Opinion
Civil Action 2:20-02782-RBH-MGB
11-30-2021
EDWARD WEBB, Plaintiff, v. KILOLO KIJAKAZI, [1]Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Plaintiff Edward Webb (“Plaintiff”), brought this action pursuant to Section 205(g) of the Social Security Act, as amended, (42 U.S.C. Section 405(g)), to obtain judicial review of a final decision of the Commissioner of Social Security Administration (the “Administration”) regarding his claim for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under the Social Security Act (the “Act”). See Section 205(g) of the SSA, as amended, 42 U.S.C. § 405(g). This matter was referred to the Magistrate Judge for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and Title 28, United States Code, Section 636(b)(1)(B). For the reasons set forth herein, the undersigned recommends that the Commissioner's decision be reversed and remanded for further proceedings.
RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS
Plaintiff was 44 years old on his amended alleged disability onset date of May 16, 2017. (R. at 15, 78, 88, 101, 115, 232.) Plaintiff alleged disability due to a pin and screw in his left knee, a back injury causing a pinched nerve, wobbly legs, and paranoid schizophrenia. (Id. at 78, 88, 102, 116.) Plaintiff has past relevant work as a cook and a warehouse worker. (Id. at 30, 90, 96, 112, 126.)
On June 1, 2017, Plaintiff filed an application for DIB and an application for SSI. (Id. at 78, 88.) His applications were denied initially on October 27, 2017, and on reconsideration on March 12, 2018. (Id. at 78-87, 88-97, 98, 100, 101-13, 115-27, 129, 131.) Plaintiff requested a hearing before an Administrative Law Judge (the “ALJ”) on April 5, 2018. (Id. at 155.) The hearing was held on June 4, 2019. (Id. at 38-72.) On August 7, 2019, the ALJ issued a decision and found that Plaintiff was not disabled. (Id. at 12-32.) The Appeals Council denied Plaintiff's request for review on June 3, 2020, making the ALJ's decision the Commissioner's final decision for purposes of judicial review. (Id. at 1-6.)
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 December 31, 2021.
(2) The claimant has not engaged in substantial gainful activity since June 14, 2013, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
(3) The claimant has the following severe impairments: lumbar degenerative disc disease, left knee degenerative joint disease (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, the undersigned finds 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 can frequently climb ramps, stairs; can occasionally climb ladders, ropes, scaffolds; can frequently balance, stoop; can occasionally kneel, crouch, and crawl.
(6) The claimant is capable of performing past relevant work as a cook. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565 and 416.965).
(7) The claimant has not been under a disability, as defined in the Social Security Act, from June 14, 2013, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).(Id. at 15-32.)
APPLICABLE LAW
I. Relevant Statutory Law
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a “disability.” 42 U.S.C. § 423(a). The Act also provides that SSI disability benefits shall be available for aged, blind, or disabled persons who have income and resources below a specific amount. See 42 U.S.C. § 1381 et seq. “Disability” is defined in the Act as the 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 twelve months.” 42 U.S.C. § 423(d)(1)(A) (DIB context); 42 U.S.C. § 1382c(a)(3)(A) (SSI context).
“[T]he definition of disability is the same under both DIB and SSI....” Morgan v. Saul, 9:19-CV-1390-BHH-BM, 2020 WL 3318630, at *1 n.1 (D.S.C. June 3, 2020) (citing Emberlin v. Astrue, No. 06-4136, 2008 WL 565185, at *1 n.3 (D.S.D. Feb. 29, 2008)).
To facilitate a uniform and efficient processing of disability claims, the 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 which equals an illness contained in the
Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents him from doing substantial gainful employment. 20 C.F.R. § 404.1520 (DIB context); 20 C.F.R. § 416.920 (SSI context). If an individual is found not disabled at any step, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a)(4) (DIB context); 20 C.F.R. § 416.920(a)(4) (SSI context).
The claimant bears the burden of proof with respect to the first four steps of the analysis. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); Patterson v. Comm'r of Soc. Sec. Admin., 846 F.3d 656, 659 (4th Cir. 2017). Once the claimant has established an inability to return to his past relevant work, the burden shifts to the Commissioner to show that the claimant-considering his age, education, work experience, and residual functional capacity-can perform alternative jobs and that such jobs exist in the national economy. SSR 82-62, 1982 WL 31386, at *3 (1982); Grant, 699 F.2d at 191; Pass, 65 F.3d at 1203; Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016).
II. Standard of Review
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the Commissioner supported his findings with substantial evidence and applied the correct law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015); Woods v. Berryhill, 888 F.3d 686, 691 (4th Cir. 2018); Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 94 (4th Cir. 2020); 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). Consequently, the Act precludes a de novo review of the evidence and requires that the court uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988); Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012); Mascio, 780 F.3d at 640; Dowling v. Comm'r of Soc. Sec. Admin., 986 F.3d 377, 383 (4th Cir. 2021); 42 U.S.C. § 405(g).
“Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion.” Dowling, 986 F.3d at 383 (citing Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015)). It is “more than a mere scintilla of evidence but may be less than a preponderance.” Pearson, 810 F.3d at 207 (citing Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012)). In reviewing for substantial evidence, the court does not undertake to “reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ].” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); Hancock, 667 F.3d at 472; Arakas, 983 F.3d at 95; Dowling, 986 F.3d at 383. “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, ” the reviewing court must defer to the ALJ's decision. Shinaberry v. Saul, 952 F.3d 113, 123 (4th Cir. 2020) (citing Hancock, 667 F.3d at 472).
However, the court does not “reflexively rubber-stamp an ALJ's findings.” Dowling, 986 F.3d at 383 (citing Lewis v. Berryhill, 858 F.3d 858, 870 (4th Cir. 2017)). An ALJ may not cherrypick, misstate, or mischaracterize material facts. Arakas, 983 F.3d at 99 (citing Lewis, 858 F.3d at 869). Rather, ALJs “must ‘build an accurate and logical bridge' from the evidence to their conclusions.” Id. at 95 (quoting Monroe, 826 F.3d at 189).
DISCUSSION
Plaintiff contends that the ALJ erred in finding that he was not disabled. (See generally Dkt. No. 16.) More specifically, Plaintiff objects to the ALJ's residual functional capacity (“RFC”) finding and contends that the ALJ committed reversible error by: (1) “selectively extracting isolated evidence from the record which was unfavorable to Mr. Webb rather than considering the entire record in context”; (2) “failing to liberally construe the social security act in his favor”; (3) “improperly interjecting his own medical opinion concerning the severity of Mr. Webb's impairment”; and (4) “placing undue weight upon the fact that Mr. Webb could perform some household chores”. (Dkt. No. 16 at 9.) He argues that the ALJ's determination that he could perform light work with certain limitations is not supported by substantial evidence. (Id. at 14.) Plaintiff further contends that the ALJ erred in determining that Plaintiff's impairments did not meet the criteria of Listing 1.04(a) and in finding that Plaintiff's prescribed assistive devices were not medically necessary. (Id. at 12, 16.) The Commissioner responds that the ALJ supported his findings with substantial evidence and that his decision should not be disturbed merely because the record contains conflicting evidence. (Dkt. No. 17 at 10-22.) Upon review of the ALJ's decision and the record as a whole, the undersigned agrees with the Plaintiff and recommends that the Commissioner's decision be reversed and remanded for further proceedings.
Because Plaintiff does not argue that the ALJ erred in his analysis of Plaintiff's alleged mental impairments, the undersigned need not address the ALJ's consideration of such impairments for purposes of this Report and Recommendation. As a result, this summary of the ALJ's decision focuses on the ALJ's analysis of Plaintiff's physical impairments.
In his 18-page opinion, the ALJ considered whether Plaintiff was disabled from his alleged disability onset date through the date of his decision. (R. at 15-32.) The ALJ considered Plaintiff's allegations of disability due to “back injury, knee injury, anxiety, and schizophrenia.” (Id.) He concluded that Plaintiff suffered from the following severe impairments: lumbar degenerative disk disease and left knee degenerative joint disease. (Id. at 17.) In making this conclusion, the ALJ explained that Plaintiff's obesity, hypertension, and mental impairments minimally impacted Plaintiff's ability to work. (Id. at 17-24.) He therefore considered these impairments to be non-severe. (Id.)
The ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of an impairment listed in the official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id. at 24.) He explained that Plaintiff's lumbar degenerative disk disease and left knee degenerative joint disease did not meet or equal any listings because the record did not reflect “significant loss of [] function due to bone or joint deformity or destruction, ” nor an inability to ambulate effectively. (Id.)
Thus, the ALJ moved on to the RFC determination. (Id. at 24-30.) He began by outlining the required two-step process used to determine Plaintiff's RFC and stating that he “considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence.” (Id. at 25.) He then described Plaintiff's subjective complaints, including that Plaintiff's “back muscle spasms and chronic pain [] results in inability to sustain standing, walking and sitting, ” Plaintiff's “pain and anxiety result in poor focus and inability to stay on task, ” “he uses a cane or walker to ambulate, ” and “he experiences anxiety and paranoia, causing him not to be around people and to have auditory and visual hallucinations.” (Id. at 25.) The ALJ noted: “the claimant's medically determinable impairments could reasonably be expected to cause some of the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” (Id. at 25.)
To justify this finding, the ALJ reviewed the objective medical evidence and explained that Plaintiff's physical examinations failed to document ongoing clinical signs of lumbar degenerative disc diseases such as unilaterally decreased reflexes, muscle atrophy, or consistently positive straight leg raising tests. (Id. at 25-27.) As for Plaintiff's knee pain, the ALJ noted that Plaintiff did not complain about his knee to his primary care doctor and that “there is no indication that the claimant was prescribed physical therapy or steroid injection therapy, he is not referred to an orthopedic specialist and there is no suggestion of surgical intervention.” (Id. at 27-28.) He also mentioned that while Plaintiff used assistive devices for walking and getting around, he was prescribed those devices at his own request. (Id. at 26.) The ALJ noted that Plaintiff had provided limited diagnostic imaging records and that his treatment history did not reflect conventional treatment for his impairments; rather he was treated almost exclusively with pain medicine. (Id. at 26-28.) The ALJ also noted that Plaintiff's self-reported daily activities “would necessarily require standing, sitting, walking, lifting, carrying, etc.” and therefore did not support the level of limitation alleged. (Id. at 28.)
The ALJ considered medical opinion evidence, noting that “the record does not contain any opinions from treating physicians indicating that the claimant is disabled or has physical or mental limitations greater than determined” in Plaintiff's RFC. (Id. at 29-30.) He mentioned that he incorporated those opinions that were consistent with the overall record and treatment notes but did not incorporate opinions that were inconsistent with the record. (Id.) For instance, he did not adopt a recommendation from a State Agency consultative orthopedic examiner who opined that Plaintiff was restricted to “seated duties” because such recommendation was “not supported by primary care records before and after the consultative examination.” (Id. at 29.)
Ultimately, the ALJ concluded that Plaintiff had the RFC to perform light work with certain exertional limitations. (Id. at 24-30.) With this RFC in mind, the ALJ determined that Plaintiff could perform past relevant work as a cook because that work would not require Plaintiff to perform any work-related activities precluded by Plaintiff's RFC. (Id. at 30.) As such, the ALJ resolved that Plaintiff was not disabled at any point from his alleged disability onset date through the date of the ALJ's decision. (Id. at 32.)
II. ALJ's RFC Determination
Plaintiff argues that the ALJ erred in evaluating Plaintiff's RFC. (Dkt. No. 16 at 9-12.) A claimant's RFC represents the most he can still do despite his limitations. Ladda v. Berryhill, 749 Fed.Appx. 166, 172 (4th Cir. 2018). The ALJ must follow a two-step process when forming a plaintiff's RFC. See 20 C.F.R. §§ 404.1529, 416.929; SSR 16-3P, 2017 WL 5180304 (Oct. 25, 2017). First, the ALJ must assess the objective medical evidence and determine whether the plaintiff has a medically determinable impairment. See 20 C.F.R. §§ 404.1529(b), 416.929(b); SSR 16-3P. If the ALJ finds that the plaintiff has a medically determinable impairment, the ALJ must then assess the plaintiff's symptoms to determine how the intensity and persistence of those symptoms affect the plaintiff's ability to work. See 20 C.F.R. §§ 404.1529(c), 416.929(c); SSR 16-3P. A plaintiff is not generally required to produce objective evidence of the pain itself or its intensity at the second step of this framework. Walker v. Bowen, 889 F.2d 47, 49 (4th Cir. 1989).
Social Security Ruling 16-3p rescinded and superseded SSR 96-7p, on March 28, 2016. See SSR 16-3p, 2017 WL 5180304, at *13. The ALJ's decision was issued on August 7, 2019. (R. at 32.) As such, the undersigned has analyzed Plaintiff's allegations under SSR 16-3p. See SSR 16-3p, 2017 WL 5180304, at *13 n.27 (“When a Federal court reviews our final decision in a claim, we expect the court will review the final decision using the rules that were in effect at the time we issued the decision under review.”) The undersigned notes that SSR 16-3p discontinues use of the term “credibility;” however, “the methodology required by both SSR 16-3p and SSR 96-7p are quite similar. Under either, the ALJ is required to consider the claimant's report of his own symptoms against the backdrop of the entire case record.” Best v. Berryhill, No. 0:15-cv-2990-DCN, 2017 WL 835350, at *4 n.3 (D.S.C. Mar. 3, 2017) (internal citations omitted).
After concluding that Plaintiff's subjective complaints about the severity of his impairments were not entirely consistent with the medical and other evidence of record, the ALJ: (1) cited to excerpts from Plaintiff's medical records; (2) noted that Plaintiff often failed to follow up with recommended specialized treatment; (3) explained that Plaintiff did not always comply with his treatment regimen, which consisted primarily of prescription medications; and (4) described that Plaintiff's self-reported daily activities did not support the level of impairment alleged. (R. at 25-30.) Plaintiff argues that the ALJ's RFC determination is not supported by substantial evidence because the ALJ did not accurately recount the record evidence. (Dkt. No. 16 at 9-12, 14-16.) More specifically, Plaintiff asserts that the ALJ cherry-picked objective medical evidence and improperly evaluated Plaintiff's subjective complaints. (Id.) Plaintiff contends that the Commissioner's decision must therefore be reversed and remanded, whereas the Commissioner contends that the ALJ's decision should be affirmed because it is supported by substantial evidence and is free of legal error. (Id.; Dkt. No. 17 at 13-20.) For the reasons described below, the undersigned agrees with Plaintiff and therefore recommends that the Commissioner's decision be reversed and remanded for further proceedings.
A. Plaintiff's Ability to Comply with Treatment
The undersigned first notes that the ALJ's RFC determination largely relied on Plaintiff's failure to comply with his treatment regimen and failure to follow up with recommended specialists. (R. at 25-30.) The record reflects that Plaintiff failed to seek out specialized care that was recommended to him, and that Plaintiff did not always take his prescribed medications. (Id. at 352, 363, 366, 370, 372, 373, 376, 377, 396, 411, 426.) However, the record also suggests that Plaintiff did not comply with his doctors' recommendations because he could not afford to do so. (Id. at 373, 396.) For example, treatment notes from a July 5, 2017 appointment at Laurens County Community Care Center state that Plaintiff was “trying to save money to go” to the spine center. (Id. at 373.) Treatment notes from an August 31, 2017 appointment at Laurens County Community Care Center explain that Plaintiff went without medication for a period of time because “he was denied for [W]elvista.” (Id. at 396.) The record also shows that Plaintiff received specialized pain management care for six months when he “went to [a] Workmen's Compensation doctor” in 2008, but that this treatment ended when “his lawsuit was over, ” indicating that he could no longer afford it. (Id. at 370, 411.) Plaintiff testified that he has a prescription for a wheelchair but is unable to afford one. (Id. at 52.) Plaintiff also testified that he cannot attend physical therapy for his back problems because he does not have insurance. (Id. at 62.) Plaintiff's attorney explained to the ALJ that Plaintiff's medical records are somewhat sporadic because Plaintiff does not have the means to travel for treatment and he was limited to care from the Laurens County Community Care Center, a free clinic. (Id. at 44.)
Welvista is a non-profit organization based in Columbia, South Carolina that helps individuals without insurance offset medical costs and access essential health services. See https://www.welvista.org.
It is well settled that “[a] claimant may not be penalized for failing to seek treatment [he] cannot afford.” Lovejoy v. Heckler, 790 F.2d 1114, 1117 (4th Cir. 1986). Here, the ALJ repeatedly emphasized Plaintiff's failure to follow up with specialists and his inconsistency in taking his prescribed medications. (R. at 25-30.) Specifically, the ALJ noted:
A longitudinal medical record demonstrating a claimant's attempts to seek medical treatment for pain or other symptoms and to follow that treatment once it is prescribed, lends support to the claimant's allegations of intense and persistent pain. However, in the instant case, the record of treatment shows clear indications of noncompliance with prescribed treatment and medications, which does not lend support to allegations of debilitating pain, loss of function and inability to sustain work activity. In limiting the claimant to a light level of exertion with additional postural limitations, the undersigned has considered the allegations and the objective clinical evidence of left knee degenerative changes as well as the level of treatment indicated in the record.(Id. at 28.) However, the ALJ never mentioned Plaintiff's alleged inability to afford his prescribed treatment and medications. (Id. at 25-30.) The ALJ did not address Plaintiff's testimony that he was unable to afford a wheelchair. (Id.) He also did not address the portions of the record indicating that Plaintiff was unable to pay for care from the spine center and unable to afford his medications. (Id.) Accordingly, the ALJ did not consider whether Plaintiff's failure to comply with recommended treatment was based upon his alleged inability to pay. (Id.) Courts routinely find remand is warranted under these circumstances. See, e.g., Thomas v. Colvin, No. 6:15-cv-3251-MBS-KFM, 2016 WL 5109199, *10 (D.S.C. Aug. 24, 2016) (“Courts in this district have consistently found remand necessary where the ALJ considered the claimant's failure to seek treatment in the disability determination despite evidence in the record of the claimant's inability to afford treatment.”) (collecting cases); Hagerman v. Colvin, No. 9:13-cv-1709-RMG, 2015 WL 300265 at *5 (D.S.C. Jan. 22, 2015) (remanding where ALJ failed to determine whether inability to pay was the cause of the plaintiff's lack of medical treatment); Fleming v. Astrue, No. 5:11-cv-304-DCN-KDW, 2012 WL 3686622 (D.S.C. Jul. 10, 2012) (finding the ALJ's credibility assessment flawed and remanding the case where the ALJ considered the plaintiff's failure to seek treatment as a factor in the disability determination, and the record reflected that the plaintiff did not have the financial resources to obtain treatment), adopted, 2012 WL 3679628 (D.S.C. Aug. 24, 2012).
B. Plaintiff's Daily Activities
The ALJ also relied on Plaintiff's daily activities to justify his RFC determination. (R. at 25-30.) In describing Plaintiff's daily activities, the ALJ explained that Plaintiff “completes light chores, does some cooking, goes shopping in stores, rides in the car, and manages personal hygiene without a problem” and that Plaintiff conducts a “variety of activities that would necessarily require standing, sitting, walking, lifting, carrying, etc.” (Id. at 27-28.) The ALJ determined that Plaintiff's daily activities therefore supported his RFC determination. (Id.)
To justify this finding, the ALJ cited to Plaintiff's function report and psychological examination report. (Id.) However, Plaintiff's function report states that Plaintiff “can't stand long, ” “lay[s] down only, ” and “standing and sitting are painful” for Plaintiff. (Id. at 263, 265.) Plaintiff's function report also reflects that he does not prepare any meals, does not perform any house or yard work, cannot walk without a cane, and cannot go out alone because he fears falling. (Id. at 265-67.) Plaintiff's function report further states that he only shops for food and does so just once a month. (Id.) Plaintiff cannot drive himself anywhere. (Id.) Plaintiff's psychological examination report explained that Plaintiff “will engage in light chores but his physical problems keep him from doing most of the heavier chores and he depends on his roommate to cook for him, ” that “[h]e spends most of the day sitting in a chair, ” that “[h]e does not attend church and rarely goes out” because of his pain. (Id. at 387.) In other words, the record evidence cited by the ALJ in support of his description of Plaintiff's daily activities does not support the level of activity the ALJ describes.
Plaintiff's testimony about his daily activities also does not support the level of ability described by the ALJ. (Id. at 25-30.) In that testimony, Plaintiff explains that he can bathe himself, but only when his roommate is home because his knees sometimes give out. (Id. at 51.) Plaintiff also explains that he can dress himself, but that the process is “very slow” and painful, so he often keeps the same clothes on for days at a time. (Id.) He further testified that he does not do laundry, dishes, ironing, sweeping, mopping, or vacuuming. (Id. at 60.) He does not take out the trash, clean the bathroom, do yard work, or perform any maintenance around the house. (Id.) He does not have a driver's license and has no hobbies other than watching television and reading. (Id. at 61.) He goes to the grocery store once per month but cannot go by himself and needs to use the shopping cart to support himself while there. (Id. at 64.)
In sum, the ALJ impermissibly misstated and mischaracterized record evidence relating to Plaintiff's daily activities and his failure to comply with treatment. (Id. at 25-30.) Moreover, the ALJ emphasized these misstated and mischaracterized portions of the record as support for his overall RFC determination. (Id.) However, a decision based on misstatements and mischaracterizations is not supported by substantial evidence. Arakas, 983 F.3d at 99 (citing Lewis, 858 F.3d at 869). As such, the undersigned cannot conclude that Plaintiff's RFC determination is supported by substantial evidence and is free from legal error. The undersigned therefore recommends that the Commissioner's decision be reversed and remanded for further proceedings.
III. Remaining Allegations of Error
Plaintiff also argues the ALJ erred by: (1) determining that Plaintiff's impairments did not meet the criteria of Listing 1.04(a); (2) improperly evaluating the medical opinion evidence; and (3) finding that Plaintiff's prescribed assistive devices were not medically necessary. (See generally Dkt. No. 16.) The undersigned does not address these remaining allegations, as they may be rendered moot on remand. As part of the overall reconsideration of the claim upon remand, the ALJ should, if necessary, also take into consideration these additional allegations of error raised by Plaintiff.
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be REMANDED for further proceedings consistent with this Report & Recommendation
IT IS SO RECOMMENDED.
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
Post Office Box 835
Charleston, South Carolina 29402
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).