felt like he was going to pass out when symptoms occurred, but meclizine helped. The plaintiff reported that his symptoms came and went, and some days he would have six episodes and other days he would not be dizzy. The plaintiff reported that his episodes were worse when walking, and he sat still to help. He reported that he also experienced episodes when he was doing nothing, that he could be asleep, and a spinning sensation would occur. He reported that his ears felt stopped up, which caused muffled hearing and blurred vision. Examination of the plaintiff's ears, nose, throat, and mouth were normal. Dr. Steiniger noted that in order to fully evaluate dizziness, a videonystagmogram ("VNG") to test for vestibular dysfunction was usually helpful and that he would obtain a VNG and follow up to discuss results (Tr. 772-75).
On March 27, 2018, the plaintiff had a right intra-articular sacroiliac injection (Tr. 582-83).
On April 4, 2018, the plaintiff underwent the VNG test, which was normal (Tr. 776-77). He saw Dr. Steiniger on April 11, 2018, and reported that he was still dizzy. The plaintiff reported that his dizziness had been worse for the last two to three days. He reported that he did not have any dizziness for the first couple of days after the VNG. He complained of being off balance. He also reported headaches following the dizziness episodes. Dr. Steiniger noted that the testing showed the dizziness had no relation to his inner ear. He noted that the plaintiff's vertigo could be due to migraines and recommended the plaintiff return to Dr. Ringel for treatment (Tr. 778-79).
On April 12, 2018, the plaintiff underwent a polysomnogram, which showed sleep architecture was remarkable for reduced REM sleep, CPAP was 16 cm, H2O was effective during supine sleep, and PLM index was normal (Tr. 780-88).
On April 26, 2018, Mr. Whiteside placed an order for a cane for the plaintiff for his chronic low back pain with sciatica, and he prescribed a customized back brace (Tr. 789-90).
At the hearing on May 14, 2018, the ALJ asked the vocational expert the following hypothetical:
Assume an individual the same age, education, work background as this Claimant limited to light, unskilled work. No climbing ladders, ropes, and scaffolds. No work around unprotected heights, dangerous machinery, and no driving job requirements. Avoid concentrated exposure to extreme changes in temperature, temperatures, and humidity, vibration, fumes, odors, dust, gases, chemicals, and other toxins. Limited to occasional, that's up to one-third of the workday, repetitive bending, repetitive bending from - just repetitive bending. Based on those limitations and those limitations alone, would there be any jobs in existence for such a limited individual?(Tr. 50-51). The vocational expert indicated that there would be work available such as shipping and receiving weigher, stock clerk, and router (Tr. 51). The plaintiff's attorney asked:
Let's assume the same age, education, and work experience as in the Judge's first hypothetical, but instead of any of the limitations you found there he would not be able to persist at eight-hour work. Not even a sit-down job due to generalized weakness. He could not engage in any kind of repetitive activity. He would be fatigued. [INAUDIBLE] prevent him from engaging any kind of sustained activity. I assume no competitive employment.(Tr. 52). The vocational expert replied affirmatively that there would be no competitive employment (Tr. 52).
The plaintiff's counsel submitted to the Appeals Council a medical source statement from Dr. Ringel dated August 17, 2018 (Tr. 10-11). Dr. Ringel indicated that he was board certified in adult neurology, sleep medicine, clinical neurophysiology, and electrodiagnostic medicine by the American Board of Psychiatry and Neurology. He stated that he originally diagnosed the plaintiff with CIDP, but he did not know the source of the plaintiff's neuropathy. He indicated that he had since diagnosed the plaintiff with idiopathic progressive neuropathy and that he had treated the plaintiff's neuropathy with high doses of gabapentin. Dr. Ringel also stated that the plaintiff had sleep apnea, which caused the fatigue the plaintiff experienced. Dr. Ringel indicated that the plaintiff also had sleep difficulties due to pain. He stated that he clinically found that the plaintiff had progressive numbness, burning, and tingling in his legs; progressive weakness in both hands; and progressive weakness in both lower extremities. Dr. Ringel explained that he observed that the plaintiff had swelling in the feet and difficulty walking. He noted that the plaintiff had complained of dizziness and burning in his feet. Motor examination revealed 4-/5 in his hands, 4+/5 in his triceps and wrist extensor on the right, 4-/5 in the triceps and wrist extensor on the left, 4+/5 in the biceps, 4+/5 in the deltoids, 4/5 in the finger extension, 4/5 in the lower extremities, and 1/5 in the extensor hallucis longus bilaterally and anterior tibialis bilaterally. Sensory examination revealed stocking glove sensory loss (in all modalities) to his knees as well as generally unelicitable reflexes. Dr. Ringel indicated that the plaintiff's January 2017 nerve conduction study and electromyogram findings were consistent with a sensorimotor peripheral neuropathy. He also explained that the plaintiff's March 2017 evoked potentials report showed evidence of a prolonged central conduction time on the right side median nerve and low amplitude responses on both sides (but particularly on the left), most consistent with peripheral neuropathy. Dr. Ringel indicated that the plaintiff's condition was more static in March 2017, but it had since become more progressive as he noted on May 25, 2017, which was part of the reason why the diagnosis was later changed. Dr. Ringel indicated that the plaintiff's February 2017 cervical MRI showed multilevel degenerative disc disease with disc osteophyte complex resulting in a mass effect upon the ventral aspect of the spinal cord at C3 -C4, C5-C6, and C6-C7 as well as flattening of the ventral aspect of the cord at C4 -C5. Dr. Ringel explained that the lack of a cervical spinal cord lesion did not invalidate the findings of the evoked potentials report or his clinical examinations. Dr. Ringel stated that the plaintiff's February 2017 thoracic MRI showed multilevel degenerative disc disease. He explained that while the plaintiff's spinal condition may be related to the neuropathy, his spinal condition contributed more to the pain he experienced than to the weakness he experienced. Dr. Ringel indicated that the plaintiff's pain may also be caused by amyloidosis, which was still being explored. Dr. Ringel also indicated that the plaintiff would have significant limitations as a result of his idiopathic progressive neuropathy that he believed would preclude the plaintiff from working even a sedentary job. Dr. Ringel stated that the plaintiff had weak muscles in his hands and legs and that the plaintiff "would be unable to engage in anything more exertionally demanding than lifting 10 pounds at a time and occasionally lifting or carrying articles such as docket flies, ledgers, and small tools as well as sitting most of the workday." He further stated that the plaintiff would only be able to be on his feet (either standing or walking) for less than a third of the workday. Dr. Ringel explained that the plaintiff had been observed walking with difficulty, which would get worse if he tried to lift or carry any significant weight. Dr. Ringel also indicated that the plaintiff would be able to grossly manipulate objects, handle objects, finely manipulate objects, pinch, and finger for less than a third of the workday. Dr. Ringel stated that the plaintiff "cannot perform repetitive activities and, if he were to try, he would need to take frequent breaks," and "[d]ue to pain, fatigue, and weakness, [the plaintiff] cannot engage in any kind of sustained activity either." Dr. Ringel noted the plaintiff's static weakness in his hands and indicated that his hands get weaker with repetitive activity due to his peripheral neuropathy (Tr. 11).
The plaintiff also submitted a medical source statement from Dr. Behr dated January 22, 2019 (Tr. 8-9), but he does not raise any issues with regard to that statement.
The Appeals Council found that this additional evidence did not show a reasonable probability that it would change the outcome of the decision and denied the request for review (Tr. 1-6). The Appeals Council did not exhibit the evidence (Tr. 2).
While the Appeals Council did not exhibit the evidence, Dr. Ringel's opinion is included in the Court Transcript Index portion of the record (see Tr. 11). According to the Social Security Administration's Hearings, Appeals, and Litigation Law Manual ("HALLEX") regarding the consideration of additional evidence by the Appeals Council, when the Appeals Council does not consider additional evidence it will "[n]ot exhibit the evidence," will "[a]ssociate a copy of the evidence in the appropriate section of the file," and "[t]he evidence ... will be included in the certified administrative record if the case is appealed to Federal court." HALLEX § 1-3-5-20, https://www.ssa.gov/OP_Home/hallex/I-03/I-3-5-20.html.
ANALYSIS
The plaintiff argues the ALJ erred by (1) improperly rejecting the opinion of treating specialist Dr. Ringel and (2) failing to include a limitation in the RFC assessment regarding the plaintiff's use of a cane. The plaintiff further argues that the Appeals Council erred in failing to properly review the new evidence (doc. 14 at 26-35).
Use of Cane
The plaintiff argues that the ALJ failed to properly include his cane use when formulating the RFC assessment (doc. 14 at 30-32). The regulations provide that a claimant's RFC is the most that he can still do despite his limitations. 20 C.F.R. §§ 404.1545(a), 416.945(a). It is the ALJ's responsibility to make the RFC assessment, and the ALJ does so by considering all of the relevant medical and other evidence in the record. Id. §§ 404.1545(a)(3), 404.1546(c), 416.945(a)(3), 416.946(c).
Social Security Ruling ("SSR") 96-8p provides in pertinent part:
The RFC 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 in paragraph (b), (c), and (d) of 20 C.F.R. §§ 404.1545 and 416.945. Only after that may RFC be expressed in terms of the exertional level of work, sedentary, light, medium, heavy and very heavy.SSR 96-8p, 1996 WL 374184, at *1. The ruling further provides:
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). In assessing RFC, the adjudicator must discuss the individual's ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and describe the maximum amount of each work-related activity the individual can perform based on the evidence available in the case record. The adjudicator must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved.Id. at *7 (footnote omitted). Further, "[t]he 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 medical and other evidence." Id. Moreover, "[t]he RFC assessment must always consider and address medical source opinions. If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted." Id.
A claimant's "ability to ambulate with and without the [hand-held assistive] device provides information as to whether, or the extent to which, the individual is able to ambulate without assistance." 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.00(J)(4). "The requirement to use a hand-held assistive device may also impact [a claimant's] functional capacity by virtue of the fact that one or both upper extremities are not available for such activities as lifting, carrying, pushing, and pulling." Id. Accordingly, an ALJ must consider "the impact of 'medically required' hand-held devices," such as a cane, when evaluating a claimant's RFC. Wimbush v. Astrue, C.A. No. 4:10cv36, 2011 WL 1743153, at *2-3 (W.D. Va. May 6, 2011) (quoting SSR 96-9p, 1996 WL 374185, at *7). In order "[t]o find that a hand-held assistive device is medically required, there must be medical documentation establishing the need for a hand-held assistive device to aid in walking or standing, and describing the circumstances for which it is needed . . . ." SSR 96-9p, 1996 WL 374185, at *7.
While SSR 96-9p applies on its face to claimants with sedentary RFCs, courts in this circuit have "found it instructive at other exertional levels as it relates to hand-held assistive devices, because those other levels involve even greater lifting than sedentary work." Snider v. Saul, C.A. No. 1:18CV549, 2019 WL 4538559, at *3 n.5 (M.D.N.C. Sept. 19, 2019) (citations omitted).
With regard to the plaintiff's use of a cane, the ALJ stated as follows in the RFC assessment:
[W]hile the claimant may have used a cane for some time, there is no prescription for an assistive device or notation that an assistive device is medically necessary until April 26, 201[8]; two weeks prior to the claimant's hearing. As such, there is no indication in the record that the claimant has required the use of an assistive device since his alleged onset date.(Tr. 26). The ALJ also referenced the plaintiff's use of a cane in the discussion of the plaintiff's severe impairments at step two of the sequential evaluation: "On June 7, 2017, it was noted that the claimant had been using a cane for ambulation for about twelve weeks; however, there is no prescription in the record for a cane until April 26, 2018" (Tr. 23).
The plaintiff argues that the ALJ failed to provide an adequate explanation for how he considered and reconciled the use of a cane in assessing the plaintiff's RFC. The undersigned agrees. In response, the Commissioner argues that the ALJ weighed "the conflicting evidence regarding Plaintiff's use of a cane, [and] the ALJ reasonably found that use of a cane was not necessary since his alleged onset date of disability in 2012" (doc. 15 at 13) (emphasis added) (citing Tr. 26). The Commissioner cites medical records and questionnaires from 2015 and 2016 in which it was noted that the plaintiff did not use an assistive device and argues that, while the plaintiff was noted on occasion to use a cane, it was only prescribed two weeks before the hearing in 2018, and, therefore, there was no evidence the plaintiff needed a cane "during his entire relevant period from 2012 to 2018" (id.) (citing Tr. 203, 228, 369). However, as argued by the plaintiff in reply, the Commissioner "provides no support - legal or rationale - showing that a limitation must be present at all times within a relevant period" (doc. 17 at 6). Rather, an impairment "must have lasted or must be expected to last for a continuous period of at least 12 months" to be found disabling. 20 C.F.R. §§ 404.1509, 416.909. See 42 U.S.C. § 423(d)(1)(A) (defining "disability" as an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment [that] can be expected to result in death or [that] has lasted or can be expected to last for a continuous period of not less than 12 months"); Snider v. Saul, C.A. No. 1:18CV549, 2019 WL 4538559, at *5 (M.D.N.C. Sept. 19, 2019) (remanding for further consideration and explanation of whether the plaintiff needed a cane for balancing during the relevant period where the record contained "evidence that might possibly support the need for a cane for balancing for more than one year during the relevant period").
For DIB purposes, the plaintiff's date last insured was March 31, 2016 (Tr. 20). However, for purposes of SSI, the relevant period is from the application date, November 3, 2016, through the date of the decision on May 30, 2018. See 20 C.F.R. § 416.330.
Here, the record contains evidence that might possibly support the plaintiff's need for a cane for a continuous period of not less than 12 months during the relevant period. Specifically, on June 7, 2017, it was noted in a physical therapy evaluation that the plaintiff had been using a cane for ambulation for about twelve weeks (Tr. 624). On July 12, 2017, Dr. Ringel noted that the plaintiff's gait required use of a cane for balance (Tr. 548-49). On July 18, 2017, Dr. Mitchell noted that the plaintiff seemed fairly debilitated, and he walked with a cane (Tr. 471-73). On March 7, 2018, Dr. Woollen noted that the plaintiff was ambulating with a cane (Tr. 565-66). Lastly, on April 26, 2018, nurse practitioner Mr. Whiteside provided a prescription and letter of medical necessity for a cane due to the plaintiff's chronic low back pain with sciatica (Tr. 789).
The Commissioner further states that the ALJ is not required "to include a restriction for use of a hand-held assistive device [in] a claimant's RFC based on a claimant's subjective statements or physician's suggestion based therefrom. To the contrary, in order to arrive at such a restriction, there must be proof of medical necessity" (Tr. 15 at 12) (citing SSR 96-9p, 1996 WL 374185, at *7). While the undersigned agrees with this statement, there is at least some evidence, as set out above, that the plaintiff's treating providers recognized that a cane was medically necessary to aid the plaintiff in ambulation and balance. "Moreover, a prescription or the lack of a prescription for an assistive device is not necessarily dispositive of medical necessity." Snider v. Saul, C.A. No. 1:18CV549, 2019 WL 4538559, at *3 (M.D.N.C. Sept. 19, 2019) (citing Staples v. Astrue, 329 F. App'x 189, 191-92 (10th Cir. 2009) (finding that the standard described in SSR 96-9p does not require that a claimant have a prescription for the assistive device in order for that device to be medically relevant to the calculation of her RFC; rather, a claimant only needs to present medical documentation establishing the need for the device)). See Downing v. Berryhill, C.A. No. 0:16-cv-3501-BHH, 2018 WL 1281478, at *5 (D.S.C. Mar. 13, 2018) (noting that "courts in the Fourth Circuit have determined that even when a cane is prescribed by a physician it may not be 'medically necessary' under [SSR] 96-9p") (citations omitted).
Here, the only reason given by the ALJ for not including a limitation in the RFC assessment requiring use of a cane - that there is no indication the plaintiff required the use of a cane since his alleged onset date (Tr. 26) - was in error, as discussed above, because there is no requirement that a particular impairment be present at all times during the relevant period. In Mascio v. Colvin, the Court of Appeals for the Fourth Circuit recognized that "remand 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." 780 F.3d 632, 636 (4th Cir. 2015) (citation and internal quotation marks omitted). The ALJ, in other words, "must both identify evidence that supports his conclusion and build an accurate and logical bridge from [that] evidence to his conclusion." Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (emphases and alteration in original) (internal quotation marks omitted). Otherwise, the court is "left to guess about how the ALJ arrived at his conclusions" and, as a result, cannot meaningfully review them. Mascio, 780 F.3d at 637. The undersigned finds that ALJ's decision lacks sufficient discussion of the plaintiff's need to use a cane for the court to determine whether substantial evidence supports the RFC finding. Accordingly, the undersigned recommends that this case be remanded so that the ALJ may further consider whether the plaintiff has demonstrated that it was medically necessary for him to use a cane to aid in walking or standing.
Remaining Allegations of Error
In light of the court's recommendation that this matter be remanded for further consideration as discussed above, the court need not specifically address the plaintiff's remaining allegations of error as the ALJ will be able to reconsider and re-evaluate the evidence as part of the reconsideration of this claim. Hancock v. Barnhart, 206 F. Supp. 2d 757, 763-64 n.3 (W.D. Va. 2002) (on remand, the ALJ's prior decision has no preclusive effect as it is vacated and the new hearing is conducted de novo); see Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3d Cir. 2003) (remanding on other grounds and declining to address claimant's additional arguments). As such, on remand, the ALJ should also consider the plaintiff's remaining allegations of error and should specifically consider the opinion of Dr. Ringel that was submitted to the Appeals Council.
CONCLUSION AND RECOMMENDATION
Now, therefore, based on the foregoing, it is recommended that the Commissioner's decision be reversed pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be remanded to the Commissioner for further consideration as discussed above.
IT IS SO RECOMMENDED.
s/ Kevin F. McDonald
United States Magistrate Judge September 2, 2020
Greenville, South Carolina The attention of the parties is directed to the important notice on the following page.
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
300 East Washington Street
Greenville, South Carolina 29601
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).