Opinion
Civil Action 5:21-429-BHH-KDW
07-12-2022
Michael Spataro, Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social Security,[1] Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE.
This appeal from a denial of social security benefits is before the court for a Report and Recommendation (“Report”) pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of a final decision of the Commissioner of Social Security (“Commissioner”), denying his claim for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) pursuant to the Social Security Act (“the Act”). For the reasons that follow, the undersigned recommends that the Commissioner's decision be affirmed.
I. Relevant Background
A. Procedural History
On January 15, 2019, Plaintiff protectively filed for DIB and SSI alleging he became disabled on December 18, 2018. Tr. 199-213. After being denied initially, Tr. 89-90, and upon reconsideration, Tr. 125-26, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), Tr. 144-45. The ALJ conducted a hearing on August 26, 2020, taking testimony from Plaintiff and from a vocational expert (“VE”). Tr. 34-69. The ALJ denied Plaintiff's claim in a decision dated September 9, 2020. Tr. 7-22. Plaintiff requested review of this decision from the Appeals Council. Tr. 194-95. After granting Plaintiff an extension, Tr. 28-29, on December 16, 2020 the Appeals Council denied Plaintiff's request, Tr. 1-5, making the ALJ's September 2020 decision the Commissioner's final decision for purposes of judicial review. Plaintiff brought this action seeking judicial review of the Commissioner's decision in a Complaint filed February 10, 2021. ECF No. 1.
B. Plaintiff's Background
Plaintiff was born in April 1972 and was 46 years old as of his alleged onset date of December 18, 2018. Tr. 234. In his January 2019 form Disability Report-Adult, Plaintiff indicated that he completed 12th grade, did not attend special education classes, and received a General Manufacturing Certificate in 1999. Tr. 229. He listed his past relevant work (“PRW”) as an Extrusion Operator for a supplier (March 2000-Dec. 2018). Id. Plaintiff indicated that he stopped working on December 18, 2018 because of his medical conditions which he listed as: degenerative disc disease, neck problem, migraines, back problem, herniated discs, and arthritis. Tr. 228. Plaintiff indicated that he was 5'10” tall, weighed 215 pounds, and his conditions caused him pain or other symptoms. Id.
A February 14, 2020 Disability Report-Appeal completed by Plaintiff's representative indicated a change in Plaintiff's medical conditions that occurred December 20, 2019. Tr. 258. Plaintiff indicated: “Left foot tingles non stop. More painful in my knees and hips when going up and down stairs.” Id.
C. Administrative Proceedings
On August 26, 2020, Plaintiff appeared with counsel for his administrative hearing in Greenville, South Carolina and testified regarding his application for DIB and SSI. Tr. 34-69.
The hearing was held telephonically because of the “extraordinary circumstance” of the COVID-19 pandemic. Tr. 10.
1. Plaintiff's Testimony
In response to questions from the ALJ Plaintiff testified that he was 48 years old, 5'10” tall, he weighed 215 pounds, and he was left-handed. Tr. 38. Plaintiff stated he was separated from his wife and had two children aged 15 and 18. Tr. 38-39. Plaintiff stated that he lived with his mother in her one-level house. Tr. 39. Plaintiff testified that he was in the South Carolina National Guard for nine years. Id. He stated that he has no source of income and that his mother provides food and his wife gives him “a few dollars here and there each month to put a little bit of gas in [his] car.” Id. Plaintiff testified that he has never had a Workers Compensation settlement for an on-the-job injury nor has he ever drawn unemployment after being laid off from a job. Tr. 40. Plaintiff stated that he is still covered under his wife's health insurance and she gives him “about $100 or $150 a month.” Id. Plaintiff testified that he graduated from high school and completed two years of college but did not finish or receive any type of certification. Id. Plaintiff testified that he was not working in any capacity and had not worked since December 2019. Tr. 40-41. Plaintiff stated that in December 2018 he was working at Cryovac as a film machine operator making plastic. Tr. 41. Plaintiff stated that he had to constantly turn 50-pound oars and lift 75/85-pound rolls. Id. Plaintiff confirmed that he had worked at Cryovac for over 18 years and his title was extrusion machine operator. Tr. 41-42. When asked why he stopped working, Plaintiff testified:
Well, I could hardly walk at the end of the day. My back was hurting. I had a little mishap and hurt it so bad and I was having so many issues and becoming snappy at everybody. And it just sort of a point where I couldn't take any more....It was non-stop on concrete and up and down metal steps to where the point I could hardly - - I was limping out there. I could hardly move.Tr. 42. Plaintiff confirmed that he was not laid off, but that he left the job. Tr. 43. Plaintiff stated that he has not looked for jobs at lighter exertional levels. Id. He stated that he “looked around at first” but then he and his wife decided that with all of his medical issues to “just go ahead and file” for disability. Id.
Plaintiff stated that in the mornings he gets up, brushes his teeth, and gets something to eat. Tr. 43. He testified that he might “clean up a little bit and sit down for a little bit and rest[.]” Id. He stated that if he vacuums, he will lie down afterward for an hour because it will start “pinching” his back. Id. Plaintiff stated that he does not have visitors, and he does not attend any clubs, organizations, church, therapy or counseling on a regular basis. Tr. 43-44. Plaintiff stated that in 24 hours he watches five or six hours of television. Tr. 44. He stated that he reads “a little bit” but that he needs to get his eyes checked and get glasses. Id. Plaintiff stated that he uses a smart phone, and he sometimes helps with cooking although because it is just two of them, they do not cook much and instead “might make a sandwich or a salad or something.” Id. Plaintiff stated that he did his own laundry and helped with the dishes. Id. He testified that his mother does the grocery shopping and that he sometimes goes with her; sometimes he waits for her to return home and then helps her carry in the groceries. Tr. 45. Plaintiff testified that he “can't walk on that floor too long. It starts hurting my back and my hips.” Id. Plaintiff stated they have “a guy that comes down and does the mowing” but he will pick up small items out of the yard or “trim a couple of bushes with a little hand trimmer.” Id. Plaintiff confirmed that he has a driver's license and last drove to the gas station two days earlier. Id. Plaintiff stated that his current hobby was reading, but he used to hike and camp. Tr. 45-46. He stated the last time he did any hiking or camping was two or three years ago. Tr. 46. Plaintiff stated that he will “walk to the mailbox and back or head around the yard once or twice but it starts hurting [his] feet so bad.” Id. Plaintiff testified that he takes care of his personal hygiene and he does not smoke, drink alcohol, or use street drugs of any kind. Tr. 4647. Plaintiff denied having a problem in the past with alcohol or drugs. Tr. 47. When asked what is the most severe physical problem that keeps him from working even a light job, Plaintiff testified that if he stands too long, he will get a “burning sensation” in his lower back, and he has degenerative disc disease in his neck that causes migraines. Id. Plaintiff stated that if he drives too long or sits in one spot too long a migraine will start. Id. When asked if he was on preventative medication for migraines Plaintiff testified that he takes “oxycodone a couple of times a day” and Motrin 800, but he was told there was nothing that could be done “because of the way that [his] neck is.” Tr. 48. Plaintiff stated that he cuts the oxycodone pill in half and takes one half every six hours. Id. Plaintiff testified that he takes the Motrin 800 as needed, but he has “slowed down that because it's really been eating away at [his] stomach.” Id. Plaintiff stated that he does not sleep well; he takes Ambien and “may get about four hours of sleep tossing and turning.” Id. Plaintiff testified that he takes Zoloft for depression and he confirmed that he has been taking that for the last “20 plus years[.]” Id. Plaintiff stated that he takes Lipitor and Lisinopril for high blood pressure. Tr. 48-49. Plaintiff testified that he has had MRIs and x-rays of his spine that show a herniated disc, degenerative disc disease, and a crack in one of the vertebra in his neck. Tr. 49. Plaintiff stated that the herniated disc is pressing on a nerve going into his leg and his calf muscle “never stop[s] moving” and his toes on his left foot are always numb and tingling. Tr. 49-50. Plaintiff described his back pain as “a sharp, stabbing non-stop pain” that has been going on for over ten years but has “gotten worse over the last six/seven years.” Tr. 50. The ALJ asked how he managed to work at that time, and Plaintiff responded he was taking a “lot of pain medication” including oxycodone, Motrin, and Advil. Tr. 50-51. Plaintiff testified that he has had steroid injections in his neck and lower back but that he “didn't get any relief out of [his] neck” and it eased his back pain about 50 percent for a couple of weeks. Tr. 51. Plaintiff stated that he did not try other injections because the pain management clinic closed and he had to switch doctors. Id. When asked about other physical problems Plaintiff testified that he had arthritis in his right foot, a bone spur in his left knee and a cyst behind the kneecap. Tr. 52. He stated that he had a series of Supartz shots in his knees that helped the right knee but not the left. Id. Plaintiff testified that he got relief for “about a week.” Id. Plaintiff testified that the doctor told him they could not remove the cyst and that the orthopedic doctor “just kind of blew [him] off and told [him] it was in [his] head.” Tr. 53. Plaintiff confirmed that no doctor was recommending surgery. Id. Plaintiff testified that he sometimes has trouble lifting because of bone spurs in both shoulders and arthritis. Id. Plaintiff stated that he has had two surgeries on both shoulders “to scrape bone spurs out.” Id. Plaintiff stated that it has been “several years ago” since his last surgery and that he is getting bone spurs again. Tr. 54. Plaintiff stated that he wears a back brace sometimes, and that he was given a boot for his right foot but after using it for a month “it didn't do anything.” Id. Plaintiff also testified that his “hips are turned outward instead of inward.” Tr. 55. He stated that his chiropractor can help get his legs straight if his hip pops out of joint, but that he cannot afford to go every time that happens. Tr. 56.
“Supartz injection is a therapy that is used to treat symptoms of knee osteoarthritis. The Supartz solution is injected directly into the knee joint to restore the cushioning and lubricating properties of the synovial fluid (joint fluid).” See https://www.verywellhealth.com/what-is-supartz-190466 (last visited July 12, 2022).
Plaintiff stated that he has some days when he gets “depressed and just everything hurts so bad, [he] just don't want to get out of bed.” Tr. 56. Plaintiff agreed that he was having good results with Zoloft, but that with the non-stop pain and issues with his wife, “[e]verything's a mess right now.” Id. Plaintiff testified that he gets along with people, but he does not talk to people a lot because he is not a “big people kind of person” and keeps to himself. Tr. 56-57. Plaintiff stated that if he sits too long-for more than an hour-he gets migraines. Tr. 57. Plaintiff stated that he cannot stand in one spot for long, but he feels better if he is “moving about.” Id. He stated that he can stand for 10-15 minutes before needing to sit down or lean against something. Tr. 57-58. He said he can walk 15-20 minutes before needing to sit down. Tr. 58. Plaintiff testified that he may be able to lift 25 pounds and can squat down to pick up something he dropped. Id. Plaintiff stated that about one month ago, when he was getting some things from his former house, his feet “gave out” and he “slid down about three steps, hit the bottom of [his] butt.” Tr. 58-59.
In response to questions from his attorney, Plaintiff testified that if he reaches upward, he feels “a stabbing” in his shoulders. Tr. 59. He testified that it hurts to pick up a container of milk or juice, and it is worse in his right shoulder than in his left. Tr. 59-60. Plaintiff testified that even though he is left-handed he does a lot with his right hand, and when he was working with the machines, he did it right-handed. Tr. 60. Plaintiff confirmed that he was hospitalized for seven days for a suicide attempt, but he was no longer experiencing thoughts of self-harm. Id. Plaintiff testified that over the years his depression symptoms have gotten a little worse and it is causing him issues with getting along with people. Tr. 61. Plaintiff stated there are times when he selfisolates because he does not want to see anyone. Id. Plaintiff testified that when he is in that state, he is not motivated. Id. Plaintiff stated that he feels that way three or four days a month, “not a lot.” Id. Plaintiff testified that he rests or lies down for a total of four or five hours a day “depending on what [he's] doing, depending on how bad it starts hurting.” Tr. 62.
2. VE's Testimony
The VE identified Plaintiff's past work as a composite position because she saw a notation that Plaintiff used a forklift and loaded and unloaded materials. Tr. 63. She identified the first title as extruder operator, Dictionary of Occupational Titles (“DOT”) number 557.382-010, medium exertion, SVP:5; and the second title as material handler, DOT number 929.687-030, heavy exertion, SVP:3. Tr. 63. The VE noted that in combination, Plaintiff's job was heavy and skilled. Id.
The ALJ asked the VE to assume a hypothetical person, age 48, with the following limitations:
limited to no more than light work, lift and carry 10 pounds frequently, up to 20 pounds rarely or occasionally. Sitting up to six hours of an eight-hour day. Standing and walking up to six hours of an eight-hour day for a total of eight-hour workday with usual and normal breaks. Frequent on all the posturals, that being climbing ladders, climbing ramps and stairs, balancing, stooping, crouching, and crawling. I believe he'd have difficulty with all of those with his back and knee and leg issues. Frequent right overhead reaching....Claimant can understand and remember both simple and detailed instructions and able to attend and perform simple unskilled tasks for reasonable periods of time, but would have difficulty focusing on more complex tasks for extended periods of time. So at least up to two-hour periods, he can maintain concentration to complete a simple job. Claimant can interact appropriately with co-workers and supervisors, but he is not suited for work with the general public. So as much as nominal public interaction.Tr. 64. The ALJ asked if the individual could return to any of Plaintiff's past work, and the VE responded in the negative. Tr. 64-65. The VE provided the following exemplar jobs at the light exertion and SVP:2 level that such a person could perform: mail clerk, DOT number 209.687-026, nationally 104,820 positions available; folder, DOT number 369.687-018, nationally 100,570 positions available; and assembler, DOT number 706.684-022, nationally 136,800 positions available. Tr. 65. The VE testified there were no direct conflicts with the DOT or Selected Characteristics, but she noted that overhead reaching and right/left reaching is not differentiated. Tr. 65-66. The VE also noted that the publications do not specify “whether the contact is with coworkers, supervisors or the public, although that is somewhat inherent with the titles and their descriptions.” Tr. 66. The VE testified that her answers to the ALJ's hypotheticals were based on her “professional experience of 29 plus years in the field of industrial rehabilitation. As part of [her] job all those years working directly with employers doing job analyses and being in the industry, reviewing occupations as performed.” Id.
Plaintiff's counsel asked the VE if she had an opinion regarding off-task tolerances in the workplace. Tr. 66. The VE testified that anything “more than ten percent of the time on any kind of a chronic basis is really not going to be tolerated.” Id. Counsel asked the VE to assume a hypothetical individual who would be off task for at least two hours in a workday. Id. The VE affirmed that would not be consistent with full-time competitive employment. Tr. 66-67. When asked about absenteeism in the workplace the VE testified that it was “different employer to employer.” Tr. 67. The VE noted that it “usually averages out to one a month is tolerated in these occupations” and anything more on a recurring basis would not be tolerated. Id. The VE confirmed that would be true at all exertional levels. Id.
Counsel asked what the impact would be on the hypothetical individual “only frequently able to maintain attention and concentration on simple, routine tasks.” Tr. 67. The VE responded that the ability to stay on task for up to two-hour periods needed to be throughout the entire workday and based on the DOT “frequently” would be “34 to 66 percent of the time” that the individual would not be performing critical job demands. Id. The VE opined that would be “well outside” of what would be tolerated. Id. The VE stated that the specifics of paying attention or off-task are not noted specifically in the publications, but they are based on her “experience working with employers over the last 29 years.” Id.
With no further questions, the hearing concluded. Tr. 68.
II. Discussion
A. The ALJ's Findings In her September 9, 2020 decision, the ALJ made the following findings of fact and conclusions of law:
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2023.
2. The claimant has not engaged in substantial gainful activity since December 18, 2018, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: degenerative disc disease of the spine, dysfunction of major joints, migraine headaches, depressive disorder and bipolar disorder (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 he can frequently balance, stoop, crouch, kneel and crawl. He can frequently climb ramps and stairs and climb ladders, ropes and scaffolds. He can frequently engage in overhead reaching with the right upper extremity. He can understand and remember both simple and detailed instructions. He is able to attend to and perform simple, unskilled tasks for reasonable periods of time, but would have difficulty focusing on the more complex tasks for extended periods of time. He can interact appropriately with co-workers and supervisors, but he should have minimal contact with the general public.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on April 2, 1972 and was 46 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963).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 the Medical-Vocational Rules support 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 December 18, 2018, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).Tr. 12, 15, 18, 20-21.
B. 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,” defined 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); see also 42 U.S.C. § 1382c(a)(3)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983) (discussing considerations and noting “need for efficiency” in considering disability claims). An examiner must consider the following: (1) whether the claimant is working; (2) whether the claimant 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 the claimant from performing specific jobs that exist in significant numbers in the national economy. 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) and § 416.920(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).
A claimant is not disabled within the meaning of the Act if he can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, § 404.1520(a), (b); § 416.920(a), (b); Social Security Ruling (“SSR”) 82-62 (1982). The claimant bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the regional economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that he is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen, 482 U.S. at 146. n.5 (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 v. Barnhart, 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, 428 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. “Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005); see also Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (explaining that, “whatever the meaning of ‘substantial' in other contexts, the threshold for such evidentiary sufficiency is not high,” as it means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion”). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings, and that the conclusion is rational. See Vitek, 428 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed “even should the court disagree with such decision.” Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
C. Analysis
Plaintiff alleges that (1) the ALJ's residual functional capacity (“RFC”) assessment is inadequate and (2) the ALJ failed to evaluate all of his impairments. Pl.'s Br. 23, 26; ECF No. 15.
1. The ALJ's RFC Assessment
An RFC assessment is a determination of an individual's ability to perform sustained work-related activities on a regular and continuing basis. SSR 96-8p, 1996 WL 374184 at *1. “RFC is not the least an individual can do despite his or her limitations or restrictions, but the most.” Id. (emphasis in original). At the administrative hearing level the ALJ is responsible for assessing a claimant's RFC. 20 C.F.R. §§ 404.1546(c), 416.946(c). An ALJ's RFC assessment should be based on all relevant evidence and will consider the claimant's ability to meet the physical, mental, sensory, and other requirements of work. 20 C.F.R. §§ 404.1545(a)(3) and (4), 416.945(a)(3) and (4).
Here, the ALJ considered Plaintiff's hearing testimony, the medical records, and the opinion evidence and determined Plaintiff had the RFC to perform light work with certain postural and manipulative limitations. Tr. 18. The ALJ also limited Plaintiff to reasonable periods of time for performing simple unskilled tasks, and she limited his interaction with the general public. Id. The ALJ stated that in making her RFC finding she “considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence, based on the requirements of 20 CFR 404.1529 and 416.929 and SSR 16-3p.” Id. The ALJ noted that she also considered the medical opinions and prior administrative findings in accordance with the requirements of 20 CFR 404.1520c and 416.920c. Id.
Plaintiff argues that the ALJ failed to reconcile the opinion evidence that she relied on when formulating her RFC assessment, “the ALJ provided internally inconsistent findings when explaining her RFC determinations[,]” and the ALJ's RFC assessment was ambiguous regarding the maximum amount of work-related activity Plaintiff could perform. Pl.'s Br. 24-26.
a. Alleged Failure to Reconcile Opinion Evidence
Under the new regulations, ALJs need not assign an evidentiary weight to medical opinions or give special deference to treating source opinions. 20 C.F.R. §§ 404.1520c(a), 416.920c(a) (providing that ALJs “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from [a claimant's] medical sources”). Instead, ALJs consider medical opinions using five factors: (1) supportability; (2) consistency; (3) the medical source's relationship with the claimant; (4) the medical source's specialization; and (5) other factors, such as the medical source's familiarity with the other evidence in the claim or understanding of the disability program's policies and evidentiary requirements. 20 C.F.R. §§ 404.1520c(c), 416.920c(c). The first two factors, supportability and consistency, are the most important in determining the persuasiveness of a medical source's opinion, and the ALJ is not required to explain the consideration of the other three factors. Id. §§ 404.1520c(b)(2), 416.920c(b)(2). The new regulations further deem certain evidence “inherently neither valuable nor persuasive.” 20 C.F.R. §§ 404.1520b(c), 416.920b(c). This includes statements on issues reserved to the Commissioner such as whether a claimant is disabled, is unable to work, or is incapable of doing past relevant work. 20 C.F.R. §§ 404.1520b(c)(3), 416.920b(c)(3).
The new regulations define a “medical opinion” as “a statement from a medical source about what you can still do despite your impairment(s) and whether you have one or more impairment-related limitations or restrictions” in the abilities to perform the physical, mental, or other demands of work activity or to adapt to environmental conditions. 20 C.F.R. §§ 404.1513(a)(2), 416.913(a)(2). Those regulations also define a “prior administrative medical finding” as a “finding, other than the ultimate determination about whether [a claimant is] disabled, about a medical issue made by [the SSA's] Federal and State agency medical and psychological consultants at a prior level of review.” 20 C.F.R. §§ 404.1513(a)(5), 416.913(a)(5).
Here, the ALJ indicated that she “fully considered the medical opinions” of the State agency physicians, the reports of consulting examiners Dr. Hewitt and Dr. Keith, and the Treatment Source Statement of Dr. Malone. Tr. 20. The ALJ found these opinions to be persuasive because they were supported by and consistent with the record. Id. While she considered the opinion evidence and found it to be persuasive, she does not indicate in her decision that she relied solely on these opinions in formulating her RFC.
The ALJ discussed the opinions of Drs. Hewitt, Malone and Keith in greater detail at Steps Two and Three of the sequential evaluation process. Tr. 13-14, 17.
Plaintiff contends Dr. Hewitt's opinions do not support the ALJ's RFC assessment because the ALJ's assessment was more limiting, and Dr. Keith indicated that “it was possible that his ‘ongoing pain level may impact his ability to concentrate and persist throughout the course of the workday.'” Pl.'s Br. 24. Plaintiff also notes that the ALJ's mental RFC was more limiting than the State agency examiners on initial review, and her physical RFC was more limiting on initial and reconsidered review. Id. Plaintiff takes issue with the ALJ allowing for minimal contact with the general public, when on reconsideration the State agency examiner determined Plaintiff was “‘not suited for work with the general public.'” Id. Plaintiff faults the ALJ for failing to provide any discussion or explanation on how she arrived at her RFC assessment. Id.
Under the new regulations for consideration of opinion evidence, the medical source's treating relationship with the claimant should be taken into consideration regarding the persuasiveness of the opinion. See 20 C.F.R. §§ 404.1520c(c)(3), 416.920c(c)(3). In making his argument that the ALJ failed to reconcile the opinion evidence Plaintiff cites to differences (which were to his benefit) between the ALJ's assessment and the assessments of non-examining physicians or one-time consulting physicians who lacked a longitudinal relationship with Plaintiff. Although minor differences may exist “between the consultants' RFC and the ALJ's RFC, an ALJ's decision to find an opinion persuasive does not compel him to adopt all of the limitations in that opinion[.]” Emerson v. Kijakazi, No. 1:21CV307, 2022 WL 1004584, at *10 (M.D. N.C. Apr. 4, 2022) (internal citations to the record omitted) (citing Bennettv. Colvin, No. 3:13CV1176, 2015 WL 153950, at *13 (M.D. Tenn. Jan. 12, 2015)). As to the ALJ's consideration of the opinion of his treating physician, Dr. Malone, Plaintiff found no issue with the ALJ's RFC assessment.
Furthermore, considering that the ALJ's RFC assessment was more limiting than the opinions of the physicians, any error by the ALJ would be deemed harmless as Plaintiff was not prejudiced by the ALJ's review of the medical opinions and Plaintiff raises no probability of a different outcome based on his arguments. Camp v. Massanari, 22 Fed.Appx. 311 (4th Cir. 2001) (finding that although plaintiff argued the ALJ improperly rejected the doctor's opinion, she “made no showing of prejudice. Thus, any error on the part of the ALJ was harmless.”); Emerson v. Kijakazi, 2022 WL 1004584, at *10 (citing Newsome v. Astrue, Civ. No. 11-1141, 2012 WL 2922717, at *6 (S.D. Ill. July 17, 2012) (unpublished) (“[I]t is difficult to see how [the] plaintiff was prejudiced by the fact that the ALJ assessed her with less ability to stand/walk than [the consulting neurologist] did.” (emphasis in original)). The ALJ explained her RFC assessment citing to both the objective medical evidence and the opinion evidence. Tr. 19-20. The undersigned recommends a finding that the ALJ did not err in her consideration of the medical opinions.
b. Alleged Internally Inconsistent Findings
Plaintiff next argues that the ALJ's RFC assessment contains “internally inconsistent findings.” Pl.'s Br. 25. As an example, Plaintiff notes that the ALJ determined that his “migraines limited him to ‘simple, unskilled tasks,' . . . and his mental impairments caused limitations relative to his ability to perform simple tasks and interact with the general public.” Id. Plaintiff then cites the language in the RFC assessment as being inconsistent with these findings.
In her RFC assessment the ALJ determined:
[Plaintiff] can understand and remember both simple and detailed instructions. He is able to attend to and perform simple, unskilled tasks for reasonable periods of time, but would have difficulty focusing on the more complex tasks for extended periods of time. He can interact appropriately with co-workers and supervisors, but he should have minimal contact with the general public.Tr. 18. The ALJ went on to explain the bases for these limitations as follows:
Turning to the claimant's mental impairments, he was admitted to the hospital in July 2019 after attempted suicide by overdose. Also, he subsequently received mental health counseling. But there is no indication of repeated hospitalizations as a result of his mental impairments. Also, there is no evidence of persistent psychotic behavior or agoraphobia. Moreover, there is no indication of a precipitous decline in his cognitive functioning during his course of treatment. Thus, the RFC considers the effects of his mental impairments by the inclusion of mental functional limitations relative to his ability to perform simple tasks and interact with the general public.
The evidence of record does not show that the claimant's migraine headaches have been so frequent, pervasive and severe as to prevent his engagement in any and all SGA. In finding the impairment severe, I have included limitations restricting the claimant's ability to attend and perform simple, unskilled tasks. It also limits around whom such tasks can be performed.Tr. 19-20. Plaintiff argues that the ALJ's findings are inconsistent. They undersigned finds no inconsistency. The ALJ's assessment regarding mental capabilities contains two separate limitations-one is Plaintiff's ability to “understand and remember” simple instructions, and the other is Plaintiff's ability to “attend to and perform” simple, unskilled tasks. Her assessment and reasoning for the assessment are not in conflict. Plaintiff also appears to argue that the limitations on his ability to interact with the general public is inconsistent with the ALJ's limitation to “minimal contact with the general public.” The undersigned finds no inconsistency in the ALJ's limitation. Accordingly, this allegation of error should be denied.
c. Alleged Ambiguousness of the RFC Assessment
Plaintiff's final argument regarding the ALJ's RFC assessment is that “the ALJ does not explain what ‘extended periods of time' means, nor does she clarify what she meant by ‘reasonable periods of time.' The ALJ also does not define what ‘minimal contact' means.” Pl.'s Br. 26.
“[An RFC assessment] is an administrative assessment made by the Commissioner based on all the relevant evidence in the case record. Felton-Miller v. Astrue, 459 Fed.Appx. 226, 230-31 (4th Cir. 2011) (citing 20 C.F.R. §§ 404.1546(c), 416.946(c) (2011) (assigning responsibility of RFC assessment at hearing level to ALJ); SSR 96-8p (identifying RFC finding as administrative assessment and outlining criteria to be used)). Here, the ALJ's hypothetical to the VE at the administrative hearing provided sufficient detail to resolve the ambiguities described by Plaintiff. In her first hypothetical the ALJ described an individual who
can understand and remember both simple and detailed instructions and able to attend and perform simple unskilled tasks for reasonable periods of time, but would have difficulty focusing on more complex tasks for extended periods of time. So at least up to two-hour periods, he can maintain concentration to complete a simple job. Claimant can interact appropriately with co-workers and supervisors, but he is not suited for work with the general public. So as much as nominal public interaction.Tr. 64 (emphasis added). Based on the ALJ's hypothetical the VE testified that such an individual could perform the exemplar jobs of mail clerk, folder, and assembler. Tr. 65. Although Plaintiff argues the ALJ erred by not defining the words reasonable, extended, and minimal-which he contends are “vague and open to different interpretations”-the VE did not express any difficulty in understanding their meaning in the ALJ's hypothetical. Pierson v. Comm'r of Soc. Sec., No. 1:12-CV-126, 2013 WL 428751, at *7 (S.D. Ohio Feb. 1, 2013), report and recommendation adopted, No. 1:12-CV-126, 2013 WL 791875 (S.D. Ohio Mar. 4, 2013) (“despite the purported vagueness of the term, any error would be harmless as the VE was able to understand the term and testified that there were jobs in the local and national economy that plaintiff could perform.”). Also, although Plaintiff's counsel examined the VE at the hearing, he did not question the VE on the meaning of the terms reasonable, extended, and minimal. Tr. 66-68. See Johnson v. Saul, No. CV 6:19-1155-MGL-KFM, 2020 WL 5810523, at *5 (D.S.C. Sept. 30, 2020) (finding no error where plaintiff “fails to cite any authority suggesting the ALJ should be required to define such a run-of-the-mill sort of term. Nor does she offer a persuasive case that the ALJ's neglecting to do so amounts to reversible error.”).
Review of the ALJ's decision as a whole reflects that she sufficiently explained Plaintiff's RFC and Plaintiff has failed to demonstrate that the ALJ's RFC is unsupported by substantial evidence or controlled by an error of law. Accordingly, the undersigned recommends this allegation of error be dismissed.
2. ALJ's Evaluation of Impairments
Plaintiff argues that despite record evidence of his body mass index (“BMI”) being over 30.0, “the ALJ's decision is silent regarding [Plaintiff's] obesity.” Pl.'s Br. 26. Plaintiff contends that “had the ALJ found obesity a medically determinable impairment, the ALJ may have evaluated [his] other impairments and subjective complaints differently; it could only be speculative to find that the ALJ's RFC would have remained the same had [s]he found obesity to be medically determinable.” Id. at 27. The Commissioner argues that “Plaintiff wrongfully relies on his weight, height, and [BMI] to seek remand where there is no evidence demonstrating a medically determinable impairment or greater limitations related to his weight.” Def.'s Br. 15. The Commissioner notes that no physician of record opined that Plaintiff was obese; although his BMI fluctuated between 29.3 and 31.6, he was described as being in good shape with normal weight; a June 2020 obesity screening failed to yield an obesity diagnosis or any weight-related recommendations; and Plaintiff did not display a consistent pattern of obesity. Id. at 15-16. The Commissioner also asserts that Plaintiff did not allege his disability was related to his height and weight, and he has failed to allege how considering his height and weight on remand would change the ALJ's decision. Id. at 16. On reply Plaintiff argues that obesity could have impacted his listed disabling conditions, and despite not listing any mental impairments the ALJ considered mental impairments depressive disorder and bipolar disorder and found them to be severe. Pl.'s Reply 67, ECF No. 18. Plaintiff argues that his other conditions, which the ALJ acknowledged, “were the type of impairments that obesity would be expected to impact.” Id. at 7.
SSR 19-2p provides that obesity is established as a medically determinable impairment (“MDI”) by considering the objective medical evidence from an acceptable medical source (“AMS”). 2019 WL 2374244 at *3. “Signs and laboratory findings from an AMS that may establish an MDI of obesity include measured height and weight, measured waist size, and BMI measurements over time.” Id. In support of his assertion that the ALJ erred by not making an obesity finding, Plaintiff cites to his testimony regarding his height and weight, and to eight notations in the record of his BMI. Pl.'s Br. 26. The undersigned as reviewed each of the cited pages referencing Plaintiff's BMI and each citation consists of passing references to Plaintiff's BMI. Seven of the eight citations are notations made at doctors' visits when recording Plaintiff's vital signs-including height, weight, blood pressure, heart rate, and BMI. Tr. 316 (treatment record from Pain Management); 443, 447, 451, 455, 459, 463 (treatment records from Complete Healing and Wellness Center). None of these notations include an assessment or diagnosis of obesity. In the records from Complete Healing and Wellness Center, after providing Plaintiff's vital signs the nurse practitioner notes Plaintiff's general appearance as “well developed, well nourished, in no acute distress.” Id. The remaining record, the Disability Determination Explanation on the reconsideration level, reports Plaintiff's BMI at 30.8 with a self-reported height of 70 inches and self-reported weight of 215 pounds. Tr. 109. Notably, the State agency physician reviewing Plaintiff's file on reconsideration indicated that “the evidence fails to document any severe, refractory pain or associated mobility deficits to support[t] that the claimant is incapable of sustaining the reduced range of light work outlined above.” Tr. 120. None of these references to Plaintiff's BMI contain any suggestion of a functional limitation associated with obesity.
Nowhere during the administrative process did Plaintiff allege obesity as an impairment or that his BMI affected his functional capacity. In his hearing testimony Plaintiff did not describe obesity as an impairment, nor did he allege obesity as an impairment in his disability reports.
Plaintiff argues that despite not listing depressive disorder or bipolar disorder in his disability reports the ALJ considered these impairments and found them severe. Pl.'s Reply at 6-7. However, Plaintiff testified regarding his depression at the administrative hearing, and the record contains evidence of various mental health diagnoses and treatments that were considered by the ALJ. Tr. 14.
The Commissioner is to “consider only impairment(s) [a claimant] says [she has] or about which [the Commissioner] receive[s] evidence.” 20 C.F.R. § 404.1512(a). The burden of proof and production rests on Plaintiff to show limitations. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (noting burden of proof and production is on claimant at steps one through four of the sequential evaluation); Russell v. Chater, C/A No. 94-2371, 1995 WL 417576, at *3 (4th Cir. July 7, 1995) (noting a claimant must explain the basis of his theory as to how obesity limits his functional ability; speculation is not permitted).Maner v. Colvin, No. CA 1:12-2969-RBH, 2014 WL 4656383, at *15 (D.S.C. Sept. 17, 2014). “[T]he courts frown upon ‘sandbagging' administrative decisions by presenting evidence or issues for the first time upon judicial review which could have been raised before the ALJ.” Frederick v. Comm'r of Soc. Sec., No. CIV.A. 10-11349, 2011 WL 1518966, at *9 (E.D. Mich. Mar. 25, 2011), report and recommendation adopted, No. 10-11349, 2011 WL 1518913 (E.D. Mich. Apr. 20, 2011).
Even if the ALJ erred by not considering Plaintiff's alleged obesity, the undersigned finds such error to be harmless as Plaintiff has not identified any functional limitations that can be attributed to obesity. McCall v. Colvin, No. CIV.A. 5:14-1185-BHH, 2015 WL 5608205, at *3 (D.S.C. Sept. 22, 2015) (finding any error by ALJ for failing to find obesity as a severe impairment to be harmless where plaintiff did not reference “anything in the record concerning her alleged obesity's impact on her ability to work or perform any functional activities.”); Maner v. Colvin, No. CA 1:12-2969-RBH, 2014 WL 4656383, at *15 (citing Elder v. Astrue, C/A No. 09-2365, 2010 WL 3980105, at *9 (D.S.C. Oct. 8, 2010) (“As neither her medical records, nor her own statements, provide [evidence of the effect on her functioning or ability to work resulting from] her obesity, any failure of the ALJ to explicitly address [the claimant]'s obesity is only harmless error.”)). See also Gann v. Astrue, No. 1:09CV355, 2010 WL 3811942, at *11 (W.D. N.C. Sept. 1, 2010), report and recommendation adopted, No. 1:09CV355, 2010 WL 3811515 (W.D. N.C. Sept. 27, 2010) (finding that even if the ruling required the ALJ to consider the plaintiff's alleged obesity, “plaintiff has failed to identify any functional limitations attributable to his supposed obesity or how such alleged obesity impacted other impairments. It cannot, therefore, be error for the ALJ to not consider an impairment that did not exist, was not diagnosed, and was not complained of to doctors or to the administration.”).
Furthermore, “‘the state agency physicians reviewed the medical records, which included notations of his height and weight, and opined that [Plaintiff] could perform [light] work, with additional limitations. This constitutes substantial evidence supporting [the ALJ's] determination.'” MohamedKair G. v. Saul, No. CV TMD 19-1730, 2020 WL 3412997, at *5 (D. Md. June 22, 2020) (internal citations omitted). Plaintiff fails to explain why a limitation to light work does not adequately account for any limitations resulting from his alleged obesity. Plaintiff has not shown that his weight, either alone or in combination with his other impairments, warranted a more restrictive RFC. No reversible error is shown by the ALJ's failure to specifically discuss Plaintiff's obesity in her decision.
III. Conclusion and Recommendation
The court's function is not to weigh evidence or substitute its judgment for that of the Commissioner but is to determine whether the ALJ's weighing of the evidence is supported by substantial evidence in the record. See generally Hays v. Sullivan, 907 F.2d at 1456 (noting judicial review limited to determining whether findings supported by substantial evidence and whether correct law was applied). Based on the foregoing, the undersigned recommends that the Commissioner's decision be affirmed.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”