Opinion
Civil Action No. 5:19-2595-BHH-KDW
10-21-2020
John S. Stoner, Plaintiff, v. Andrew M. Saul, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION OF 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 the final decision of the Commissioner of Social Security ("Commissioner") denying his claim for Disability Insurance Benefits ("DIB") pursuant to the Social Security Act ("the Act"). For the reasons that follow, the undersigned recommends that the Commissioner's decision be reversed and remanded. I. Relevant Background
A. Procedural History
On July 5, 2015, Plaintiff protectively filed for DIB under Title II of the Act. Plaintiff alleges a disability onset date of May 7, 2015. Tr. 228. After being denied initially, Tr. 74, and upon reconsideration, Tr. 88, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), Tr. 126-27. The ALJ conducted a hearing on March 7, 2018. Tr. 36-73. The ALJ issued a partially favorable decision on July 5, 2018. Tr. 15-27. The ALJ concluded that Plaintiff was not disabled prior to October 9, 2017, but became disabled on that date and continued to be disabled through the date of his decision. Tr. 19. Plaintiff requested review of this decision from the Appeals Council. Tr. 193-96. After granting Plaintiff's request for more time, Tr. 13-14, the Appeals Council denied his request for review on April 18, 2019, Tr. 7-11, making the ALJ's July 2018 decision the Commissioner's final decision for purposes of judicial review. After granting Plaintiff's request for an extension of time to file a civil action, Tr. 1-5, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a Complaint filed September 13, 2019. ECF No. 1.
The ALJ's Decision indicates that Plaintiff also filed a claim for Supplemental Security Income ("SSI"). Tr. 19. However, in his Brief Plaintiff denies filing an SSI claim. Pl.'s Br. 1, n.1, ECF No. 15. The administrative record does not contain an exhibit for an application for DIB or SSI; however, the Disability Determination and Transmittals in the record refer only to DIB claims. See Tr. 74, 88.
B. Plaintiff's Background
Plaintiff was born in October 1962 and was 52 years old as of his alleged onset date of May 7, 2015. Tr. 228. In a July 25, 2015 form Disability Report-Adult, Plaintiff indicated that he obtained a GED in 1980, did not attend special education classes, and had not completed any type of specialized job training, trade or vocational school. Tr. 220. He listed his past relevant work ("PRW") as industrial insulator for a construction company (Apr. 2000-Dec. 2013), ship installer for a shipping company (Jan. 2014-June 2014), and insulation installer for a temp agency (Aug. 2014-May 2015). Tr. 221. Plaintiff indicated that he stopped working on May 7, 2015 because of his medical conditions of neck pain, cervical radiculopathy, back pain, lumbar radiculopathy, carpal tunnel syndrome, depression, and anxiety. Tr. 219-220.
A Disability Report-Appeal dated December 21, 2015, indicated a change in Plaintiff's condition that occurred November 2015, and noted that he had "anterior cervical discectomy fusion 3 level on 11/24/2015. Physical mobility is limited. Anxiety, depression and forgetfulness have increased." Tr. 257. Plaintiff also indicated that he was diagnosed with anemia in September 2015. Id. Regarding changes in his activities, Plaintiff indicated that since his surgery his wife helps him to get in and out of the shower and with getting dressed. Plaintiff noted that he is able to sleep for only two hours at night sitting upright because he "cannot lie down due to pain. Stress continues to increase. Experiencing sleep apnea." Tr. 263. In a subsequent Disability Report-Appeal dated May 9, 2016, Plaintiff indicated additional changes to his conditions that occurred in March 2016 described as follows: "Experiencing intense neck pain, decreased mobility in neck. Back pain has gotten worse. Mentally I am forgetting things, not remembering if I took my medications. Less and less sleep." Tr. 278. Plaintiff also indicated a new condition that started in February 2016 of having difficulty swallowing. Id. Plaintiff described it as feeling "like there is a lump preventing food or liquid from going down. Experiencing anxiety about eating. I am scared I am going to choke. Experiencing shortness of breath." Id. Plaintiff did not note any additional changes to his activities. Tr. 284.
C. Administrative Proceedings
On March 7, 2018, Plaintiff appeared with counsel at an administrative hearing in Charleston, South Carolina and testified regarding his application for DIB. Tr. 36. Vocational Expert ("VE") Thomas C. Neil, PhD also appeared by telephone and testified at the hearing. Tr. 38.
1. Plaintiff's Testimony
In response to questions from the ALJ Plaintiff testified that he lived in Summerville, South Carolina, was 55 years old, and has a GED. Tr. 39.
In response to questions from his attorney Plaintiff confirmed that he has not worked since May 2015. Tr. 39. Plaintiff stated that he is married and has two children that are in the household. Tr. 39-40. Plaintiff testified that since he last worked his mother and mother-in-law have been helping with his bills. Tr. 40. He stated that his wife is employed only during tax season and she answers the phones and takes appointments. Id. Plaintiff confirmed that he had not received Worker's Compensation or long-term disability benefits and, therefore, had incentive to return to work. Id. Plaintiff discussed his past work and testified that he did industrial and commercial insulation work for Ashland. Tr. 41. He also testified that he worked for another company where he was "hired in as an insulator worker and a[s] times got tight we would be called in to help pipe fitters." Id. Plaintiff confirmed that while working he had lifted up to 100 pounds. Tr. 42. Plaintiff testified that he frequently carried his "tools on and off, a lot of climbing and you got your tools on you so that could be 50 pounds plus." Id.
Plaintiff testified that he had back surgery in 2001 and was able to return to work after that. Tr. 42. He testified that when he stopped working in 2015, he was still having problems with his low back, and "that's when it started getting really worse on [him]." Tr. 43. Plaintiff stated that if he was kneeling down or getting into "little positions" he would "cramp up real bad or [he] would have like shooting pains going down both legs, single legs and a lot of . . . prickling of the feet." Id. Plaintiff confirmed that about three years prior to 2015 he hurt his neck lifting a piece of heavy furniture. Id. Plaintiff stated that he had "excruciating pain" throughout his neck, and pain going down his arms. Tr. 43-44. Plaintiff testified that his first doctor gave him six steroid injections in his neck and Plaintiff had to go to the emergency room because his blood pressure was 200/160. Tr. 44. Plaintiff testified he stopped with the injections because of the effect on his blood pressure. Id. Plaintiff confirmed that he had two rounds of physical therapy but it "didn't help." Tr. 45. Plaintiff stated that he then had radiofrequency oblation but "the next day the pain was still there, it did not help whatsoever" and he was told there was nothing else they could do. Id. Plaintiff confirmed that he had neck surgery in November 2015, and "it helped for a little while." Id. Plaintiff stated his pain level was 50-75% better. Id. Plaintiff stated the relief lasted about four months and then one morning he woke up experiencing "almost the same pain what happened to [him] when [he] was lifting up that heavy cabinet." Tr. 46. Plaintiff confirmed that since that time doctors have tried conservative treatments of physical therapy—which Plaintiff testified did "[n]othing at all"—and medication. Id. Plaintiff testified that before his surgery he was taking morphine and Percocet, but after the surgery he stopped taking the morphine and remained on Percocet. Id. Plaintiff testified that he is "getting various excruciating pain" that has been running down both arms constantly. Tr. 47. Plaintiff testified that he has kept his right arm in an elastic wrap since October 2017. Id. Plaintiff stated that he is unable to get a full night's sleep because he is constantly moving to get in a comfortable position. Tr. 48. Plaintiff testified that if he tries to go shopping with his wife, after 15 minutes he will start getting pain "running down [his] leg" in addition to the neck pain and he will "end up usually going to the van . . . ." Id. When asked, Plaintiff testified that since he stopped working, he could not have gone back to a job where he had to be on his feet for at least half of an eight-hour workday. Tr. 49. Plaintiff testified that his neck and back problems have affected his ability to lift and carry because he has a "lot of pain and it can hit [him] in all different ways." Id. Plaintiff's attorney asked him about a physician's notation that Plaintiff had been lifting weights. Id. Plaintiff stated that the shots he was given for his carpal tunnel syndrome were not working and he Googled that doing wrist curls would alleviate the numbness and prickling in his hands. Tr. 49-50. Plaintiff stated that he was using five-pound weights to do the wrist curls. Tr. 50. Plaintiff also confirmed that he was exercising by walking around the track at the gym for 20 minutes. Tr. 50-51. Plaintiff denied lifting heavy free weights. Tr. 51. He stated that he was using some machines with ten-pound weights but denied lifting anything heavier. Id. Plaintiff stated that he spoke with the doctor about the entry in the record that he was using heavy weights and she denied writing that entry and stated that it was a mistake. Tr. 52. Plaintiff confirmed that he had carpal tunnel syndrome and the left was worse than the right. Id. Plaintiff confirmed that it affected his ability to use the computer and also impacted his sleep because he would wake up with a swollen hand or the prickling sensation. Id. Plaintiff testified that he had surgery in January, and it has helped with the prickling feeling but he still has some swelling and "very sore wrists." Tr. 52-53. Plaintiff stated that he is able to use the computer, but he does not "get on the computer that much." Tr. 53. Plaintiff testified that he went to the doctor three weeks ago and after describing more neck pain he was given an MRI and is scheduled to meet with the doctor on March 29th. Tr. 53-54. Plaintiff testified that his low energy problem resolved when he was put on testosterone, but it does not help with his pain. Tr. 54. Plaintiff testified that he uses a CPAP machine at night but stopped using it during flu season because he was afraid of germs. Tr. 54-55. Plaintiff stated that he could not do a job that required him to lift 20 pounds and frequently lift 10 pounds. Tr. 55.
The ALJ resumed questioning of Plaintiff and asked about work he did in 2003 for Jacob's Field Services North America. Tr. 55. Plaintiff testified that the work was in the insulation field and he was a "working supervisor" and did the same amount of lifting and walking that he did in his other jobs. Id. Plaintiff testified that his work in 2008 for W.R. Derrick and Company was commercial insulation work with the same walking and lifting requirements. Tr. 56.
Plaintiff confirmed that at one point he was being considered for additional neck surgery but that was changed to pain management. Tr. 56-57. Plaintiff stated that now he is again being considered for surgery. Tr. 57. The ALJ questioned Plaintiff about the results of his previous surgery and Plaintiff's counsel directed the ALJ to the relevant exhibits in the administrative record. Tr. 58-60. The ALJ confirmed that Plaintiff's most recent surgical recommendation was based on the results of an MRI. Tr. 62-63. Plaintiff's counsel noted that those records were not in the file and the ALJ indicated they would not be needed because Plaintiff "turns 55 in October [20]17, his work is all medium, at that point he's going to be disabled anyway." Tr. 63.
2. VE's Testimony
Based on his review of the record and Plaintiff's testimony, the VE identified Plaintiff's past work as industrial insulator, Dictionary of Occupational Titles ("DOT") number 869.664-014, heavy, SVP of 4, semiskilled; commercial insulator, DOT number 863.364-014, medium, SVP of 6; pipe fitter, DOT number 862.281-022, heavy, SVP of 7, skilled; and industrial maintenance, DOT number 899.381-010, medium, SVP of 7. Tr. 65. The ALJ asked the VE to assume a claimant 55 years old, with the equivalence of a high school education, the ability to perform light work and unable to climb ladders. Tr. 66. The ALJ also limited the individual to occasional overhead reaching with the bilateral upper extremities; frequent handling and fingering with the left upper extremity; limited to understanding, remembering, and carrying out simple instructions; and no public interaction. Id. The ALJ stated that would eliminate Plaintiff's PRW, and asked the VE if there were other jobs he could perform. Id. Before identifying any jobs the VE testified that the DOT does not address overhead reaching and any jobs he identified were based on his observations or he asked HR representatives. Id. The VE identified the following examples of light, unskilled positions within the parameters of the hypothetical: bagger, DOT number 920.687-018, light, SVP of 1, nationally 27,000, South Carolina 1,500; garment sorter, DOT number 222.687-014, light, SVP of 2, unskilled, nationally 6,000, South Carolina 450; and cleaner/housekeeper, DOT number 323.687-014, light, SVP of 2, unskilled, nationally 250,000, South Carolina 1,700. Tr. 66-67.
The ALJ asked if the jobs would be available with the additional limitation of standing and walking for four hours each in an eight-hour day. Tr. 67. The VE testified that because the standard for light work requires the ability to stand and/or walk for six hours out of an eight-hour day, a limitation to four hours would make the identified work inapplicable and would eliminate all light work. Id.
Plaintiff's counsel asked if there were any jobs skills from Plaintiff's PRW that would transfer to jobs at either the light or sedentary exertional levels and the VE responded in the negative. Tr. 68. Counsel asked if the identified jobs would be significantly affected if the individual was unable to do any frequent lifting and carrying, and all lifting and carrying was limited to occasional. Tr. 69. The VE testified that "frequent lifting in regard to the light work identified would not be applicable. We do not find occasional lifting except when we move into unskilled work." Id.
Counsel asked about the effects on the cited jobs with limitations in neck and head movement, specifically the limitations of occasionally looking down, frequently looking left or right, never looking up, and occasional static position. Id. The VE testified that would eliminate the positions based on the limitation of never looking up. Id. Counsel asked if any of the cited jobs could be performed if handling were limited to occasional, and the VE responded that would eliminate all jobs at the light level. Tr. 69-70. The VE testified that occasional fingering would not have the same effect because fingering is constant for only a certain type of job. Tr. 70.
Counsel asked if there was "a threshold level from a percentage of a workday or workweek where the ability to attend to work tasks is . . . significantly affected, which, at which the work would be precluded?" Tr. 71. The VE testified that based on his experience and from feedback from HR representatives, at 20% the individual is not meeting performance standards so there would be no work. Id. The VE testified that missing three or more days per month is 15-17% and that seemed to be significant. He further testified that based on feedback from HR representatives, absenteeism of three days per month is not meeting performance standards. Id. II. Discussion
A. The ALJ's Findings
In his July 5, 2018 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, 2018.
2. The claimant has not engaged in substantial gainful activity since the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. Since the alleged onset date of disability, May 7, 2015, the claimant has had the following severe impairments: degenerative disc disease of the cervical spine status-post discectomy, left carpal tunnel syndrome and anxiety/depression (20 CFR 404.1520(c) and 416.920(c)).
4. Since the alleged onset date of disability, May 7, 2015, the claimant has not had 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 since May 7, 2015, the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) with: no climbing ladders/ropes/scaffolds; occasional stooping and crawling; occasional overhead reaching with the bilateral upper extremities; and, frequent handling/fingering with the left upper extremity. He would further be limited to understanding, remembering, and carrying out simple instructions with no ongoing public interaction.
6. Since May 7, 2015, the claimant has been unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. Prior to the established disability onset date, the claimant was an individual closely approaching advanced age. On October 9,
2017, the claimant's age category changed to an individual of advanced age (20 CFR 404.1563 and 416.963).Tr. 21-22, 25-27.
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. Prior to October 9, 2017, 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. Beginning October 9, 2017, the claimant has not been able to transfer job skills to other occupations (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2.
10. Prior to October 9, 2017, the date the claimant's age category changed, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 CFR 404.1569, 404.1569a, 416.969, and 416.969a).
11. Beginning on October 9, 2017, the date the claimant's age category changed, considering the claimant's age, education, work experience, and residual functional capacity, there are no jobs that exist in significant numbers in the national economy that the claimant could perform (20 CFR 404.1560(c), 404.1566, 416.960(c), and 416.966).
12. The claimant was not disabled prior to October 9, 2017, but became disabled on that date and has continued to be disabled through the date of this decision. His disability is expected to last twelve months past the onset date (20 CFR 404.1520(g) and 416.920(g)).
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).
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. These considerations are sometimes referred to as the "five steps" of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).
The Commissioner's regulations include an extensive list of impairments ("the Listings" or "Listed impairments") the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the listed impairments, found at 20 C.F.R. Part 404, Subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. § 404.1525. If the medical evidence shows a claimant meets or equals all criteria of any of the listed impairments for at least one year, he will be found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that his impairments match several specific criteria or be "at least equal in severity and duration to [those] criteria." 20 C.F.R. § 404.1526; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
A claimant is not disabled within the meaning of the Act if s/he can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, § 404.1520(a), (b); Social Security Ruling ("SSR") 82-62 (1982). The claimant bears the burden of establishing an 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 s/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). 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 erred by failing to properly evaluate his subjective complaints, (3) the ALJ's reasons for discrediting the opinions of his treating physician are not supported by substantial evidence, and (3) the Commissioner failed to sustain his burden of establishing that there is other work in the national economy that Plaintiff can perform. Pl.'s Br. 1. The Commissioner asserts that "substantial evidence supports the ALJ's decision that Plaintiff did not meet the strict standard for disability under the Act prior to October 9, 2017." Def.'s Br. 15, ECF No. 17.
1. The ALJ's Consideration of Plaintiff's Subjective Complaints
SSR 16-3p provides a two-step process for evaluating an individual's symptoms. First, the ALJ must determine whether the individual has a medically determinable impairment "that could reasonably be expected to produce the individual's alleged symptoms." SSR 16-3p, 2017 WL 5180304, at *3. In the second step the ALJ must "evaluate the intensity and persistence of an individual's symptoms such as pain and determine the extent to which an individual's symptoms limit his or her ability to perform work-related activities . . . ." Id. at *4. "In considering the intensity, persistence, and limiting effects of an individual's symptoms, we examine the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record." Id.
The ALJ outlined the two-step process that he is required to follow when considering Plaintiff's symptoms. Tr. 22-23. This ALJ discussed Plaintiff's hearing testimony regarding his spinal, neck, and carpal tunnel surgeries; Plaintiff's discussion on the pain he experienced; and his unsuccessful treatments to alleviate his pain. Tr. 23. The ALJ determined that Plaintiff's "statements about the intensity, persistence, and limiting effects of his symptoms . . . are not completely supported by the objective evidence of record." Id. The ALJ then discussed the medical record. He noted that that "there is no indication that the claimant has required emergency treatment or repeated inpatient hospitalization" for his conditions of degenerative disc disease and left carpal tunnel syndrome. Id. The ALJ found that while the fact that Plaintiff underwent a discectomy and fusion in November 2015 after conservative treatment failed "would normally weigh in the claimant's favor, it is offset by the fact that the record reflects that the surgery was generally successful in relieving the symptoms." Id. The ALJ cites to a December 2015 note from Dr. D'Agostino that Plaintiff was "doing great after his surgery (Exhibit 11F)." Id. But the ALJ then noted that by February 2016 Plaintiff was referred to pain management and received cervical facet injections, and in May 2016 Dr. D'Agostino prescribed cervical epidural injections and physical therapy for Plaintiff's ongoing neck pain. Id. Citing to a July 14, 2016 progress note from Dr. D'Agostino, the ALJ indicated that Plaintiff admitted that his left upper extremity numbness had resolved. Tr. 23. However, what the ALJ does not report is that in the same progress note, Plaintiff reported gradually worsening neck pain and stiffness and low back pain. See Tr. 612. The ALJ noted that Plaintiff "underwent left carpal tunnel release in January 2018 after conservative treatment failed (Exhibit 22F)." Tr. 23. The ALJ concluded: "Overall, this conservative course of treatment is inconsistent with a level of severity that would preclude the claimant from sustaining any work activity." Id.
Plaintiff argues that the ALJ applied an incorrect legal standard in discrediting his statements because of a lack of objective support. Pl.'s Br. 17. Citing to Lewis v. Berryhill, 858 F.3d 858, 870 (4th Cir. 2017), Plaintiff asserts that he was "'not required to meet an additional burden of proffering objective evidence of the intensity of [his] pain.'" Id. at 18. Plaintiff contends the "record is replete with objective evidence with supports [his] subjective complaints. And contrary to the ALJ's findings, that surgery was not successful in relieving his symptoms." Id. The Commissioner argues that substantial evidence supports the ALJ's evaluation of Plaintiff's subjective complaints and "the ALJ properly considered the factors outlined in the Commissioner's regulations." Def.'s Br. 15. On reply Plaintiff asserts that the Commissioner "does not explain how the ALJ's analysis was sustainable." Pl.'s Reply 1, ECF No. 18. Plaintiff argues that the Commissioner "simply summarizes various medical records" relating to his treatment without providing analysis. Id. at 2.
The ALJ based his finding of inconsistency regarding the severity of Plaintiff's symptoms on the conservative treatment that Plaintiff received. However, as the ALJ also noted, Plaintiff's conservative treatment failed. "The fact that Plaintiff did not require hospitalization does not necessarily mean that his treatment was conservative and, thus, not indicative of a lack of severity. Because '[m]any potentially disabling conditions can be treated by routine and conservative treatment,' the characterization of treatment as conservative 'alone does not provide any insight into the severity of a given condition and may even belie the condition's seriousness.'" Wilson v. Colvin, No. 8:15-CV-04185-MGL-JDA, 2016 WL 6471904, at *15 (D.S.C. Oct. 19, 2016) (quoting Viverette v. Astrue, No. 5:07-cv-395-FL, 2008 WL 5087419, at *2 (E.D.N.C. Nov. 24, 2008)), report and recommendation adopted, No. CV 8:15-4185-MGL, 2016 WL 6433500 (D.S.C. Oct. 31, 2016). Here, the ALJ relies on Plaintiff's unsuccessful conservative treatment to support his finding that it is inconsistent with a level of severity that would prevent Plaintiff from working. The ALJ offers as explanation that Plaintiff's successful surgery offsets the severity of Plaintiff's symptoms. However, Plaintiff argues that the "ALJ's finding that 'surgery was generally successful in relieving the symptoms' is not supported by substantial evidence." Pl.'s Br. 19. Plaintiff cites to records documenting his gradually worsening neck pain and argues that the "evidence supports a finding that [Plaintiff's] symptoms never improved, despite treatment, during the relevant period from his alleged onset date of May 7, 2015 through October 8, 2017." Id. at 20. The ALJ acknowledged that, after his surgery in November 2015, Plaintiff was referred for pain management in February 2016 due to increased and ongoing neck pain. Tr. 23. SSR 16-3p requires the ALJ to explain inconsistencies he found and how his evaluation of the claimant's symptoms led to his conclusion. SSR 16-3p, 2016 WL 1119029, at *8. "[R]emand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review." Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (citing Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)). Here, the ALJ does not explain how Plaintiff's increased pain and referral to pain management after surgery demonstrates that Plaintiff's surgery was "generally successful" in relieving his pain symptoms such that Plaintiff could perform work activity.
After his discussion regarding Plaintiff's conservative treatment, on the next page of the Decision the ALJ outlined doctors' reports that he determined failed to "reveal the type of significant clinical and laboratory abnormalities one would expect if the claimant were disabled for the entire period since the alleged onset date." Tr. 24. The ALJ cited to records from 2015 including a cervical MRI; lumbar MRI; a notation of normal tone, strength, and sensation; an EMG; and normal neurological exams. Id. The ALJ cited to records from 2016 that included cervical spine x-rays, examinations revealing normal motor strength and sensation, and cervical and lumbar MRIs. Id. The ALJ cited to records from 2017 that included a February 2017 normal neurological exam, a March nerve conduction study revealing bilateral carpal tunnel syndrome, and reports of decreased range of motion in September and November. Id. The ALJ's final citation to the record was from a January 2018 treatment note that indicated Plaintiff's "low back pain was becoming a bigger problem with increased complaints of pain and decreased range of motion on exam (Exhibit 21F)." Id. While some of these reports include normal results, there are also objective reports noting stenosis, neuropathy, numbness, spondylosis, and complaints of back and neck pain. Citing to these inconsistent reports without further explanation "frustrates meaningful review" of the ALJ's findings.
The undersigned notes that some of the ALJ's citations to exhibits are incorrect. For example, he cites to Exhibit 17F for a May 2016 report of Plaintiff's 5/5 strength and intact sensation. However, Exhibit 17F is a March 2017 nerve conduction study on Plaintiff's wrists. The ALJ also cites to Exhibit 20F for reports of a March 2016 lack of radicular symptoms, a July 2016 normal neurologic exam, and September and November 2017 exam findings of significantly decreased range of motion of cervical and lumbar spine; but, Exhibit 20F contains notes related to Plaintiff's treatment for sleep apnea.
The ALJ also cites to Plaintiff's activities as described in his Function Reports from 2015 and 2016. Tr. 24. The ALJ noted that Plaintiff described "preparing simple meals, sweeping, spending time with this grandchildren, and shopping" and determined that Plaintiff's activities "are not limited to the extent one would expect, given his complaints of disabling symptoms and limitations (Exhibits 4E and 8E)." Id.
Plaintiff noted that in citing his activities the ALJ failed to note Plaintiff's qualifying statements regarding the activities and the limited activities he listed in his Function Reports. Pl.'s Br. 21-22. Remarkably, when writing in support of the ALJ's decision the Commissioner included qualifiers to Plaintiff's activities that the ALJ did not include. The Commissioner noted that Plaintiff prepared simple meals "occasionally," "assisted" with household cleaning, drove "with assistance," and shopped "with his wife." Def.'s Br. 20. Although the ALJ determined Plaintiff's activities were not as limited as "one would expect," the ALJ does not explain how Plaintiff's activities are consistent with his assessed RFC. "An ALJ may not consider the type of activities a claimant can perform without also considering the extent to which [he] can perform them." Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (emphasis in original) (citing Brown v. Commissioner, 873 F.3d 251, 263 (4th Cir. 2017)). See Lewis v. Berryhill, 858 F.3d at 868 n.3 (rejecting the ALJ's conclusion that "the ability to perform incremental activities interrupted by periods of rest," such as driving short distances, watching television, and performing tasks with assistance, demonstrates a claimant is capable of work).
The undersigned finds that the ALJ's decision does not build a logical bridge between the evidence and his conclusions. Accordingly, the undersigned recommends the court find substantial evidence does not support the ALJ's evaluation of Plaintiff's subjective allegations.
2. Plaintiff's Remaining Allegations
Plaintiff also alleges that the ALJ gave less than controlling weight to the opinion of his treating physician because the physician's assessment "'was based primarily on the claimant's subjective symptoms,'" which the ALJ found unreliable. Pl.'s Br. 23-24. Because the undersigned recommends remand so that the ALJ may reevaluate Plaintiff's subjective statements, this may affect his consideration of the treating physician's opinion. Plaintiff also alleges the Commissioner failed to satisfy the burden of establishing he could perform other work in the national economy because of an incomplete hypothetical posed to the VE. Because the undersigned recommends remand, detailed analysis of this allegation of error is not possible at this point. See Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3d Cir. 2003) (remanding on a particular ground and declining to address claimant's additional arguments). However, on remand the ALJ should also consider both of these allegations. III. Conclusion and Recommendation
The court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported as a matter of fact and law. Based on the foregoing, the undersigned cannot determine that the Commissioner's finding is supported by substantial evidence or without legal error.
Accordingly, pursuant to the power of the court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in Social Security actions, it is recommended that the Commissioner's decision be reversed and remanded for further administrative action as detailed within.
IT IS SO RECOMMENDED. October 21, 2020
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge