Opinion
Civil Action No. 6:16-3943-RMG-KFM
01-25-2018
Romella Wright, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
REPORT OF MAGISTRATE JUDGE
This case is before the court for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a)(D.S.C.), concerning the disposition of Social Security cases in this District, and Title 28, United States Code, Section 636(b)(1)(B).
A report and recommendation is being filed in this case, in which one or both parties declined to consent to disposition by the magistrate judge.
The plaintiff brought this action pursuant to Sections 205(g) and 1631(c)(3) of the Social Security Act, as amended (42 U.S.C. 405(g) and 1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security denying her claims for disability insurance benefits and supplemental security income benefits under Titles II and XVI of the Social Security Act.
ADMINISTRATIVE PROCEEDINGS
The plaintiff filed applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") benefits on August 27, 2013, alleging that she became unable to work on February1, 2013. Both applications were denied initially and on reconsideration by the Social Security Administration. On May 27, 2014, the plaintiff requested a hearing. The administrative law judge ("ALJ"), before whom the plaintiff and Robert E. Brabham, Jr., an impartial vocational expert, appeared on December 16, 2015, considered the case de novo, and on February 2, 2016, found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 114-30). The ALJ's finding became the final decision of the Commissioner of Social Security when the Appeals Council denied the plaintiff's request for review on November 4, 2016 (Tr. 1-7). The plaintiff then filed this action for judicial review.
In making the determination that the plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant meets the insured status requirements of the Social Security Act through December 31, 2017.
(2) The claimant has not engaged in substantial gainful activity since February 1, 2013, the alleged onset date (20 C.F.R §§ 404.1571 et seq., and 416.971 et seq.).
(3) The claimant has the following severe impairments: dysfunction of major joints and obesity (20 C.F.R. §§ 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 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 416.920(d), 416.925 and 416.926).
(5) After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform medium work as defined in 20 C.F.R. 404.1567(c) and 416.967(c). The claimant can occasionally lift/carry 50 pounds and frequently lift/carry 25 pounds. The claimant can sit for six hours, stand for six hours, and walk for six hours each in an eight-hour workday. The claimant can push/pull as much as she can lift/carry. The claimant can frequently climb ramps and stairs and occasionally climb ladders, ropes, or scaffolds. The claimant can frequently balance, stoop, kneel, crouch, and crawl. The claimant can frequently be in an environment with unprotected heights and moving mechanical parts. The claimant can frequently be in an environment with dust, odors, fumes, and pulmonary irritants.
(6) The claimant is capable of performing past relevant work as follows: (1) cutting machine operator, DOT Number 690.680-010, semi-skilled, medium, SVP 4; (2) doffer, DOT
Number 689.686-022, unskilled, medium, SVP 2; (3) packer, DOT Number 753.687-038, light, SVP 2; (4) parts inspector, DOT Number 609.684-010, semi-skilled, light, SVP 4; (5) parts assembler, DOT Number 806.684-010, unskilled, medium, SVP 2; and (6) bakery worker, DOT Number 920.587-018, unskilled, medium, SVP 2. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 C.F.R. §§ 404.1565 and 416.965).
(7) The claimant has not been under a disability, as defined in the Social Security Act, from February 1, 2013, through the date of this decision (20 C.F.R. §§ 404.1520(g) and 416.920(g)).
The only issues before the court are whether proper legal standards were applied and whether the final decision of the Commissioner is supported by substantial evidence.
APPLICABLE LAW
Under 42 U.S.C. § 423(d)(1)(A), (d)(5) and § 1382c(a)(3)(A), (H)(i), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. §§ 404.1505(a), 416.905(a).
To facilitate a uniform and efficient processing of disability claims, the Social Security Act has by regulation reduced the statutory definition of "disability" to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment that meets or medically equals an impairment contained in the Listing of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1, (4) can perform his past relevant work, and (5) can perform other work. Id. §§ 404.1520, 416.920. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. §§ 404.1520(a)(4), 416.920(a)(4).
A claimant must make a prima facie case of disability by showing he is unable to return to his past relevant work because of his impairments. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). Once an individual has established a prima facie case of disability, the burden shifts to the Commissioner to establish that the plaintiff can perform alternative work and that such work exists in the national economy. Id. (citing 42 U.S.C. § 423(d)(2)(A)). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Id. at 192.
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings "are supported by substantial evidence and were reached through application of the correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Id. In reviewing the evidence, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Id. Consequently, even if the court disagrees with Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
EVIDENCE PRESENTED
Evidence Before the ALJ
The plaintiff was born on February 12, 1960, and was 52 years old on her alleged disability onset date of February 1, 2013. She was 55 years old at the time of the ALJ's decision on January 28, 2016. The plaintiff obtained a high school diploma, completed two years of college, and has past relevant work experience as a cutting machine operator, doffer, packer, parts inspector, parts assembler, and bakery worker (Tr. 127-28, 130, 152, 167-68, 302).
On February 20, 2013, the plaintiff saw Joshua Paul, M.D., for followup of asthma and hypertension. Dr. Paul noted that the plaintiff had not been seen for a year. The plaintiff told Dr. Paul that her weight and blood pressure were elevated because she was just laid off. The plaintiff denied fatigue, dizziness, or weakness. A physical examination was normal. Mental status was intact, with normal mood and affect. Dr. Paul diagnosed mild asthma, hypertension, obesity, and obstructive sleep apnea and prescribed Lisinopril (Tr. 424).
On August 8, 2013, Dr. Paul saw the plaintiff for followup of asthma, hypertension, and osteoarthritis. Dr. Paul indicated that the plaintiff's asthma was mild, intermittent, and had been under control. The plaintiff complained of ongoing joint pain with no progressive symptoms. The plaintiff denied numbness, weakness, or psychiatric symptoms. According to Dr. Paul, the plaintiff's blood pressure had "come down nicely." Dr. Paul refilled the plaintiff's blood pressure and asthma medications. Her mental status was intact, with normal mood and affect. A physical examination was normal (Tr. 423).
On October 30, 2013, Dr. Paul saw the plaintiff for followup of morbid obesity and osteoarthritis, at which time the plaintiff complained of "deteriorating knees." The doctor noted that the plaintiff's weight was increasing. Dr. Paul wrote that the plaintiff had been in the emergency room for knee pain and that she had applied for disability. The plaintiff had been through physical therapy, oral therapy, and injections. Dr. Paul noted that the plaintiff had been scheduled to see an orthopedist for her knees. The plaintiff's mental status was intact, with normal mood and affect. A physical examination revealed synovitis and swelling of both knees; the examination was otherwise normal. Diagnoses included osteoarthritis, bilateral knee degenerative joint disease, pain, hypertension, and morbid obesity. Dr. Paul discussed medications, lifestyle modifications, and weight loss. He refilled the plaintiff's diclofenac and started her on a trial of tramadol (Tr. 429).
On December 10, 2013, Dale Van Slooten, M.D., performed a physical residual functional capacity ("RFC") assessment based on review of the record. Dr. Van Slooten found that the plaintiff could lift and/or carry 50 pounds occasionally and 25 pounds frequently, stand and/or walk for a total of about six hours in an eight hour workday, sit for a total of about six hours in an eight hour workday, and push and/or pull without limitation except as shown for lifting and/or carrying. Dr. Van Slooten also found that the plaintiff could climb ramps/stairs, balance, stoop, kneel, crouch, and crawl frequently, and climb ladders/ropes/scaffolds occasionally, and that she would need to avoid concentrated exposure to fumes, odors, dusts, gases, poor ventilation, and hazards such as machinery and heights (Tr. 182-84).
On December 31, 2013, the plaintiff presented in the emergency room with complaints of bilateral knee pain and swelling. The plaintiff reported that she ran out of her medication. The diagnosis was bilateral knee pain secondary to osteoarthritis. The plaintiff was given a prescription for Lortab and instructed to see an orthopedist. Upon discharge, she ambulated without assistance and drove herself home (Tr. 432-33).
On January 6, 2014, Judith Zink, FNP-C, completed a questionnaire from Disability Determination Services concerning the plaintiff's mental condition because Dr. Paul was no longer with the practice. Ms. Zink reviewed the plaintiff's records and noted that there was no indication of mental health problems. The plaintiff was fully oriented, her thought process was intact, her thought content was appropriate, her mood/affect was normal, and her attention/concentration and memory were good. Ms. Zink stated that the plaintiff exhibited no work-related limitation in function due to a mental condition (Tr. 436-37).
On January 22, 2014, Garland Gudger, M.D., saw the plaintiff for complaints bilateral knee pain, right worse than left. The plaintiff reported pain in her shoulders, back, and knees, left greater than right. She described her pain as constant, aching, cramping, burning, stabbing, and throbbing. The plaintiff conveyed that her pain was debilitating. The plaintiff reported that she was ambulating with a cane. She stated that she had steroid injections to both knees over a year and a half ago that lasted one to two months. X-rays of the bilateral knees, taken that day, showed moderate medial compartment arthritis with medial compartment joint space narrowing, subchondral sclerosis, and osteophyte formation. The plaintiff said that her knees hurt worse with activity, such as walking, and were somewhat improved with rest. The plaintiff reported trying injections and indicated that she had a stomach ulcer that limited her ability to take anti-inflammatories. Dr. Gudger found no swelling or effusion in the plaintiff's knees. He noted that the plaintiff was obese and had palpable painful crepitus with bilateral knee flexion and extension. She had full extension of her bilateral knees and flexion to 100 degrees that caused severe pain. The diagnosis was knee osteoarthritis, worse in the medial compartment and patellofemoral joints. Dr. Gudger noted that the plaintiff was "pretty histrionic today in the clinic." She wanted to continue with conservative management and agreed to injections of both knees. Dr. Gudger injected both knees and recommended followup in six weeks (Tr. 440, 449).
In a function report dated October 14, 2013, the plaintiff stated that she used a cane and a walker, but they had not been prescribed by a physician (Tr. 331).
On February 19, 2014, Dr. Gudger saw the plaintiff for followup. The plaintiff stated that she received no relief from the injections and that her knees had worsened. She was still ambulating with a cane. She had no significant swelling or effusion. Dr. Gudger indicated that the plaintiff was morbidly obese. She had stable crepitus with bilateral knee flexion and extension. She had full extension and flexion to about 100 degrees bilaterally, but it caused her severe pain. The plaintiff had pain with patellar grind. Dr. Gudger found her to have tenderness along her medial and lateral joint line. He wrote that she was ligamentous stable and neurovascularly intact distally. When questioned for a risk assessment, the plaintiff denied recent falls and stated that she did not need assistance to walk. Dr. Gudger noted, "Once again, in our office today, she is pretty histrionic stating injections did not give her any relief whatsoever. Overall, her arthritis is not terrible. I think we need to continue to try to treat this conservatively." Dr. Gudger stated that it was unfortunate that the plaintiff could not take anti-inflammatories due to a stomach ulcer. The plaintiff weighed 305.6 pounds, making her body mass index ("BMI") 46.19, and Dr. Gudger felt weight loss would help immensely. Dr. Gudger recommended exercise and weight loss and prescribed physical therapy. He started the plaintiff on Norco (Tr. 446-47).
On February 27, 2014, the plaintiff had a physical therapy evaluation for her bilateral knee pain. The plaintiff reported four years of progressive knee pain, left greater than right. The plaintiff described pain in her low back, both shoulders, and knees. The therapist noted that the plaintiff was very focused on her pain, and she would not allow them to palpate her left knee or perform range of motion testing. The plaintiff had poor to fair balance with a straight cane and an antalgic gait pattern. The plaintiff was given a home exercise program and advised to call the clinic if she wanted to proceed with physical therapy (Tr. 444, 453-55).
On March 27, 2014, the plaintiff had bilateral knee x-rays that showed mild osteoarthritis (Tr. 469-70).
On March 29, 2014, Jessica Hannah, M.D., performed a consultative physical examination upon referral from Disability Determination Services. The plaintiff alleged disability due to bilateral arthritis in her knees. The plaintiff reported that she had osteoarthritis in her knees for six years, which had gotten acutely worse in the last two years. The plaintiff tried injections, which were not beneficial. She tried tramadol and Percocet occasionally but found that they did not alleviate her symptoms. Dr. Hannah noted that the plaintiff tried physical therapy but quit after one month due to pain. The plaintiff reported needing help from her children with cooking, cleaning, and driving. The plaintiff was using a walker that her neighbor had given her. Dr. Hannah observed that the plaintiff ambulated into the clinic with a walker, took extensive time to ambulate, and displayed significant transient exacerbation of symptoms throughout the examination. Review of x-rays taken on March 27, 2013, showed the plaintiff's left and right knee revealed mild osteoarthritis (Tr. 456-58, 469-70). The plaintiff would not permit Dr. Hannah to examine her "without shouting in pain with minimal pressure to [the] joint that [wa]s disproportionate to even severe level arthritis." She also denied mood changes, depression, suicidal ideation, nervousness, anxiety, difficulty concentrating, or difficulty sleeping at night (Tr. 456-57).
On physical examination, the plaintiff ambulated without assistance. Dr. Hannah noted that she exhibited poor and inconsistent effort. Dr. Hannah found joint swelling at both knees that appeared extensive and crepitus on examination in both knees. Dr. Hannah noted that the plaintiff ambulated into the clinic with a walker, which suggested that she had at least 4/5 strength in her legs, but would not lift against gravity on formal testing. The plaintiff had swelling in her DIP joints of her hands. The examination also showed that the plaintiff's gait and station were normal and that she was able to rise from a sitting position without assistance, stand on her tiptoes, heel and tandem walk without problems, and bend and squat without difficulty (Tr. 457).
A mental status examination revealed that the plaintiff was alert and oriented to time, place, and situation. She was not depressed or anxious, she was able to communicate with no deficits, her recent and remote memory were intact, and she had good insight and cognitive function. A neurological examination revealed good tone, 5/5 strength bilaterally in all muscle groups, except at least 4/5 in the bilateral lower extremities, poor effort on exam, no abnormal reflexes, and intact sensation. A Romberg test was negative, and finger to nose, heel-to-shin, and rapid alternating movements were intact and without fatigue. Based on her examination and the objective evidence, Dr. Hannah concluded that the plaintiff would be able to sit for a full workday, hold a conversation, respond appropriately to questions, and carry out and remember instructions. Dr. Hannah also found that the plaintiff had no appreciable cognitive deficits (Tr. 457-58).
On April 23, 2014, Raju Patnam, M.D., a physician associated with Greenville Medical Associates, PA ("GMA"), saw the plaintiff for complaints of congestion and cough. The plaintiff reported that she "feels well generally." She denied neurologic problems. A physical examination revealed that her gait was normal. Dr. Patnam neither mentioned the need to use a cane nor did he note that the plaintiff presented with a cane. He counseled the plaintiff on weight loss and refilled her medications (Tr. 526-28).
On May 1, 2014, George Walker, M.D., independently reviewed the prior evidence as well as the updated record and opined that Dr. Van Slooten's initial RFC assessment was correct in that the plaintiff was capable of performing medium work with postural and environmental limitations (Tr. 182-84, 209-12).
On May 13, 2014, Lee Coleman, Ph.D., reviewed the record and found that the plaintiff did not have a medically determinable mental impairment. There was no formal mental diagnosis and, therefore, no medically determinable impairment. Dr. Coleman explained that the plaintiff had no history of psychiatric services and was not taking any psychotropic medication. Dr. Coleman opined that the plaintiff's statements were not deemed credible and that the severity of her allegations was not supported by objective findings (Tr. 208).
When Dr. Patnam saw the plaintiff for followup on May 14, 2014, her gait was normal. Dr. Patnam reviewed the plaintiff's bone density scan, which was normal. Dr. Patnam refilled Lisinopril, Singulair, albuterol, Nexium, and tramadol prescriptions (Tr. 529-30).
On July 28, 2014, Theresa Little, PA-C, a physician's assistant associated with Greenville Health System ("GHS"), saw the plaintiff for complaints of bilateral knee pain. Ms. Little noted that the plaintiff had not responded to conservative treatment with injections and that she could not take anti-inflammatories. Ms. Little indicated that the plaintiff had been evaluated by the Total Joint Clinic but was deemed not an appropriate candidate for total knee arthroplasty due to her weight and associated health issues. The plaintiff also complained of back pain. The plaintiff explained that her knee pain had begun gradually and now was constant. It worsened with rain, sitting, standing, and lying down. She explained that heat, ice, and bracing had not helped. The plaintiff described her pain as sharp and aching all around her knees with burning and tingling on the backs of her legs. She had intermittent numbness in the backs of her legs as well. Ms. Little wrote that the plaintiff walked with a cane. The plaintiff said that she could not do her own grocery shopping, and her decrease in activity was depressing her. The plaintiff was able to drive, but it made her pain increase. The plaintiff reported that she had back pain since an automobile accident in 1996. Her back pain was constant, aching, and stabbing. She felt that her back pain radiated into her gluteal muscles and legs. The plaintiff had limited range of motion with pain and tenderness in her cervical midline and right trapezius. She had give-away weakness throughout her lower extremities with complaints of pain. She had limited range of motion in both knees with crepitus and tenderness to palpation. Ms. Little noted that the plaintiff had poor posture and flexed forward at the waist. The plaintiff had decreased lumbar flexion with complaints of pain, and she was tender in her lower lumbar midline and over her facet and SI joints bilaterally. A physical examination revealed intact sensation and normal reflexes in the lower extremities. Although range of motion was limited in both knees, there was no instability. A musculoskeletal examination revealed normal muscle tone and no atrophy or fasciculation. Gait was steady, stiff, and antalgic. A Romberg test was normal. Although the plaintiff had some difficulty with tandem walk, her ability to heel and toe walk was intact. The plaintiff was unable to squat, and she had difficulty with transitional movement. The plaintiff denied psychological problems, and a psychological examination revealed that her mood and affect were appropriate. Ms. Little diagnosed knee pain and back pain unspecified. Ms. Little prescribed Bultran's patches and stopped the plaintiff's tramadol, Norco, and diclofenac. Ms. Little explained that the plaintiff needed to focus on losing 50 to 100 pounds in order to have a successful total knee arthroplasty (Tr. 486-88).
On August 15, 2014, Dr. Patnam saw the plaintiff for medication refills (for hypertension), and he started her on a trial of Adipex for weight gain. The plaintiff stated that she felt well in general and denied suicidal thoughts. Her gait was normal (Tr. 535-38).
On August 25, 2014, April Smith, PA-C, a physician's assistant associated with GHS, saw the plaintiff for complaints of bilateral knee pain. The plaintiff reported that she had been unable to increase the Butran's patch to 10 mcg and had just finished using the second 5 mcg patch. The plaintiff complained of pain in her neck radiating down her spine, "big knots" in her back, and numbness in her bilateral upper extremities. The plaintiff reported the inability to stand long enough to cook a meal. She described difficulty rising from a seated position. The plaintiff estimated that she could sit for about 20 minutes before needing to get up and move around. The plaintiff complained of pain lifting anything heavier than a salt shaker. Range of motion testing was deferred because the plaintiff complained of difficulty with balance. The plaintiff would not perform a flexion, abduction, and external rotation ("FABER") test due to complaints of knee pain. The plaintiff's gait was steady and antalgic, with a shift in weight to the right. Ms. Smith noted, "exaggerated pain display." Also on this date, the plaintiff had lumbar spine x-rays, which showed lumbar scoliosis and spondylosis without evidence suggesting abnormal motion with flexion and extension (Tr. 489-90, 518).
On September 22, 2014, Ms. Little saw the plaintiff for followup of bilateral knee pain. The plaintiff reported that she was "feeling terrible today" and complained of pain in her lower back and knees. The increased dose of Butran's patch was not giving her much relief. The plaintiff felt sleepy at times, and she had blurry vision when driving so she started having her daughter drive her. Ms. Little noted that the plaintiff had lost 13 pounds since her first visit. Ms. Little found the plaintiff to have mild edema in her lower extremities. Her gait was steady and antalgic with the use of a cane. Ms. Little stopped the plaintiff's Butran's patches and started her on a trial of Opana (Tr. 491-92).
Also, on September 22, 2014, Dr. Patnam saw the plaintiff for a medication refill. The plaintiff told Dr. Patnam that she "feels generally well." A neurological examination was normal. Dr. Patnam indicated that the plaintiff weighed 248 pounds, making her BMI 44.32. Dr. Patnam discussed diet and weight loss and refilled the plaintiff's medications, including Adipex. Dr. Patnam neither mentioned the need for a cane nor did he mention that the plaintiff presented with a cane (Tr. 539-40).
On October 20, 2014, Ms. Smith saw the plaintiff for complaints of bilateral knee pain. Although the plaintiff complained of pain with range of motion testing of the knees, Ms. Smith found her effort "questionable." The plaintiff's insurance had denied coverage of her Opana, and she switched to Nucynta. Ms. Smith noted that the plaintiff was unable to tolerate NSAIDs due to stomach issues. The plaintiff reported that she could not walk at times because of her pain. Ms. Smith indicated that the plaintiff had limited range of motion in her lumbar spine due to pain and decreased range of motion in her knees. The plaintiff 's gait was steady and antalgic, leaning heavily on a cane to the left. Ms. Smith noted that the plaintiff was not a candidate for morphine because she was allergic to codeine. Ms. Smith encouraged the plaintiff to exercise more, especially in a pool, and to lose weight (Tr. 493-95).
On October 22, 2014, Dr. Patnam evaluated the plaintiff in a followup of essential hypertension, pure hypercholesterolemia, asthma, esophageal reflux, and abnormal weight gain. Dr. Patnam recommended that the plaintiff do better with diet and exercise. He added Topamax to the plaintiff's medications (Tr. 541-42).
On November 18, 2014, David Shallcross, M.D., a physician associated with GHS, saw the plaintiff for complaints of knee and back pain with degenerative joint disease and to complete disability paperwork. The plaintiff reported that she lost weight (310 to 270 pounds). She complained that it hurt her to be on her feet, walk, carry, and sit for prolonged periods. She told Dr. Shallcross that she did not think she could go back to work because of her back and knees. A physical examination revealed that the plaintiff arose from a sitting to a standing position independently but had to push off with her hands. She had a slow, shifting, broad based gait, extremely limited motion of her lumbar spine, and tenderness in both knees. She had good movement in her ankles. The plaintiff reported that Nucynta helped minimally. Dr. Shallcross noted that the plaintiff's weight was down to 270 pounds. He indicated that the plaintiff had last worked a year and a half ago. Dr. Shallcross stated that the plaintiff was morbidly obese. Dr. Shallcross stated:
The patient is not likely a good candidate for return to the workforce. I do not think she could do anything in a job in which she would need to be on her feet or carrying and I do not think she could stand sitting in an upright position for 8 hours a day. I recommend increasing Nucynta to 200 mg twice a day and I will fill out her Social Security Disability form.(Tr. 496-97).
On November 20, 2014, Dr. Patnam evaluated the plaintiff in followup and refilled her medication. Dr. Patnam noted that the plaintiff was doing well and had lost 36 pounds in seven months (Tr. 543-44).
On December 19, 2014, Dr. Patnam evaluated the plaintiff. She continued to lose weight. She reported continued arthritis pain all over her body. The plaintiff had reported that she had seen "ortho who recommended some knee replacements." Dr. Patnam refilled her medications (Tr. 545-46).
On December 22, 2014, Ms. Smith saw the plaintiff for followup. The plaintiff had been out of her medication for some time and had been unable to pick it up until that day. The plaintiff complained of back, knee, and right shoulder pain. On examination, the plaintiff had decreased range of motion in her right shoulder and pain with range of motion in her knees. Her gait was steady and antalgic; she presented with a cane. Ms. Smith continued the plaintiff's Nucynta. She stated that the plaintiff would be started with a disabled placard due to an "inability to walk 100 feet without aggravating pain condition, six months" (Tr. 498-99).
On January 19, 2015, Dr. Patnam evaluated the plaintiff for followup. The plaintiff was noted to be doing well. She had gained four pounds over Christmas but had lost 40 pounds in a year. Dr. Patnam discussed diet and refilled the plaintiff's medications (Tr. 547-49).
On January 21, 2015, Ms. Little evaluated the plaintiff for followup. The plaintiff reported that her pain levels had been high. She reported that Nucynta helped with pain for about three hours and that it caused jitteriness, nausea, and dry mouth. The plaintiff indicated that she was willing to try them a little longer to see if they would start working better. The plaintiff had started walking with her daughter for exercise, but she was only able to tolerate 15 minutes. The plaintiff described numbness in her posterior legs with sitting, standing, or walking too long. She said that she could drive okay. On examination, the plaintiff had limited lumbar flexion. She complained of dizziness when bending. The plaintiff's gait was steady with the use of a cane and antalgic. Ms. Little refilled the plaintiff's Nucynta and continued her with another six month disability placard (Tr. 500-01).
On February 19, 2015, Dr. Patnam saw the plaintiff for cold symptoms. A physical examination revealed that she was alert and oriented times three (to person, place, and time). The plaintiff's gait was normal with no reference to the need for a cane, she had no motor or sensory deficits, and her reflexes were normal. She denied suicidal thoughts (Tr. 550-51).
On March 16, 2015, Dr. Shallcross saw the plaintiff for followup of knee and back pain. Dr. Shallcross noted that the plaintiff's back was stable. The plaintiff reported that she did better when she increased her medication on her own. The plaintiff explained that her left knee was worse and that it felt like her left leg was giving out on her. A physical examination revealed that the plaintiff's gait was antalgic on the left, and she seemed to be favoring the left knee. She could not get up on her toes or heels. Her lower extremity reflexes were diminished, although sensation was intact throughout. Dr. Shallcross noted, "Probable worsening of knee [degenerative joint disease]. Strength in the lower extremities is actually quite good and there is no other evidence of sensory loss." Dr. Shallcross prescribed an increased dose of Nucynta and indicated that he would continue her disability placard (Tr. 502-03).
On March 19, 2015, Dr. Patnam saw the plaintiff for followup. The plaintiff's gait was normal with no mention of a cane. She had no motor or sensory deficits, and her reflexes were normal. She denied suicidal thoughts. Dr. Patnam refilled her medications including Adipex and Topamax (Tr. 552-54).
On March 29, 2015, Ana Endaya, FNP, a family nurse practitioner associated with GMA, saw the plaintiff for complaints of right shoulder pain. A review of systems was negative for gait abnormality or muscular weakness. The plaintiff conveyed that her pain started four years prior. She was attending pain management for lower back and knee pain. She reported that the increased dose of Nucynta did not help her shoulder pain. The plaintiff said that her pain was interfering with her sleep. Ms. Endaya stopped the plaintiff's Cataflam due to her stomach ulcers and continued the plaintiff's other medications. A neurological examination revealed normal gait and no motor or sensory deficits. A musculoskeletal examination revealed that all extremities were symmetrical in size and shape. The examination also showed that the plaintiff had 5/5 strength bilaterally and that her bilateral shoulders were nontender with full range of motion (Tr. 554-57).
On April 15, 2015, Ms. Smith evaluated the plaintiff for followup. The plaintiff felt like her whole body was falling apart, and the rain seemed to be increasing her pain. She described increased weakness and requested a right shoulder x-ray due to pain. The plaintiff had decreased range of motion in her left hip with pain referred to her groin. She had decreased range of motion in her right shoulder, and she had tenderness in the posterior aspect of her shoulder and over her bicipital groove. Ms. Smith stated that the plaintiff had an antalgic gait and used a cane. Ms. Smith indicated that they would continue the plaintiff's disability placard, she refilled the plaintiff's Nucynta, and she ordered hip and shoulder x-rays (Tr. 504-05).
An April 17, 2015, x-ray of the left hip showed mild osteoarthritis. An x-ray of the plaintiff's right shoulder revealed a subacromial spur and mild degenerative changes in the acromioclavicular joint and glenohumeral joint (Tr. 521-22).
On April 27, 2015, Dr. Patnam saw the plaintiff for lumbago, benign essential hypertension, esophageal reflux, and morbid obesity. A review of systems was negative for gait abnormality, depressed mood, and anxiety. The plaintiff denied suicidal thoughts or sleep disturbance. A neurologic examination revealed that the plaintiff's gait was normal and that she had no motor or sensory deficits. A musculoskeletal examination revealed 5/5 strength bilaterally. Her bilateral shoulders were nontender with full range of motion (Tr. 558-59).
On May 15, 2015, Dr. Shallcross saw the plaintiff for followup of right shoulder, knee, and hip pain. A right shoulder x-ray showed bone spurring at the AC joint and mild degenerative changes. A left hip x-ray showed mild degenerative changes. The plaintiff reported that she continued to drive. The plaintiff complained of pain in her right shoulder, neck, and low back. The plaintiff asked if there was anything she could do for her right shoulder, noting that she had not done well with physical therapy or injections in the past. Dr. Shallcross indicated that the plaintiff was overweight. She had a head forward, shoulder forward posture. A physical examination revealed that her gait was stable. Dr. Shallcross described "a lot of pain behavior" and noted that the plaintiff refused to make any effort with internal and external rotation. The plaintiff was diffusely tender. Dr. Shallcross concluded, "Patient is a bit of a symptom magnifier, but she does have arthritic changes and may well have an impingement syndrome." He continued the plaintiff's current medications and ordered an MRI of her right shoulder (Tr. 506-08).
On May 20, 2015, the plaintiff self-referred to Judi Phillips, M.S., LPN, for a mental health assessment related to frustration and concern about her joint and muscle pain. The plaintiff endorsed pain due to osteoarthritis and rheumatoid arthritis and stated that she might have a torn rotator cuff. The plaintiff explained that she had always been active and "wants her body back." Ms. Phillips noted the plaintiff's history and stated that "her strong spirit shone through." The plaintiff reported problems in the past with high blood pressure but conveyed that it did not keep her from working two jobs. The plaintiff had been diagnosed with sleep apnea and wore a CPAP at night. She had a hard time sleeping due to her pain from osteoarthritis, rheumatoid arthritis, and shoulder pain. The plaintiff had not received relief from various pain medication trials, and she was unable to take other medications due to ulcers. The plaintiff's doctor told her that her back pain was not going to improve and that she should file for disability. The plaintiff was working to lower her BMI so that she could have surgery on her knees. The plaintiff explained that she had been strong her entire life and felt embarrassed that she was not well. Ms. Phillips noted that the plaintiff appeared lucid with no suggestion of thought problems and that her memory appeared within normal limits. Ms. Phillips indicated that the plaintiff appeared open about her life and her frustrations. The plaintiff did not want to be a burden to her children and this was a great concern for her. The plaintiff reported that her strong faith had kept her alive despite her multiple health problems. Diagnoses included depressive disorder due to rheumatoid arthritis, osteoarthritis, and debilitating chronic pain. Ms. Phillips assessed a Global Assessment of Functioning ("GAF") of 60. Ms. Phillips stated, "She is clearly a fighter and that strong will and her strong faith in God are her greatest strengths" (Tr. 473-74).
A GAF score is a number between 1 and 100 that measures "the clinician's judgment of the individual's overall level of functioning." See Am. Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental Disorders, 32-34 (Text Revision 4th ed. 2000) ("DSM-IV"). A GAF score between 61 and 70 indicates some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functioning pretty well. Id. A GAF score between 51 and 60 indicates moderate symptoms or moderate difficulty in social, occupational, or school functioning. Id. The court notes that the fifth edition of the DSM, published in 2013, has discontinued use of the GAF for several reasons, including "its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice." See Am. Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental Disorders, 16 (5th ed. 2013) ("DSM-V").
On May 27, 2015, Dr. Patnam saw the plaintiff for a medication refill. A review of systems was negative for gait abnormality or muscular weakness. The plaintiff reported continued right shoulder pain, which was not being helped by the Nucynta. The plaintiff was unable to sleep due to her pain. A physical examination revealed that the plaintiff's gait was normal and that she had 5/5 strength bilaterally. Dr. Patnam did not mention a cane. Dr. Patnam continued the plaintiff's medications and advised her to continue following with pain management (Tr. 560-62).
On June 16, 2015, Ms. Smith saw the plaintiff for followup for right shoulder pain, knee pain, and hip pain. Ms. Smith noted that the plaintiff had refused an injection at her last appointment. Ms. Smith indicated that the plaintiff's shoulder MRI showed large osteophytes and fraying of the infraspinatus and supraspinatus. The plaintiff had seen an orthopedist in the past who told her she had bone spurs in her knees. The plaintiff had stopped taking Nucynta because it was not effective. The plaintiff described pain with rainy weather. The plaintiff told Ms. Smith that she had been to see Ms. Phillips, a counselor, for depression and suicidal ideation. A musculoskeletal examination revealed decreased range of motion of the right shoulder "with questionable effort and pain behavior." A psychiatric evaluation revealed appropriate mood and affect and no thought disorder. The plaintiff was tender throughout her right shoulder. The plaintiff's gait was antalgic and steady. Ms. Smith started the plaintiff on a trial of Voltaren gel and referred her for an orthopedic consultation (Tr. 509-10).
On July 14, 2015, Ms. Little saw the plaintiff for followup of knee pain. The plaintiff felt worse with rainy weather. She indicated that the orthopedic doctor she was referred to did not take her insurance, and she was scheduled to go to Steadman Hawkins in August instead. The plaintiff reported that she did not get her Voltaren gel because her insurance would not cover it. Ms. Little indicated that an appeal was done to the insurance company and that it was now approved. The plaintiff was able to drive at times but unable to drive at other times due to leg pain. The plaintiff reported using a pedal cycle. Ms. Little noted that the plaintiff had mild edema in her knees and ankles. A physical examination revealed that gait was steady and antalgic with a cane. The plaintiff had difficulty with transitional movements. Ms. Little refilled the plaintiff's Voltaren gel and indicated that they would continue the plaintiff's disability placard (Tr. 511-12).
On July 23, 2015, Dr. Patnam saw the plaintiff for a physical examination. The plaintiff denied neurological or psychological problems. Dr. Patnam reviewed the plaintiff's blood work, which showed anemia as well as high cholesterol, triglycerides, and HbA1c. Dr. Patnam indicated that the plaintiff passed out before her EKG. He found the plaintiff to have lumbar paraspinal tenderness, full range of motion of the lumbar spine, and and bilateral sacroiliac joint tenderness. A neurologic examination revealed full range of motion of the lumbar spine and bilateral sacroiliac joint. A musculoskeletal examination revealed chronic changes of osteoarthritis. A psychological examination revealed normal but flat affect and normal speech. The plaintiff was oriented to person, place, and time. She had a normal gait and no clubbing or edema of extremities (Tr. 563-66).
On July 25, 2015, Ms. Endaya saw the plaintiff for complaints of worsening left knee pain that began two weeks ago. The plaintiff had no motor or sensory deficits, and she ambulated with a cane. The plaintiff was prescribed a pain gel by her pain management doctor, but her insurance would not cover it. On examination, the plaintiff had tenderness to palpation in her left middle lower knee. Ms. Endaya recommended that the plaintiff follow up with an orthopedic doctor and pain management. She reviewed and continued the plaintiff's medications. A psychological examination was negative for depressed mood or anxiety, and mood and affect were normal. The plaintiff denied suicidal thoughts or sleep disturbance (Tr. 567-71).
On August 5, 2015, Michael Kissenberth, M.D., evaluated the plaintiff for complaints of right shoulder pain upon referral from Dr. Shallcross. The plaintiff reported that her shoulder pain began several years before and had occurred primarily with overhead activity. Dr. Kissenberth indicated that the plaintiff's pain was diffuse with worse pain lateral to her acromion. The plaintiff rated her pain at nine out of ten, and she described it as sharp. The plaintiff's pain was worse with movement and better with rest. Dr. Kissenberth wrote that the plaintiff had applied for disability. On examination, the plaintiff's right shoulder exhibited AC joint crepitus and AC joint and lateral acromial joint tenderness. The plaintiff had positive Neer and Hawkins tests. She had reduced strength and limitation due to pain. Dr. Kissenberth had x-rays taken, which showed moderate cysts in the AC joint, moderate narrowing at the AC joint, and marked spurs under the acromion. Dr. Kissenberth diagnosed right shoulder pain in her joint and right shoulder subacromial impingement. He gave the plaintiff an injection in her right shoulder (Tr. 579-86).
On August 18, 2015, Ms. Phillips saw the plaintiff for followup and provided a progress summary. Ms. Phillips indicated that the plaintiff had made limited progress in realizing that her thoughts could affect her feelings and that she could use self talk to decrease depressed feelings. The plaintiff was focused on her need to share the overwhelming nature of her pain. Ms. Phillips stated that the plaintiff had not begun a narrative in a concrete way, but had talked about how her greatest pleasure was being strong and working two jobs. Ms. Phillips noted that this was the plaintiff's first experience with therapy, and she had been willing to share. The plaintiff had been discouraged by her pain and by the futile efforts of the doctors whose treatments had not been helpful. Ms. Phillips described that the plaintiff had difficulty with self-awareness and wanted nothing more than to regain her strength to return to work. The plaintiff had always been the strong one in her family and had little patience for weakness. The plaintiff's faith in God had been her greatest ally. Ms. Phillips opined that the plaintiff would continue to need the support of therapy as she faced the prospect of more medical procedures. Ms. Phillips hoped that in time the plaintiff could allow herself to use her imagination more freely to experience relief from her constant discomfort, since she was not able to take any medication to help alleviate her chronic pain. Ms. Phillips indicated that ongoing treatment was medically necessary due to the chronic nature of the plaintiff's pain and her limited options for relief. The plaintiff reported intense depression but had reservations about antidepressant medication (Tr. 475-76).
An August 25, 2015, x-ray of the lumbar spine revealed lumbar scoliosis and spondylosis with no evidence to suggest abnormal motion with flexion and extension (Tr. 518).
On September 9, 2015, Dr. Kissenberth reevaluated the plaintiff. The plaintiff reported that her pain was unchanged and constant. She rated her pain at ten out of ten. The plaintiff reported getting only two days of relief after her injection. Dr. Kissenberth noted that the plaintiff's MRI showed some chronic partial thickness tearing of the rotator cuff, large subacromial spur, AC arthritis, and bicipital tenosynovitis. The plaintiff had refractory right shoulder pain, and the doctor recommended right shoulder arthroscopy (Tr. 591-96).
On September 14, 2015, Dr. Shallcross saw the plaintiff for complaints of left knee and hip pain, right shoulder pain, and morbid obesity. Dr. Shallcross noted that the plaintiff had been seen by Dr. Kissenberth's office and given a subacromial injection. The plaintiff reported that the injection was of no benefit. Dr. Shallcross explained that the plaintiff's next step was surgery. He said that she would need decompression of the clavicle, but since she had considerable arthritic changes in the shoulder joint itself, she would likely require a shoulder replacement. The plaintiff reported that she did not want to take any pain medications. She explained that her pain was severe, but she was afraid that she may overuse pills if they were given to her. Dr. Shallcross also noted that the plaintiff was seeing a counselor and that a review of systems was positive for suicidal ideas, sleep disturbance, and dysphoric mood. Dr. Shallcross indicated that the plaintiff was morbidly obese. A physical examination revealed a broad-based, waddling gait that was very short-strided. Dr. Shallcross indicated that the plaintiff complained of pain in her hips and knees when she walked. He found the plaintiff to have very limited range of motion in her shoulder. Dr. Shallcross stated, "The patient has widespread arthritic changes. It would be expected that she would want some pain medications but she is not asking for any. She will be seen again after she has surgery on her shoulder, hopefully in the very near future, and we will talk about whether she wants analgesics for knee or hip or whether she wants to go ahead with surgery" (Tr. 513-17).
On October 22, 2015, Dr. Patnam saw the plaintiff for medication refills. A review of systems was negative for gait abnormality or muscular weakness, depressed mood, anxiety, suicidal ideation, or sleep disturbance. The plaintiff had tenderness to palpation in her left knee. Dr. Patnam added Pravastatin to the plaintiff's medications. A neurologic examination revealed that the plaintiff had no motor of sensory deficits but ambulated with a single cane. A psychiatric examination revealed normal affect and appropriate mood (Tr. 572-73).
On October 30, 2015, Dr. Kissenberth evaluated the plaintiff for a pre-operative examination. He prescribed Norco and Zofran (Tr. 597-606). On that same date, Dr. Kissenberth performed right shoulder arthroscopic rotator cuff repair, biceps tenotomy, labral debridement, subacromial decompression, and distal clavicle resection (Tr. 641-42).
On November 11, 2015, Dr. Kissenberth saw the plaintiff for post-surgical followup. The portal sites were healing, and there was no drainage or erythema. Dr. Kissenberth indicated that the plaintiff had issues with pain, and he provided her with an additional prescription for oxycodone. He noted that the plaintiff was expectedly tender over the distal clavicle. Dr. Kissenberth discussed therapy with the plaintiff and explained that they would continue to progress her down the standard medium rotator cuff tear protocol (Tr. 479-83).
On November 13, 2015, Dr. Patnam saw the plaintiff for complaints of pain following right rotator cuff surgery (Tr. 574-75). The plaintiff also complained of left leg pain and swelling. Dr. Patnam noted that the plaintiff ambulated with a cane. No changes were made to the plaintiff's current treatment regimen. A review of systems was negative for gait abnormality or muscular weakness, depressed mood, anxiety, suicidal ideation, or sleep disturbance. A neurologic examination revealed that the plaintiff had no motor or sensory deficits (Tr. 575).
On November 18, 2015, Dr. Patnam saw the plaintiff for complaints of left leg pain. Dr. Patnam noted that an imaging study of the lumbosacral spine was normal. On examination, Dr. Patnam found the plaintiff to have tenderness in her right paraspinals, left paraspinals, right sacroiliac joint, left sacroiliac joint, right sciatic notch, and left sciatic notch. A review of systems was negative for gait abnormality or muscular weakness, depressed mood, anxiety, suicidal ideation, or sleep disturbance. Although the plaintiff complained of limited range of motion due to pain, her muscle strength was 5/5 in all groups bilaterally, her sensation was intact, and her reflexes were normal. Heel walking was normal, and a straight-leg raising test was negative. Dr. Patnam indicated that the plaintiff had tenderness in her greater trochanter. He continued her current treatment regimen (Tr. 576-77)
At the administrative hearing, the plaintiff testified that she had lower back, knee, hand, and shoulder pain as a result of osteoarthritis, which prevented her from working. She also testified that she had difficulty concentrating due to severe pain. She stated that she was not on any pain medication. She had taken hydrocortisone in the past, but it did not help (Tr. 141, 147). When asked to describe her pain on a scale of one to ten, with ten being the most severe, she stated, "15." When the ALJ explained that a ten would mean the need to go to the emergency room, the plaintiff responded, "[a] 10," and told the ALJ that she needed to be hospitalized at that time. The ALJ informed the plaintiff they could take a break or, if necessary, he would call for medical assistance. The plaintiff then stated, "Okay, all right. Okay. We - go ahead, . . . finish" (Tr. 143-45).
The plaintiff came to the administrative hearing with a cane, which she stated that she had been using for two years. She stated that, at times, she used a walker at home. She acknowledged that a doctor did not prescribe the cane or walker (Tr. 143-44).
In describing a typical day, the plaintiff testified, "Oh, mainly I read my [B]ible and if I'm not crying or whatever. . . " She did not do any household chores, lived alone, and relied on her daughters, who came every day to do her cooking, cleaning, and laundry and help with bathing and dressing (Tr. 145-46). Later, the plaintiff testified that she lived with her 17-year-old son. The plaintiff acknowledged that she had a driver's license and drove "every now and then" (Tr. 148-49).
A vocational expert described the plaintiff's past relevant work as follows: cutting machine operator, semi-skilled and medium in exertional level; doffer, unskilled and medium in exertional level; packer, unskilled and light in exertional level; parts inspector, semi-skilled and light in exertional level; parts assembler, unskilled and medium in exertional level; and bakery worker, unskilled and medium in exertional level (Tr. 167-68).
The ALJ asked the vocational expert to assume a hypothetical individual with the plaintiff's vocational profile (age, education, and work experience) and could lift and/or carry 50 pounds occasionally and 25 pounds frequently; sit, stand, and/or walk for six hours during an eight-hour day; push and push as much as she could lift and/or carry; frequently climb ramps and stairs; occasionally climb ladders, ropes, scaffolds; frequently balance, stoop, kneel, crouch, and crawl; and frequently be in an environment with unprotected heights, moving machinery, and dust, odors, fumes, and pulmonary irritants (Tr. 169). Given the aforementioned limitations, the vocational expert testified that the individual could perform all of the plaintiff's past relevant work as generally performed in the national economy and as actually performed. The vocational expert also testified that the individual could perform other work that exists in significant numbers in the national economy including the medium, unskilled jobs of laundry worker, dishwasher, and janitor (Tr. 169-70).
The ALJ also asked the vocational expert to assume that the aforementioned individual would be limited to light work, with the other limitations remaining the same. The vocational expert testified that the individual could perform the plaintiff's past relevant work as a parts inspector and packer as well as other work that exists in significant numbers in the national economy including the light, unskilled jobs of garment folder, machine tender, and bottle line attendant (Tr. 171-72).
When asked to assume that the aforementioned individual would be limited to sedentary work, with the other limitations remaining the same, the vocational expert testified that the individual could not perform any of the plaintiff's past relevant work but could perform other work that exists in significant numbers in the national economy including the sedentary, unskilled jobs of machine tender, assembler, and order clerk (Tr. 172-73).
The plaintiff's attorney asked, "If the hypothetical individual described in the above hypotheticals would have to rotate sitting and standing every 15 minutes for a total of four hours standing and four hours sitting, how would that affect the jobs listed in hypothetical one, two, and three?" The vocational expert testified that the medium jobs would not allow for a sit/stand option. He testified that the light and sedentary jobs "would allow for just a pure sit/stand option. That is making the assumption that an individual stays on task, maintains the same pace and persistence." However he also explained that "in a realistic sense, changing positions that frequently every 15 minutes, it's my experience that those individuals don't generally stay on task. If they're changing positions that frequently, it's just not likely they're going to maintain the same pace and persistence and those jobs would not allow them to - for - they would not allow for that type of limitation." The vocational expert also testified that if the hypothetical person needed to elevate his or her legs to waist height there would be no jobs that would allow for that type of restriction (Tr. 173-74).
Evidence Submitted to the Appeals Council
The plaintiff has submitted documentation showing that on October 4, 2016, she submitted to the Appeals Council a statement dated August 24, 2016, from Dr. Shallcross (doc. 17 at 21; see doc. 17-1 at 1-2). As noted above, the Appeals Council denied the plaintiff's request for review on November 4, 2016 (Tr. 1-6). In denying review, the Appeals Council stated that it considered certain additional evidence, which was made part of the record (Tr. 5-6), but the evidence did not provide a basis for changing the ALJ's decision (Tr. 2). The Appeals Council also listed medical records submitted by the plaintiff that were dated after the ALJ's decision and found that those records did not affect the decision about whether the plaintiff was disabled on or before February 2, 2016 (Tr. 2). The statement from Dr. Shallcross is not referenced in the Appeals Council's decision and was not made a part of the record (Tr. 1-4). The plaintiff has attached a copy of the statement to her initial brief (doc. 17-1 at 3).
In the statement, Dr. Shallcross stated that he first saw the plaintiff on July 8, 2014, and that her primary complaint at that time was knee pain. Dr. Shallcross found that x-ray imaging on January 22, 2014, showed that the plaintiff had severe degenerative joint disease in both of her knees. He noted that the plaintiff had been seen by Dr. Woods but was too heavy to get a knee replacement. The plaintiff was on tramadol and had multiple injections to her knees by the teaching clinic. On clinical examination, it was found that the plaintiff had bony enlargement and widespread tenderness. On April 15, 2017, an x-ray of the plaintiff's right shoulder illustrated mild degenerative changes. Dr. Shallcross noted that the plaintiff at that time mentioned low back pain, but he "did not work her up for that." Dr. Shallcross explained that on March 16, 2015, the plaintiff said that her back pain was stable. Dr. Shallcross stated that he had been using Nucynta to treat the plaintiff. He said that the plaintiff's August 25, 2014, x-ray showed lumbar scoliosis and arthritic changes and that when she was seen in the office, she had been unable to walk 100 feet, which was consistent with her imaging. Dr. Shallcross wrote, "It is consistent with her condition that she would be limited to no more than sedentary work, with sedentary work defined as being able to stand or walk no more than 2 hours total out of an 8-hour work day." Furthermore, he stated, "It is consistent with her condition that she would not be able to lift more than 10 lbs. occasionally and nothing more than light things such as papers or files frequently due to a combination of her orthopedic issues." Dr. Shallcross said that if the plaintiff had to do the minimal amount of walking necessary to perform a sit down job, it was "consistent with her condition that she would suffer too many interruptions to her concentration to allow her to perform detail oriented, multiple step processes." Dr. Shallcross indicated that when it came to the plaintiff's mental limitations, he suspected her mental health issues would be the primary problem limiting her. He indicated that the plaintiff presented as notably depressed and that he had talked to her about this problem. Dr. Shallcross stated, "She has had the limitations I describe at least throughout the time period I have treated her" (doc. 17-1 at 3).
ANALYSIS
The plaintiff argues that the ALJ erred by failing to consider Dr. Shallcross' November 18, 2014, opinion and that the Appeals Council erred by failing to consider his August 24, 2016, opinion (doc. 17 at 27-33).
The regulations require that all medical opinions in a case be considered. 20 C.F.R. §§ 404.1527(b), 416.927(b). The regulations further direct ALJs to accord controlling weight to a treating physician's opinion that is well-supported by medically-acceptable clinical and laboratory diagnostic techniques and that is not inconsistent with the other substantial evidence of record. Id. §§ 404.1527(c)(2), 416.927(c)(2). If a treating physician's opinion is not given controlling weight, the ALJ must proceed to weigh the treating physician's opinion, along with all the other medical opinions of record, based upon the following non-exclusive list of factors: (1) the examining relationship; (2) the length of the treatment relationship and the frequency of the examinations; (3) the nature and extent of the treatment relationship; (4) the evidence with which the physician supports his opinion; (5) the consistency of the opinion; and (6) whether the physician is a specialist in the area in which he is rendering an opinion. Id. §§ 404.1527(c)(1)-(5), 416.927(c)(1)-(5). See also Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005).
These regulations apply for claims, like the plaintiff's, that were filed before March 27, 2017. See 20 C.F.R. §§ 404.1527, 416.927. For claims filed on or after March 27, 2017, a new regulatory framework for considering and articulating the value of medical opinions has been established. See id. §§ 404.1520c, 416.920c. See also 82 FR 5867, 2017 WL 168819 (revisions to medical evidence rules dated Jan. 18, 2017, and effective Mar. 27, 2017).
After the ALJ renders a decision, a claimant who has sought review from the Appeals Council may submit evidence to the Appeals Council as part of the process for requesting review of an adverse ALJ decision. 20 C.F.R. §§ 404.968, 404.970(b). "The Appeals Council must consider evidence submitted with the request for review in deciding whether to grant review if the additional evidence is (a) new, (b) material, and (c) relates to the period on or before the date of the ALJ's decision." Wilkins v. Sec'y, Dep't of Health & Human Servs., 953 F.2d 93, 95-96 (4th Cir.1991) (en banc) (citation and internal quotation marks omitted). The Social Security regulations require only that the Appeals Council consider the new and material evidence in deciding whether to grant review, and, if it chooses not to grant review, there is no express requirement that the Appeals Council explain its rationale for denying review. Meyer v. Astrue, 662 F.3d 700, 705-06 (4th Cir.2011). When the Appeals Council receives additional evidence and denies review, the issue for the court is whether the Commissioner's final decision is supported by substantial evidence and reached through the application of the correct legal standard. Id. at 704 (citation omitted). "In making this determination, we 'review the record as a whole' including any new evidence that the Appeals Council 'specifically incorporated . . . into the administrative record.'" Id. (quoting Wilkins, 953 F.2d at 96).
As the Fourth Circuit stated in Meyer, when the newly presented evidence is uncontroverted in the record or all the evidence is "one-sided," a reviewing court has no difficulty determining whether there is substantial evidence to support the Commissioner's decision. Id. at 707. However, when the "other record evidence credited by the ALJ conflicts with the new evidence," there is a need to remand the matter to the fact finder to "reconcile that [new] evidence with the conflicting and supporting evidence in the record," as "[a]ssessing the probative value of the competing evidence is quintessentially the role of the fact finder." Id.
In Bird v. Comm'r of Soc. Sec. Admin., the Fourth Circuit held that newly produced medical evidence created outside the relevant time period of the claim should be considered if there is evidence of linkage between the earlier relevant medical evidence and the newly produced medical evidence that may be "reflective of a possible earlier and progressive degeneration." 699 F.3d 337, 341-42 (4th Cir. 2012) (citations omitted). See Wise v. Colvin, C/A No. 6:13-2712-RMG, 2014 WL 7369514, at *6-7 (D.S.C. Dec. 29, 2014) (finding that a treating physician's medical opinion dated three months after the ALJ's decision met the Bird standard and thus it was error for the Appeals Council not to consider it); Dickerson v. Colvin, C/A No. 5:12-CV-33-DCN, 2013 WL 4434381, at *14 (D.S.C. Aug. 14, 2013) (holding that a medical opinion dated more than a year after the ALJ's decision was new and material evidence that warranted remand).
Here, two opinions of treating physician Dr. Shallcross are at issue. In the first, which is included in a treatment note dated November 18, 2014, Dr. Shallcross stated as follows:
The patient is not likely a good candidate for return to the workplace. I do not think she could do anything in a job in which she would need to be on her feet or carrying and I do not think she could stand sitting in an upright position for 8 hours a day. I recommend increasing Nucynta to 200 mg twice a day and I will fill out her Social Security Disability forms.(Tr. 496-97). In the RFC assessment, the ALJ referred to medical records showing the plaintiff's treatment at Upstate Medical Rehab in 2014 and 2015 for back, knee, and hip pain (Tr. 123 (citing Exhibit 14F)), but Dr. Shallcross' November 2014 opinion was not mentioned.
In the second opinion, which is dated August 24, 2016, and which the plaintiff timely submitted to the Appeals Council, Dr. Shallcross summarized his treatment of the plaintiff and opined that, consistent with her condition, she would be limited to no more than sedentary work and had been so limited since "at least throughout the time period [he had] treated her" (doc. 17-1 at 3). As set out above, in its order denying review, the Appeals Council stated: (1) additional evidence that was "listed on the enclosed [o]rder" had been considered, and those exhibits were made a part of the administrative record; and (2) other medical records, which were specifically identified, had also been considered, but that evidence was "about a later time" and did not affect the decision about whether the plaintiff was disabled on or before February 2, 2016 (Tr. 2, 6). The Appeals Council did not mention Dr. Shallcross' August 2016 opinion, and it was not made a part of the administrative record.
The opinion evidence considered by the ALJ consisted of consultative examiner Dr. Hannah's findings and the opinions of the state agency evaluators (Tr. 126-27), which clearly conflict with the opinions of Dr. Shallcross. Moreover, while the Appeals Council was not required to explain its rationale for denying review, here, the Appeals Council affirmatively listed the evidence it did consider, and it did not mention Dr. Shallcross' second opinion. The opinions here are the only treating physician opinions of record. No fact finder has made any findings as to either of these opinions nor has any fact finder attempted to reconcile the opinions with the conflicting and supporting evidence. As in Meyer, the court cannot determine whether substantial evidence supports the ALJ's denial of benefits. Accordingly, the case should be remanded for consideration of these opinions.
In Wise v. Colvin, the Honorable Richard M. Gergel, United States District Judge, found that the Appeals Council erred in failing to make a timely-submitted treating physician's opinion part of the record and it was thus proper for the court to consider the opinion. 2014 WL 7369514, at *7. Likewise, here, consideration of Dr. Shallcross' second opinion is appropriate, and, upon remand, the opinion should be made part of the administrative record (see doc. 17-1). --------
CONCLUSION AND RECOMMENDATION
Now, therefore, based on the foregoing, it is recommended that the Commissioner's decision be reversed pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be remanded to the Commissioner for further consideration as discussed above.
IT IS SO RECOMMENDED.
s/ Kevin F. McDonald
United States Magistrate Judge January 25, 2018
Greenville, South Carolina