Opinion
CA No. 8:19-cv-00258-RBH-JDA
02-27-2020
Travis Wood, Plaintiff, v. Andrew Saul, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court for a Report and Recommendation pursuant to Local Civil Rule 73.02(B)(2)(a), D.S.C., and 28 U.S.C. § 636(b)(1)(B). Plaintiff brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the Commissioner of Social Security ("the Commissioner"), denying Plaintiff's claims for disability insurance benefits ("DIB") and supplemental security income ("SSI"). For the reasons set forth below, it is recommended that the decision of the Commissioner be reversed and remanded for administrative action consistent with this recommendation, pursuant to sentence four of 42 U.S.C. § 405(g).
A Report and Recommendation is being filed in this case, in which one or both parties declined to consent to disposition by a magistrate judge.
Section 1383(c)(3) provides, "[t]he final determination of the Commissioner of Social Security after a hearing under paragraph (1) shall be subject to judicial review as provided in section 405(g) of this title to the same extent as the Commissioner's final determinations under section 405 of this title." 42 U.S.C. § 1383(c)(3).
PROCEDURAL HISTORY
In March 2016, Plaintiff filed applications for DIB and SSI, alleging an onset of disability date of August 19, 2014. [R. 221-232.] The claims were denied initially and upon reconsideration. [R.147-51, 154-60, 113-42.] Plaintiff then requested a hearing before an administrative law judge ("ALJ"), and, on June 27, 2018, ALJ Thaddeus J. Hess conducted a de novo review of Plaintiff's claims. [R. 42-78.]
The ALJ issued a decision on July 25, 2018, finding Plaintiff not disabled under the Social Security Act ("the Act"). [R. 11-26.] At Step 1, the ALJ found Plaintiff met the insured status requirements of the Act through June 30, 2020, and had not engaged in substantial gainful activity since August 19, 2014, the alleged onset date. [R. 13, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had severe impairments of chondromalacia of the right knee, history of cervical fracture, degenerative disc disease of the cervical spine, history of traumatic brain injury, coronary artery disease, anxiety, and headaches. [R. 14, Finding 3.] The ALJ also found that Plaintiff had non-severe impairments of Crohns disease, low back pain, bilateral carpal tunnel syndrome, hypertension and dyslipidemia, shortness of breath, depression, and anxiety. [R. 14-15.] At Step 3, the ALJ found that Plaintiff did not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. [R. 15, Finding 4.]
The five-step sequential analysis used to evaluate disability claims is discussed in the Applicable Law section, infra.
Before addressing Step 4, Plaintiff's ability to perform his past relevant work, the ALJ assessed Plaintiff's residual functional capacity ("RFC") and found as follows:
[T]he claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except that the claimant can never climb a ladder/rope/scaffold; the claimant can occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs; the claimant can occasionally reach overhead bilaterally; the claimant must avoid concentrated exposure to extreme cold or heat and workplace hazards such as unprotected heights and moving machinery; and the claimant can perform simple, routine tasks for two-hour blocks of time with normal rest breaks during an eight-hour work day.[R. 17, Finding 5.] Based on this RFC, the ALJ determined at Step 4 that Plaintiff was unable to perform his past relevant work as labeler-chemical processing, fiberglass machine operator, and construction worker. [R. 24, Finding 6.] The ALJ also determined that Plaintiff performed a composite job consisting of elements of a numerical control machine operator and a milling machine setup operator, which he was unable to perform based on his RFC. [Id.] However, based on Plaintiff's age, education, work experience, RFC, and the testimony of a vocational expert ("VE"), the ALJ determined that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. [R. 24, Finding 10.] Accordingly, the ALJ concluded that Plaintiff had not been under a disability, as defined in the Act, from August 19, 2014, through the date of the decision. [R. 25, Finding 11.] Thus, the ALJ concluded that, based on the application for DIB, Plaintiff was not disabled under §§ 216(i) and 223(d) of the Act, and, based on the application for SSI, Plaintiff was not disabled under § 1614(a)(3)(A) of the Act. [R. 25-26.]
Plaintiff requested Appeals Council review of the ALJ's decision, but the Appeals Council declined review. [R. 1-7.] Plaintiff filed this action for judicial review on January 30, 2019. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff contends that errors by the ALJ require the decision to be remanded for additional administrative proceedings. [Doc. 12.] Specifically, Plaintiff argues there is a clear conflict between the DOT and the VE's testimony that Plaintiff, who is limited to simple, routine, repetitive tasks, can perform work at the GED 2 or GED 3 level. [Id. at 23-25.] Plaintiff also argues that the ALJ improperly weighed the opinion of Dr. Rogers, Plaintiff's treating neurologist/pain specialist. [Id. at 31-35.]
The Commissioner, on the other hand, contends the ALJ's decision is supported by substantial evidence and should be affirmed. [Doc. 13.] The Commissioner argues that there is no conflict between the VE's testimony and the DOT with respect to Plaintiff's ability to perform work at the GED 2 level. [Id. at 14-22.] The Commissioner also contends that substantial evidence supports the ALJ's weighing of Dr. Roger's opinions. [Id. at 22-29.]
The Commissioner concedes that jobs at a GED 3 reasoning level are beyond the scope of simple, routine work. [Doc. 13 at 14, n.4 (citing Keller v. Berryhill, No. 17-2248, 2018 WL 6264813, at *2 (4th Cir. Nov. 29, 2018)).]
STANDARD OF REVIEW
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla—i.e., the evidence must do more than merely create a suspicion of the existence of a fact and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) (citing Woolridge v. Celebrezze, 214 F. Supp. 686, 687 (S.D.W. Va. 1963)) ("Substantial evidence, it has been held, is evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is 'substantial evidence.'").
Where conflicting evidence "allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ)," not on the reviewing court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991) (stating that where the Commissioner's decision is supported by substantial evidence, the court will affirm, even if the reviewer would have reached a contrary result as finder of fact and even if the reviewer finds that the evidence preponderates against the Commissioner's decision). Thus, it is not within the province of a reviewing court to determine the weight of the evidence, nor is it the court's function to substitute its judgment for that of the Commissioner so long as the decision is supported by substantial evidence. See Bird v. Comm'r, 699 F.3d 337, 340 (4th Cir. 2012); Laws, 368 F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).
The reviewing court will reverse the Commissioner's decision on plenary review, however, if the decision applies incorrect law or fails to provide the court with sufficient reasoning to determine that the Commissioner properly applied the law. Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980); see also Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner's decision "is in clear disregard of the overwhelming weight of the evidence, Congress has empowered the courts to modify or reverse the [Commissioner's] decision 'with or without remanding the cause for a rehearing.'" Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971) (quoting 42 U.S.C. § 405(g)). Remand is unnecessary where "the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no purpose." Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974).
The court may remand a case to the Commissioner for a rehearing under sentence four or sentence six of 42 U.S.C. § 405(g). Sargent v. Sullivan, 941 F.2d 1207 (4th Cir. 1991) (unpublished table decision). To remand under sentence four, the reviewing court must find either that the Commissioner's decision is not supported by substantial evidence or that the Commissioner incorrectly applied the law relevant to the disability claim. See, e.g., Jackson v. Chater, 99 F.3d 1086, 1090-91 (11th Cir. 1996) (holding remand was appropriate where the ALJ failed to develop a full and fair record of the claimant's residual functional capacity); Brenem v. Harris, 621 F.2d 688, 690-91 (5th Cir. 1980) (holding remand was appropriate where record was insufficient to affirm but was also insufficient for court to find the claimant disabled). Where the court cannot discern the basis for the Commissioner's decision, a remand under sentence four is usually the proper course to allow the Commissioner to explain the basis for the decision or for additional investigation. See Radford v. Comm'r, 734 F.3d 288, 295 (4th Cir. 2013) (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985); see also Smith v. Heckler, 782 F.2d 1176, 1181-82 (4th Cir. 1986) (remanding case where decision of ALJ contained "a gap in its reasoning" because ALJ did not say he was discounting testimony or why); Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (remanding case where neither the ALJ nor the Appeals Council indicated the weight given to relevant evidence). On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. See Smith, 782 F.2d at 1182 ("The [Commissioner] and the claimant may produce further evidence on remand."). After a remand under sentence four, the court enters a final and immediately appealable judgment and then loses jurisdiction. Sargent, 941 F.2d 1207 (citing Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991)).
In contrast, sentence six provides:
The court may . . . at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding . . . .42 U.S.C. § 405(g). A reviewing court may remand a case to the Commissioner on the basis of new evidence only if four prerequisites are met: (1) the evidence is relevant to the determination of disability at the time the application was first filed; (2) the evidence is material to the extent that the Commissioner's decision might reasonably have been different had the new evidence been before him; (3) there is good cause for the claimant's failure to submit the evidence when the claim was before the Commissioner; and (4) the claimant made at least a general showing of the nature of the new evidence to the reviewing court. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985) (citing 42 U.S.C. § 405(g); Mitchell v. Schweiker, 699 F.2d 185, 188 (4th Cir. 1983); Sims v. Harris, 631 F.2d 26, 28 (4th Cir. 1980); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)), superseded by amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec'y, Dep't of Health & Human Servs., 925 F.2d 769, 774 (4th Cir. 1991). With remand under sentence six, the parties must return to the court after remand to file modified findings of fact. Melkonyan, 501 U.S. at 98. The reviewing court retains jurisdiction pending remand and does not enter a final judgment until after the completion of remand proceedings. See Allen v. Chater, 67 F.3d 293 (4th Cir. 1995) (unpublished table decision) (holding that an order remanding a claim for Social Security benefits pursuant to sentence six of 42 U.S.C. § 405(g) is not a final order).
Though the court in Wilkins indicated in a parenthetical that the four-part test set forth in Borders had been superseded by an amendment to 42 U.S.C. § 405(g), courts in the Fourth Circuit have continued to cite the requirements outlined in Borders when evaluating a claim for remand based on new evidence. See, e.g., Brooks v. Astrue, No. 6:10-cv-152, 2010 WL 5478648, at *8 (D.S.C. Nov. 23, 2010); Ashton v. Astrue, No. TMD 09-1107, 2010 WL 3199345, at *3 (D. Md. Aug. 12, 2010); Washington v. Comm'r of Soc. Sec., No. 2:08-cv-93, 2009 WL 86737, at *5 (E.D. Va. Jan. 13, 2009); Brock v. Sec'y of Health & Human Servs., 807 F. Supp. 1248, 1250 n.3 (S.D.W. Va. 1992). Further, the Supreme Court of the United States has not suggested Borders' construction of § 405(g) is incorrect. See Sullivan v. Finkelstein, 496 U.S. 617, 626 n.6 (1990). Accordingly, the Court will apply the more stringent Borders inquiry.
APPLICABLE 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). "Disability" is defined 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 12 consecutive months.Id. § 423(d)(1)(A).
I. The Five Step Evaluation
To facilitate uniform and efficient processing of disability claims, federal regulations have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (noting a "need for efficiency" in considering disability claims). The ALJ must consider whether (1) the claimant is engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the impairment meets or equals an impairment included in the Administration's Official Listings of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents the claimant from performing past relevant work; and (5) the impairment prevents the claimant from having substantial gainful employment. 20 C.F.R. §§ 404.1520, 416.920. Through the fourth step, the burden of production and proof is on the claimant. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). The claimant must prove disability on or before the last day of her insured status to receive disability benefits. Everett v. Sec'y of Health, Educ. & Welfare, 412 F.2d 842, 843 (4th Cir. 1969). If the inquiry reaches Step 5, the burden shifts to the Commissioner to produce evidence that other jobs exist in the national economy that the claimant can perform, considering the claimant's age, education, and work experience. Grant, 699 F.2d at 191. If at any step of the evaluation the ALJ can find an individual is disabled or not disabled, further inquiry is unnecessary. 20 C.F.R. §§ 404.1520(a), 416.920(a)(4); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
A. Substantial Gainful Activity
"Substantial gainful activity" must be both substantial—involves doing significant physical or mental activities, 20 C.F.R. §§ 404.1572(a), 416.972(a)—and gainful—done for pay or profit, whether or not a profit is realized, id. §§ 404.1572(b), 416.972(b). If an individual has earnings from employment or self-employment above a specific level set out in the regulations, he is generally presumed to be able to engage in substantial gainful activity. Id. §§ 404.1574-.1575, 416.974-.975.
B. Severe Impairment
An impairment is "severe" if it significantly limits an individual's ability to perform basic work activities. See id. §§ 404.1521, 416.921. When determining whether a claimant's physical and mental impairments are sufficiently severe, the ALJ must consider the combined effect of all of the claimant's impairments. 42 U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G). The ALJ must evaluate a disability claimant as a whole person and not in the abstract, having several hypothetical and isolated illnesses. Walker v. Bowen, 889 F.2d 47, 49-50 (4th Cir. 1989) (stating that, when evaluating the effect of a number of impairments on a disability claimant, "the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them"). Accordingly, the ALJ must make specific and well-articulated findings as to the effect of a combination of impairments when determining whether an individual is disabled. Id. at 50 ("As a corollary to this rule, the ALJ must adequately explain his or her evaluation of the combined effects of the impairments."). If the ALJ finds a combination of impairments to be severe, "the combined impact of the impairments shall be considered throughout the disability determination process." 42 U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G).
C. Meets or Equals an Impairment Listed In the Listings of Impairments
If a claimant's impairment or combination of impairments meets or medically equals the criteria of a listing found at 20 C.F.R. Pt. 404, Subpt. P, App.1 and meets the duration requirement found at 20 C.F.R. §§ 404.1509 or 416.909, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience. 20 C.F.R. §§ 404.1520(d), 416.920(a)(4)(iii), (d).
The Listing of Impairments is applicable to SSI claims pursuant to 20 C.F.R. §§ 416.911, 416.925.
D. Past Relevant Work
The assessment of a claimant's ability to perform past relevant work "reflect[s] the statute's focus on the functional capacity retained by the claimant." Pass v. Chater, 65 F.3d 1200, 1204 (4th Cir. 1995). At this step of the evaluation, the ALJ compares the claimant's residual functional capacity with the physical and mental demands of the kind of work he has done in the past to determine whether the claimant has the residual functional capacity to do his past work. 20 C.F.R. §§ 404.1560(b), 416.960(b).
Residual functional capacity is "the most [a claimant] can still do despite [his] limitations." 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).
E. Other Work
As previously stated, once the ALJ finds that a claimant cannot return to her prior work, the burden of proof shifts to the Commissioner to establish that the claimant could perform other work that exists in the national economy. See 20 C.F.R. §§ 404.1520(f)-(g), 416.920(f)-(g); Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992). To meet this burden, the Commissioner may sometimes rely exclusively on the Medical-Vocational Guidelines (the "grids"). Exclusive reliance on the "grids" is appropriate where the claimant suffers primarily from an exertional impairment, without significant nonexertional factors. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e); Gory v. Schweiker, 712 F.2d 929, 930-31 (4th Cir. 1983) (stating that exclusive reliance on the grids is appropriate in cases involving exertional limitations). When a claimant suffers from both exertional and nonexertional limitations, the grids may serve only as guidelines. Gory, 712 F.2d at 931. In such a case, the Commissioner must use a vocational expert to establish the claimant's ability to perform other work. 20 C.F.R. §§ 404.1569a, 416.969a; see Walker, 889 F.2d at 49-50 ("Because we have found that the grids cannot be relied upon to show conclusively that claimant is not disabled, when the case is remanded it will be incumbent upon the [Commissioner] to prove by expert vocational testimony that despite the combination of exertional and nonexertional impairments, the claimant retains the ability to perform specific jobs which exist in the national economy."). The purpose of using a vocational expert is "to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform." Walker, 889 F.2d at 50. For the vocational expert's testimony to be relevant, "it must be based upon a consideration of all other evidence in the record, . . . and it must be in response to proper hypothetical questions which fairly set out all of claimant's impairments." Id. (citations omitted).
An exertional limitation is one that affects the claimant's ability to meet the strength requirements of jobs. 20 C.F.R. §§ 404.1569a(a), 416.969a(a). A nonexertional limitation is one that affects the ability to meet the demands of the job other than the strength demands. Id. Examples of nonexertional limitations include but are not limited to difficulty functioning because of being nervous, anxious, or depressed; difficulty maintaining attention or concentrating; difficulty understanding or remembering detailed instructions; difficulty seeing or hearing. 20 C.F.R. §§ 404.1569a(c)(1), 416.969a(c)(1).
II. Developing the Record
The ALJ has a duty to fully and fairly develop the record. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). The ALJ is required to inquire fully into each relevant issue. Snyder, 307 F.2d at 520. The performance of this duty is particularly important when a claimant appears without counsel. Marsh v. Harris, 632 F.2d 296, 299 (4th Cir. 1980). In such circumstances, "the ALJ should scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts, . . . being especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited." Id. (internal quotations and citations omitted).
III. Treating Physicians
If a treating physician's opinion on the nature and severity of a claimant's impairments is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" in the record, the ALJ must give it controlling weight. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). The ALJ may discount a treating physician's opinion if it is unsupported or inconsistent with other evidence, i.e., when the treating physician's opinion does not warrant controlling weight, Craig, 76 F.3d at 590, but the ALJ must nevertheless assign a weight to the medical opinion based on the 1) length of the treatment relationship and the frequency of examination; 2) nature and extent of the treatment relationship; 3) supportability of the opinion; 4) consistency of the opinion with the record a whole; 5) specialization of the physician; and 6) other factors which tend to support or contradict the opinion, 20 C.F.R. §§ 404.1527(c), 416.927(c). Similarly, where a treating physician has merely made conclusory statements, the ALJ may afford the opinion such weight as is supported by clinical or laboratory findings and other consistent evidence of a claimant's impairments. See Craig, 76 F.3d at 590 (holding there was sufficient evidence for the ALJ to reject the treating physician's conclusory opinion where the record contained contradictory evidence).
In any instance, a treating physician's opinion is generally entitled to more weight than a consulting physician's opinion. See Mitchell v. Schweiker, 699 F.2d 185, 187 (4th Cir. 1983) (stating that treating physician's opinion must be accorded great weight because "it reflects an expert judgment based on a continuing observation of the patient's condition for a prolonged period of time"); 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). An ALJ determination coming down on the side of a non-examining, non-treating physician's opinion can stand only if the medical testimony of examining and treating physicians goes both ways. Smith v. Schweiker, 795 F.2d 343, 346 (4th Cir. 1986). Further, the ALJ is required to review all of the medical findings and other evidence that support a medical source's statement that a claimant is disabled. 20 C.F.R. §§ 404.1527(d), 416.927(d). However, the ALJ is responsible for making the ultimate determination about whether a claimant meets the statutory definition of disability. Id.
IV. Medical Tests and Examinations
The ALJ is required to order additional medical tests and exams only when a claimant's medical sources do not give sufficient medical evidence about an impairment to determine whether the claimant is disabled. 20 C.F.R. §§ 404.1517, 416.917; see also Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986). The regulations are clear: a consultative examination is not required when there is sufficient medical evidence to make a determination on a claimant's disability. 20 C.F.R. §§ 404.1517, 416.917. Under the regulations, however, the ALJ may determine that a consultative examination or other medical tests are necessary. Id.
V. Pain
Congress has determined that a claimant will not be considered disabled unless he furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing the existence of a medical impairment that could reasonably be expected to produce the pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). Social Security Ruling ("SSR") 16-3p provides, "[i]n 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." Social Security Ruling 16-3p Titles II and XVI: Evaluation of Symptoms In Disability Claims, 82 Fed. Reg. 49,462, 49,464 (Oct. 25, 2017); see also 20 C.F.R. § 404.1529(c)(1)-(c)(2) (outlining evaluation of pain).
In evaluating claims of disabling pain, the ALJ must proceed in a two-part analysis. Morgan v. Barnhart, 142 F. App'x 716, 723 (4th Cir. 2005) (unpublished opinion); see also SSR 16-3p, 82 Fed. Reg. at 49,463. First, "the ALJ must determine whether the claimant has produced medical evidence of a 'medically determinable impairment which could reasonably be expected to produce" the alleged symptoms. Id. (quoting Craig, 76 F.3d at 594); see also SSR 16-3p, 82 Fed. Reg. at 49,463. Second, 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 . . . or to function independently." SSR 16-3p, 82 Fed. Reg. at 49,464; see also 20 C.F.R. § 404.1528 (noting that the ALJ must consider all of a claimant's statements about his symptoms, including pain, and determine the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence).
APPLICATION AND ANALYSIS
Weighing of Treating Physician Opinion
The Treating Physician Rule
Under the applicable regulations, the Commissioner is obligated to consider all medical evidence and the opinions of medical sources, including treating physicians. See 20 C.F.R. § 404.1545. Specifically, the regulation known as the "Treating Physician Rule" imposes a duty on the Commissioner to "evaluate every medical opinion we receive." Id. § 404.1527(c). The Commissioner "[g]enerally . . . give[s] more weight to opinions from . . . treating sources" based on the view that "these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations." Id. § 404.1527(c)(2). Further, the Commissioner "[g]enerally . . . give[s] more weight to the opinion of a source who has examined [the claimant] than to the opinion of a source who has not examined [the claimant]." Id. § 404.1527(c)(1).
Under some circumstances, the opinions of the treating physicians are to be accorded controlling weight. Even where the opinions of the treating physicians of the claimant are not accorded controlling weight, the Commissioner is obligated to weigh those opinions in light of a broad range of specifically identified factors, including the examining relationship, the nature and extent of the treatment relationship, supportability of the opinions in the medical record, consistency, and whether the treating physician is a specialist. Id. §§ 404.1527(c)(1)-(5). The Commissioner is obligated to weigh the findings and opinions of treating physicians and to give "good reasons" in the written decision for the weight given to a treating source's opinions. SSR 96-2P, 61 Fed. Reg. 34490, 34492 (July 2, 1996).
The opinions of non-examining sources and state agency medical consultants must be weighed under the same standards of the Treating Physician Rule, including the source's "medical specialty and expertise . . ., the supporting evidence in the case record, supporting explanations . . . and other factors relevant to the weighing of opinions." Id. § 404.1527(e)(2)(ii). Further, the opinions of non-examining sources must be evaluated on "the degree to which these opinions consider all the pertinent evidence . . ., including the opinions of treating and other examining sources." Id. § 404.1527(c)(3).
Dr. Roger's Medical Opinions
Plaintiff argues that the ALJ's weighing of Dr. Roger's opinions was unreasonable. [Doc. 13 at 33.] Plaintiff appears to argue that the ALJ discounted limitations in Plaintiff's attention, concentration, and memory based on mental status findings without taking into account the limitations related to his pain from his cervical spine. [Id. at 34.] Plaintiff contends "Dr. Rogers provided extensive opinions explaining his reasoning for limitations supporting disability. The ALJ provided sparse discussion of select portions of those opinions, focusing extensively on the lack of mental health impairments and treatment. But [Plaintiff's] chronic pain was certainly sufficient to support Dr. Rogers' opinions as a long term, treating pain management specialist." [Id.]
Plaintiff was involved in a motor vehicle accident on March 11, 2014, resulting in traumatic brain injury and resultant post-concussive syndrome, cervical segmental dysfunction, and knee derangement. [R. 654.] On June 15, 2015, Dr. Rogers evaluated Plaintiff, who reported persistent cervical neck region pain and headache activity. [R. 654.] Plaintiff reported having difficulty at work and missing a substantial amount of work due to discomfort. [Id.] Plaintiff reported missing an average of one to two days of work per week, either missing work completely or having to leave early. [Id.] Plaintiff reported cognitive impairment with difficulty in concentration and staying on task. [Id.] Dr. Rogers placed Plaintiff on leave from work, finding that his occupational activities were contributing to his level of dysfunction. [R. 655.] Dr. Rogers determined, with a reasonable degree of medical certainty, that Plaintiff demonstrated significant dysfunction that precluded him from continuing work duties without aggravating or exacerbating his symptoms. [Id.] Dr. Rogers rated Plaintiff with a 14% whole person impairment due to cognitive dysfunction,14% whole person impairment due to behavioral/emotional dysfunction, and 8% whole person impairment to the cervical spine, resulting in a 32% whole person impairment (excluding the right knee derangement impairment rating). [Id.]
On June 25, 2015, Plaintiff was assaulted by a supervisor at work resulting in a C3-C4 fracture. [R. 505.] In a medical source statement dated June 6, 2016, Dr. Rogers indicated that Plaintiff's mental diagnosis was depression/anxiety and that he was prescribed Lexapro and Klonopin for his condition. [R. 534.] Dr. Rogers opined that Plaintiff's ability to complete activities of daily living, relate to others, and complete simple, routine tasks was adequate. [Id.] Dr. Rogers opined that Plaintiff had poor ability to complete complex tasks due to difficulty with persistence, pace, and concentration. [Id.] Treatment notes from June 6, 2016, indicate that Plaintiff reported having 1 to 2 headaches per day and cervical spine pain described as sharp, burning, stabbing, throbbing, and shooting. [R. 536.] Plaintiff reported that his pain interrupted his sleep and interfered with his work. [Id.] Plaintiff reported that his pain was constant but alleviated by medication, sitting, and resting. [Id.] His activities of daily living included walking and housework. [Id.] Plaintiff also reported neck pain and migraines. [R. 537.] On physical exam, Plaintiff's appearance was normal, his gait and stance were normal, his balance was normal, and his affect was appropriate to the situation. [R. 538.] Plaintiff reported that his headaches were due to constant neck pain and that his medications were effective, making the neck pain and migraines bearable with no side effects. [R. 539.]
On April 22, 2017, Plaintiff was struck in the head by a falling ladder resulting in a moderate head injury, but no fracture to the cervical spine or the skull. [R. 692-94.] On June 13, 2017, Dr. Rogers provided a statement indicating that Plaintiff's "biggest problem would be related to his post concussive symptoms. Diagnosis of this problem is based on history and a patient's reports. Problems related to concussions are inherently subjective." [R. 646.] However, Dr. Rogers found that Plaintiff's complaints, which included fatigue, difficulty with concentration, and an inability to cope with stress, were highly consistent with his injury. [Id.] Dr. Rogers noted that Plaintiff's fatigue was multi-factorial and was likely related to his concussion, medication side effects, and his inability to sleep due to neck pain. [Id.] Dr. Rogers opined that, with any kind of occupational activity, Plaintiff would have difficulty with concentration, persistence, and pace; and he would have interruptions to concentration sufficient to frequently interrupt tasks throughout the work day due to fatigue and problems with concentration related to his neck pain and post concussive symptoms. [Id.] Dr. Rogers also opined that Plaintiff's depression and anxiety would contribute to causing interruptions in concentration and that Plaintiff presented as highly credible and was compliant with treatment. [R. 646-47.]
In a statement dated June 14, 2018, Dr. Rogers noted that Plaintiff had chronic multifactorial complex headaches that were, in part, cervicogenic and, in part, migranous. [R. 1012.] Dr. Rogers also noted that Plaintiff had one to two headaches per day, where the amount and intensity seems to wax and wane, and that Plaintiff experienced bilateral cervical spine pain. [Id.] Dr. Rogers opined that Plaintiff would have difficulty coping with major stressors in a work environment and that his concentration would be interrupted during the work day due to his fatigue and pain. [Id.] Dr. Rogers opined that Plaintiff would be limited to a sedentary exertional capacity and may have to rest away from the workstation for significantly more than one hour during a work day if he attempted to work eight hours per day, 5 day per week. [Id.] Dr. Rogers noted that Plaintiff would have problems with attention an concentration sufficient to interrupt tasks more than 10% of the working portion of the day and that he would probably miss more than 4 days of work per month. [Id.]
ALJ's Evaluation of Dr. Rogers' Opinions
In evaluating the opinion of Dr. Rogers, who the ALJ identified as Plaintiff's neurologist/pain specialist, the ALJ explained as follows:
In June 2015, David S. Rogers, the claimant's neurologist/pain specialist, opined that the claimant had a 14% whole person impairment due to cognitive dysfunction, a 14% whole person impairments due to behavioral/emotional dysfunction, and an
8% whole person impairment due to DRE cervical category II, which would constitute a 32% whole person impairment (excluding the right knee derangement impairment rating) (Exhibit 12F). Although Dr. Rogers is a treating source and a specialist, this opinion has been given little weight. It is rendered in a format that is impossible to translate into functional limitations, which is an integral part of this Agency's disability analysis. Moreover, Dr. Rogers admittedly does not consider all of the claimant's impairments.
In June 2016, Dr. Rogers opined that the claimant had adequate ability to complete basic activities of daily living, relate to others, and complete simple, routine tasks, but poor ability to complete complex tasks. He also opined that the claimant was capable of managing his funds (Exhibit 5F). He later explained that he understood this form to ask what limitations the claimant would have specifically related to his mental health issues, rather than the effect of his neck pain and post-concussive symptoms (Exhibit 10F). This opinion has been given some weight. The abilities set forth are consistent with the objective findings of record, which show that the claimant typically has some problems with recall, but a normal mood and affect. However, by Dr. Rogers' own report, it apparently does not take into account the claimant's post-concussive symptoms or neck pain, which affect his memory. There is no objective evidence showing that the claimant would have additional mental limitations, as no deficits in attention, concentration, thought process, or thought content are noted in the record. The claimant's treatment history also does not support additional limitations, as the claimant has not sought mental health treatment or been referred for any sort of cognitive rehabilitation therapy. . . .
In June 2017, Dr. Rogers opined that the claimant would have difficulty coping with major stressors in a work environment; that the claimant would have difficulty with concentration, persistence, and pace with any kind of occupational activity; that the claimant would have interruptions to concentration sufficient to frequently interrupt tasks throughout the workday; and that the claimant would be limited to no more than sedentary work (Exhibit 10F). This opinion has been assigned little weight. Other than a MMSE in June 2016 (Exhibit 12F), there are no noted deficits in attention, concentration, or memory (Exhibit 4F; Exhibit 6F; Exhibit 8F; Exhibit l 7F). Moreover, the claimant has not sought mental health treatment
or been referred for any sort of cognitive rehabilitation therapy or vocational rehabilitation. Moreover, Dr. Rogers' own notes indicate that the claimant's pain is satisfactorily controlled with medication (See, e.g., Exhibit 17F/145).[R. 21-23.]
In June 2018, Dr. Rogers opined that the claimant would be limited to a sedentary exertional capacity (if at all); that the claimant would possibly have to rest away from the work station significantly more than an hour during the working portion of the day; that the claimant would be off task more than 10% of the working portion of the day; and that the claimant would probably have to miss more than four days of work per month (Exhibit 19F). This opinion has also been given partial weight. The limitation to sedentary work is supported by the evidence, namely the claimant's right knee impairment and coronary artery disease. However, Dr. Rogers provides no basis for his other limitations. I also find no support for such limitations in the record. Notably, the claimant has fairly normal mental status examinations and has not sought mental health treatment. Moreover, the claimant has not been referred for any sort of cognitive rehabilitation therapy or vocational rehabilitation. With respect to the claimant's pain, Dr. Rogers' own notes indicate that this is satisfactorily controlled with medication (See, e.g., Exhibit 17F/145).
Discussion
Upon review of the ALJ's decision in light of the medical evidence, the Court finds persuasive Plaintiff's argument that the ALJ failed to consider that some of Plaintiff's limitations, as opined by Dr. Rogers, "were related to his pain from his cervical spine and not directly from a mental impairment." [Doc. 12 at 34.] While the ALJ clearly articulate why he does not find that Plaintiff's depression and anxiety would result in an inability to concentrate or pay attention, he does not articulate why he disregarded Dr. Roger's conclusions related to Plaintiff's pain and fatigue, limiting Plaintiff's ability to concentrate or persist during an 8-hour work day.
Dr. Rogers expressly opined that Plaintiff "would have interruptions to concentration sufficient to frequently interrupt tasks throughout the work day due to fatigue and problems with concentration related to his neck pain and post concussive symptoms." [R. 646 (emphasis added).] Consistent with this finding, on June 15, 2015, Plaintiff reported having difficulty at work and missing a substantial amount of work due to discomfort. [R. 654.] Plaintiff reported missing an average of one to two days per week of work, either missing work completely or having to leave early. [Id.] Plaintiff reported cognitive impairment with difficulty in concentration and staying on task. [Id.] Dr. Rogers placed Plaintiff on work leave, finding that his occupational activities were contributing to his level of dysfunction. [R. 655.] Dr. Rogers found, with a reasonable degree of medical certainty, that Plaintiff demonstrated significant dysfunction precluding him from continuing work duties without aggravating or exacerbating his symptomatology. [Id.]
The ALJ's decision fails to explain how he considered or resolved Plaintiff's limitations associated with pain and fatigue in developing the RFC. Further, the ALJ's decision specifically fails to explain Plaintiff's capacity to complete a normal workday and workweek in light of the frequency and intensity of his pain and fatigue. See Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015); SSR 96-8p. In the hearing before the ALJ, the ALJ failed to ask the VE if work would be available for an individual who had difficulty with concentration or staying on task due to pain. The ALJ also failed to consider whether missing work one to two days a week would preclude work. It may be that the ALJ found that Plaintiff's pain and fatigue did not affect his concentration or ability to stay on task as opined by Dr. Rogers. It may be that the ALJ found Plaintiff would not frequently miss work due to his pain and fatigue. However, because the ALJ failed to articulate his reasoning, the Court is unable to review the decision for compliance with the dictates of substantial evidence. Green v. Chater, 64 F.3d 657 (4th Cir. 1995) (explaining that, in order for a reviewing court to determine whether the Commissioner based a decision on substantial evidence, "the decision must include the reasons for the determination") (citing Cook v. Heckler, 783 F.2d 1168, 1172 (4th Cir. 1986). Accordingly, this action should be remanded.
The undersigned notes that Plaintiff asserts an additional ground for remand, claiming a conflict exists between the VE's testimony and the DOT and arguing that "[t]he 4th Circuit has ruled that if a claimant is limited to simple, routine, repetitive tasks, then the DOT says he cannot perform a GED 2 job." [Doc. 12 at 23.] The undersigned concludes that it is unnecessary to reach this issue as remand is proper on the issue discussed above. In any case, after the initial briefing of the parties was completed in this matter, the Fourth Circuit decided the case of Lawrence v. Saul, — F.3d —, 2019 WL 5445048 (Oct. 24, 2019), resolving the previous split in the Fourth Circuit on the issue of whether there was a conflict between "simple, routine repetitive tasks of unskilled work" and a determination that a person with these limitations could perform work at a GED level 2. In light of Lawrence, and because the undersigned recommends remand on other issues, the Court declines to address this issue.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the undersigned recommends that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g), and the case be REMANDED to the Commissioner for further administrative action consistent with this Report and Recommendation.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge February 27, 2020
Greenville, South Carolina