Opinion
5:22-CV-00504-FL
02-15-2024
TRACY YELVERTON, Plaintiff, v. MARTIN O'MALLEY Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
BRIAN S. MEYERS, UNITED STATES MAGISTRATE JUDGE
This matter is before the court on the parties' cross-filings for judgment in their favor [DE-13, -20]. Plaintiff Tracy Yelverton (“Plaintiff” or, in context, “Claimant”) filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of his application for a period of disability and disability insurance benefits (“DIB”). Defendant submitted memoranda in support of his motion. [DE-21]. The time for filing responsive briefs has expired and the pending motions are ripe for adjudication. This matter was referred to the undersigned magistrate judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1). Having carefully reviewed the administrative record and the parties' filings, it is recommended that Plaintiff's brief [DE-13] be allowed, Defendant's motion for judgment on the pleadings [DE-20] be denied, and the case be remanded to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.
I. STATEMENT OF THE CASE
Plaintiff protectively filed an application for a period of disability and DIB on May 7, 2020, alleging disability beginning June 28, 2018. Transcript of Proceedings (“Tr.”) 83, 203-04. His claim was denied initially. Tr. 61-83, 102-10. Plaintiff filed a request for reconsideration (Tr. 111), and was denied upon reconsideration on September 29, 2021 (Tr. 84-95, 112-21). On October 5, 2021, Plaintiff requested a hearing before the Administrative Law Judge (“ALJ”). Tr. 123-24. A hearing before the ALJ was held on March 2, 2022, at which Plaintiff, represented by counsel, and a vocational expert (“VE”) appeared and testified. Tr. 34-60. On March 28, 2022, the ALJ issued a decision denying Plaintiff's request for benefits. Tr. 9-33.
On April 21, 2022, Plaintiff requested a review of the ALJ's decision by the Appeals Council. Tr. 197-99. On October 24, 2022, the Appeals Council denied Plaintiff's request for review. Tr. 1-6. Plaintiff then filed a complaint in this court seeking review of the now-final administrative decision.
II. STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act (“Act”), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). “The findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive ....” 42 U.S.C. § 405(g). Substantial evidence is
“evidence which a reasoning mind would accept as sufficient to support a particular conclusion.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a “large or considerable amount of evidence,” Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is “more than a mere scintilla . . . and somewhat less than a preponderance.” Laws, 368 F.2d at 642. “In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the “substantial evidence” inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997). “Judicial review of an administrative decision is impossible without an adequate explanation of that decision by the administrator.” DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. § 404.1520 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in “substantial gainful activity [“SGA”],” i.e., currently working; and (2) must have a “severe” impairment that (3) meets or exceeds [in severity] the “listings” of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity [“RFC”] to (4) perform . . . past work or (5) any other work.Albright v. Comm'r of the Soc. Sec. Admin., 174 F.3d 473, 475 n.2 (4th Cir. 1999). “If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps.” Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the “special technique” described in 20 C.F.R. §§ 404.1520a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. Id. § 404.1520a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the “special technique.” Id. § 404.1520a(e)(4).
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Plaintiff “not disabled” as defined in the Act. Tr. 28-29. At step one, the ALJ determined Plaintiff had not engaged in substantial gainful employment since June 28, 2018, the alleged onset date. Tr. 15
Next, at step two, the ALJ determined Plaintiff had the following severe impairments: knee osteoarthritis; gout; depression and anxiety. Tr. 15. However, at step three, the ALJ concluded these impairments both physical and mental, were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 15. Applying the technique prescribed by the regulations, the ALJ found that Plaintiff's mental impairments have resulted in mild limitation in understanding, remembering, or applying information; mild limitation in interacting with others; moderate limitation in concentrating, persisting, or maintaining pace; and moderate limitation in adapting or managing oneself. Tr. 16-17.
Prior to proceeding to step four, the ALJ assessed Plaintiff's RFC, finding Plaintiff had the ability to perform less than the full range of light work with the following limitations:
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires.
He can lift, carry, push, and pull 20 pounds occasionally and 10 pounds frequently; stand and walk in combination six hours in an eight-hour workday; sit six hours in an eight-hour workday; occasionally use the lower extremities to operate foot controls; frequently climb ramps and stairs; never climb ladders, ropes, or scaffolds; and occasionally stoop, kneel, crouch, and crawl. He can perform simple, routine, repetitive tasks but not at a production rate pace. He can make simple work-related decisions.
Tr. 17.
In making this assessment, the ALJ found Plaintiff's statements about his limitations not entirely consistent with the medical evidence and other evidence in the record. Tr. 18.
At step four, the ALJ concluded Plaintiff did not have the RFC to perform the requirements of his past relevant work as a transformer assembler, transformer service repair technician, and mold operator. Tr. 27. Nonetheless, at step five, upon considering Plaintiff's age, education, work experience, and RFC, the ALJ determined Plaintiff is capable of making an adjustment to other work that exists in significant numbers in the national economy. Tr. 28.
V. OVERVIEW OF PLAINTIFF'S CONTENTIONS
In this case, Plaintiff alleges the ALJ erred by: (1) failing to perform a proper function by function evaluation of Plaintiff's ability to sit, stand, and walk when formulating the RFC; and (2) failing to properly evaluate the medical opinion evidence from Dr. Christopher Barsanti (“Dr. a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If an individual can perform light work, he or she can also perform sedentary work, unless there are additional limiting factors such as the loss of fine dexterity or the inability to sit for long periods of time.” 20 C.F.R. § 404.1567(b).
“Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.” 20 C.F.R. § 404.1567(a); S.S.R. 96-9p, 1996 WL 374185, at *3 (July 2, 1996). “Occasionally” generally totals no more than about 2 hours of an 8-hour workday. S.S.R. 96-9p, 1996 WL 374185, at *3. “Sitting” generally totals about 6 hours of an 8-hour workday. Id. A full range of sedentary work includes all or substantially all of the approximately 200 unskilled sedentary occupations administratively noticed in 20 C.F.R. Part 404, Subpart P, Appendix 2, Table 1. Id. Barsanti”), Plaintiff's surgeon and treating physician. Pl.'s brief [DE-13] at 1. Each will be discussed below.
Except for citations to the Transcript of Proceedings (“Tr.”), all citations to documents using the docket entry number [DE-] provided in the court's docket will specify the page number automatically assigned by the CM/ECF system, rather than the page number, if any, specified in the original document.
VI. DISCUSSION
A. Evaluation of Plaintiff's ability to sit, stand, and walk
Plaintiff contends that the ALJ erred by failing to perform a proper function by function evaluation of Plaintiff's ability to sit, stand, and walk when formulating the RFC. Pl.'s brief. [DE-13] at 1. The court agrees.
While there is no “per se rule requiring remand when the ALJ does not perform an explicit function-by-function analysis[,]” remand is warranted where the ALJ fails to assess a “contested” function that is “critically relevant to determining [a claimant's] disability status ....”). Dowling v. Comm'r of Soc. Sec. Admin., 986 F.3d 377, 388-89 (4th Cir. 2021). This court has also found that “[r]emand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review.” See McNeill v. Saul, No. 5:20-CV-244-M, 2021 WL 3701348, at *3 (E.D. N.C. June 2, 2021) (alterations in original) (quoting Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015)).
Plaintiff testified at his oral hearing that he could only stand for about fifteen-to-twenty minutes at a time, and that if he stands longer, he will experience pain. Tr. 44. He also testified that he could sit for only about ten-to-fifteen minutes and that he has the same limitations with walking before his knees began to hurt. Tr. 46. One of the practical implications of this limitation is that Plaintiff does not shop for groceries because it is too much walking. Tr. 50. Moreover, while Plaintiff does drive locally, he explained that his knees begin to hurt on “longer drives” of 20 minutes or more. Tr. 39-40. While he does some chores at his home including “wash[ing] a few dishes” and “vacuum[ing] some,” he notes that he lives in a small house and such tasks do not take long. Tr. 49. While Plaintiff never has a pain-free day, he testified that he uses ice and medication to manage the pain. Tr. 47.
Plaintiff also explained that his gout flares about once a month and generally takes between seven and ten days to resolve. Tr. 46, 48. Plaintiff experienced such gout flares while he was still working, but noted that during such flares, “he couldn't work at all [and . . .] would have to stay at the hotel.” Tr. 53.
As noted above, the ALJ found that Plaintiff could perform “less than the full range of light work . . . [but could] stand and walk in combination six hours in an eight-hour workday [and could] sit six hours in an eight-hour workday.” Tr. 17. The ALJ found that Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms; [but that Plaintiff's] statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in [her] decision.” Tr. 18.
Despite two knee surgeries in August 2018 (Tr. 367) and September 2019 (Tr. 395-97), respectively, Plaintiff's medical records consistently document complaints of pain and discomfort in his knees and feet. See Tr. 475 (complaining of knee pain on July 2, 2018); Tr. 371 (noting pain while walking on September 19, 2018); Tr. 493 (reporting in PT evaluation on December 12, 2018, that pain that grew worse with walking, negotiating obstacles, and remaining standing); Tr. 508 7 09 (walking with a noticeable limp and reporting pain at a PT evaluation on January 2, 2019); Tr. 517 (reporting on January 18, 2019, that he was in constant pain and that standing long periods of time or bending were problematic for him), Tr. 545 (noting pain with left knee extension on March 14, 2019); Tr. 448 (reporting pain and popping with the left knee and mild discomfort with knee flexion on April 22, 2019); Tr. 454 (recording left knee pain and swelling on August 7, 2019); Tr. 427 (complaining of pain that was worse with sitting, standing, or walking and remaining in prolonged positions on September 26, 2019); Tr. 440 (complaining of pain and difficulties with his daily activities on October 15, 2019); Tr. 675 (complaining about pain that is made worse with standing or walking on January 31, 2021).
Various medical records assessed Plaintiff to have limitations in his ability to stand, walk, or sit. See Tr. 571 (Dr. Ali-Eltom indicating that Plaintiff could sit normally with breaks but would need a break after 60 minutes of standing due to his right knee pain); Tr. 427 (physical therapy (“PT”) notes from September 26, 2019, documenting “Modifying factors: Worse: sitting, standing, walking, prolonged positions”).
The undersigned notes that the ALJ found Dr. Ali-Eltom's opinion not persuasive with respect to Plaintiff's need to “sit/stand [as it] vague [and] the length of the break is not quantified.” Tr. 27. However, Dr. Ali-Eltom's findings nevertheless support Plaintiff subjective statements regarding his inability to stand for extended durations, and the ALJ did not provide any analysis on why she found that Plaintiff was able to stand and walk in combination for six hours every workday.
The tension between the lack of limitations in the RFC with respect to standing, walking, and sitting on the one hand and Plaintiff's subjective limitations and certain medical evidence on the other hand, indicate that Plaintiff's ability to stand, walk and sit without interruption is a contested function. See Dowling v. Comm'r of Soc. Sec. Admin., 986 F.3d 377, 389 (4th Cir. 2021) (“The parties disagree over the extent that Appellant's medical conditions restricted her ability to sit, which makes that function ‘contested[,' and . . .] assessing Appellant's ability to sit is critically relevant to determining her disability status, as [it could preclude work at the sedentary exertional levels.]”). The duration for which Plaintiff could stand, walk, or sit, is relevant to determining Plaintiff's disability status because the VE testified that changing positions between sitting and standing more than four times per hour could be work preclusive. Tr. 59.
Plaintiff alleges that the ALJ erred by not explaining how long Plaintiff could sit, stand, or walk at one time or indicate how far Plaintiff would be able to walk at one time. Pl's brief [DE-13] at 10. The RFC assessed by the ALJ provides that Plaintiff can sit or, stand and walk in combination for up to six hours at a time. See Tr. 17. The ALJ does not provide an explanation regarding how this duration accounts for the contested functions, or in the alternative, why additional limitation is not necessary. Cf. Holland v. Comm'r, Soc. Sec. Admin., No. CV ADC-171874, 2018 WL 1970745, at *10 (D. Md. Apr. 25, 2018) (“The ALJ, however, failed to explain how her factual findings translate into a finding that Plaintiff would be ‘off-task less than 15% of the day.'”).
The ALJ's findings on Plaintiff's ability to stand and walk in combination, or sit each for up to six hours per day appear to be based on her assessment that “the medical evidence of record is not entirely consistent with the alleged loss of functioning” and that “[a]lthough [Plaintiff] complains of ongoing knee pain, and he was noted to have an antalgic gait at his consultative physical exam in January 2021, he had 5/5 strength in the bilateral lower extremities . . . [and] his gait was normal at physician appointments in August 2021 and February 2022.” Tr. 23. The ALJ additionally noted that Plaintiff's treatment was “conservative” and consisted of injections and pain medication. Id.
The ALJ does not explain how findings of full strength or even intermittent findings of normal gait discount Plaintiff's statements that he was limited by pain after walking, standing, or sitting for a certain duration. See Kristy S. v. Kijakazi, No. 21 C 6230, 2023 WL 2631616, at *4 (N.D. Ill. Mar. 24, 2023) (“The ALJ did not explain how [the claimant's] normal gait, coordination, and motor strength are evidence that she does not need breaks or other accommodations.”). The Fourth Circuit has recently held that if a claimant's “medically determinable impairment(s) . . . could reasonably be expected to produce [Plaintiff's] symptoms,” 28 C.F.R. § 1529(c), a claimant may “rely exclusively on subjective evidence to prove that his symptoms [are] so continuous and/or severe that they prevented him from working.” Oakes v. Kijakazi, 70 F.4th 207, 215 (4th Cir. 2023) (second alteration in original) (quoting Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 96 (4th Cir. 2020). The Fourth Circuit went on to note that “[s]eparate and apart from his literal mobility, [Plaintiff] can qualify for benefits if he is in sufficient pain [and t]he ALJ failed to meaningfully address this theory of qualification such that this Court may engage in judicial review.” Id. at 216.
It is important to note that the ALJ issued her decision on March 28, 2022, and the Appeals Council denied review on October 24, 2022, each prior to the Fourth Circuit's decision in Oakes, 70 F.4th 207, on June 7, 2023. Accordingly, the ALJ and the Appeals Council could not have applied the findings in Oakes when deciding this case in the first instance.
Accordingly, while contradictory medical or other evidence may discredit Plaintiff's subjective statements regarding the limiting effects of his pain, a mere absence of medical evidence cannot. See Shelley C. v. Comm'r of Soc. Sec. Admin., 61 F.4th 341, 360 (4th Cir. 2023)(“[B]ecause pain is subjective [it] cannot always be confirmed by objective indicia[.]”) (alteration in original) (quoting Craig, 76 F.3d at 595); see also Hines v. Barnhart, 453 F.3d 559, 565 (4th Cir. 2006) (“Having met his threshold obligation of showing by objective medical evidence a condition reasonably likely to cause the pain claimed, [the claimant] was entitled to rely exclusively on subjective evidence to prove the second part of the test, i.e., that his pain is so continuous and/or so severe that it prevents him from working a full eight hour day.”).
As with the Oakes case, the ALJ's decision and the Appeals Council's denial of review were each issued prior to the Fourth Circuit's decision in Shelley C. v. Comm'r of Soc. Sec. Admin., 61 F.4th 341, 2023 WL 2147306 (4th Cir. 2023) on February 22, 2023. Accordingly, the ALJ and the Appeals Council could not have applied the findings in Shelley C. when deciding this case in the first instance.
Furthermore, while the ALJ considered injections and pain medication to be “conservative” treatment (Tr. 23), the ALJ fails to consider that rest and ice were parts of Plaintiff's pain management treatment plan, in that she does not provide an accommodation in the RFC or otherwise discuss why it is not warranted. See Tr. 482 (Salina Regional Health Center noting that “restricted activity, ice, compression and elevation can be helpful”); Tr. 427 (PT notes from September 26, 2019, documenting “Modifying factors: Better: medication, rest, ice) (emphasis added); Tr. 493 (PT notes from December 12, 2018, documenting rest, ice and knee sleeve as restrictions and pain alleviators) (emphasis added); Tr. 417 (PT notes from February 18, 2020, documenting that Plaintiff “feels better in the morning, ice, ibuprofen, rest) (emphasis added); Tr. 667 (UNC Health Notes from October 18, 2021, noting that Plaintiff can use some ice on the knee if it swells up throughout the day.”) (emphasis added). While the ALJ references ice as a treatment for Plaintiff's pain and swelling (Tr. 18, 21) she does not discuss how Plaintiff would accommodate his need for rest or ice during a standard workday or why such treatment would not be necessary.
The undersigned notes an isolated reference in the medical records to Plaintiff not having used ice at the time of the UNC Orthopaedics medical appointment. Tr. 576. However, the same record notes that Plaintiff “can use ice and anti-inflammatories as needed for persistent pain.” Tr. 576. While the ALJ is certainly entitled to reference instances of non-compliance with treatment recommendations, the ALJ does not include any such discussion with respect to Plaintiff's need to ice in her decision.
In sum, the ALJ failed to consider whether independent from Plaintiff's mobility and strength, pain qualified him for disability and failed to “build an accurate and logical bridge from the evidence to [her apparent] conclusion” that Plaintiff could stand and walk in combination, or sit each for up to six hours at one time and that he did not need rest and ice to accommodate his pain. Monroe, 826 F.3d at 189 (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)). Accordingly, the undersigned RECOMMENDS that this case be remanded to the Commissioner for further proceedings. On remand, the Commissioner should consider Plaintiff's limitations with respect to standing, walking, and sitting under applicable regulations and case law including Oakes and Shelley C. To be clear, the undersigned expresses no opinion on what limitations may or may not be appropriate given Plaintiff's impairments. It will be incumbent on the ALJ to consider all of the evidence before her, to explain her findings accordingly, and to determine whether modifications to the RFC, if any, are necessary.
B. Evaluation of opinion evidence.
Plaintiff next contends that the ALJ erred by failing to properly evaluate the medical opinion evidence from Dr. Barsanti, Plaintiff's surgeon and treating physician. Pl.'s brief. [DE-13] at 1. Specifically, Plaintiff argues that the “ALJ does not provide an adequate and valid explanation for finding this opinion to be less than persuasive and does not address the criteria laid out in the new regulations.” Id. at 14.
Under 20 C.F.R. § 404.1520c, for claims filed on or after March 27, 2017, the SSA “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from [the claimant's] medical sources.” 20 C.F.R. § 404.1520c(a). Instead, the regulation provides five factors for evaluating the persuasiveness of medical opinions and prior administrative medical findings, the five factors being: “(1) Supportability . . . (2) Consistency . . . (3) Relationship with the claimant . . . (4) Specialization . . . [and] (5) Other factors . . . that tend to support or contradict a medical opinion or prior administrative finding.” Id. §§ 404.1520c(c)(1)-(5). The regulation specifies that supportability and consistency are the most important factors in the evaluation. Id. § 404.1520c(a).
The ALJ considered various medical records and opinions that Dr. Barsanti provided in 2018 and 2019, including that Plaintiff “could not work at this time”; “could not work until after surgery”; could not work or was excused from work for a specific duration; and could only perform light duty with certain additional limitations for a specific duration. Tr. 25. The ALJ found such opinions unpersuasive because while they “may be supported by an assessment of [Plaintiff's] functioning at the time, they are short-term in nature, and do not represent an assessment of [Plaintiff's] long-term functioning based on the longitudinal record. Id.
The ALJ also evaluated Dr. Barsanti's October 11, 2019 opinion, that Plaintiff could “perform sedentary work, [had] ¶ 20 percent impairment rating for his left knee [and required a permanent restriction of] . . . light duty with sitting work only.” Id. (citing Tr. 399-400). The ALJ found this opinion unpersuasive because it was “not clear if the term ‘light duty' is used in a vocationally relevant sense, as ‘sitting work only' is commensurate with sedentary, not light work [and] the 20 percent impairment rating does not reflect the function-by-function assessment required by the Social Security Administration.” Id.
On March 2, 2020, Dr. Barsanti, noted that he assessed Plaintiff to have “a 10% impairment rating for the meniscectomy” and prescribed “no stooping, squatting, climbing heights or prolonged walking or standing.” Id. (citing Tr. 404). In the corresponding medical absence report, Dr. Barsanti also limited Plaintiff to light duty with a “[l]ifting/carrying limit of 68 pounds”; “no bending, stooping, or squatting”; “no crawling without knee pads, limited repetitive squatting, kneeling and ladder climbing, [and] occasional walking or standing[.]” Tr. 405.
The ALJ found this opinion unpersuasive because it was “internally inconsistent, as the ability to lift/carry up to 68 pounds seems inconsistent with the limitations of ‘no stooping, bending, squatting' [and] a limitation to ‘limited repetitive squatting' is inconsistent with ‘no squatting.'” Tr. 25. Additionally, the ALJ notes that “‘occasional' walking/standing is not defined [and] the 20 percent impairment rating . . . does not reflect the function-by-function assessment required by the Social Security Administration.” Id.
Plaintiff contends that there is no internal inconsistency in Dr. Barsanti's opinions. Plaintiff asserts that Dr. Barsanti simply found on October 11, 2019, that Plaintiff should be kept at sedentary work, while on March 2, 2020, he assessed a limited to a range of light duty with additional restrictions, including only occasional walking and standing. Pl.'s brief [DE-13] at 14.
The forms Dr. Barsanti used in his assessment were not based on the exertional or impairment categories utilized by the SSA, but nonetheless clearly indicate that he was limiting Plaintiff to work that is performed in a seated position on October 11, 2019. Tr. 399-400 (providing work restriction categories as “Full duty with no restrictions,” “No work at this time” and “Light duty with the following restriction as indicated”). While the ALJ is not required to adopt impairment ratings or work restriction categories that were not designed within the SSA definitional framework, this alone should not disqualify all medical findings in the relevant medical opinion, especially with respect to postural limitations such as “sitting work only,” which do appear to be relevant to the function-by-function assessment required by the SSA. Accordingly, the does not find that this specific by the ALJ is supported by substantial evidence.
However, Plaintiff's argument does not address the other inconsistencies the ALJ discusses, including with respect to (1) Dr. Barsanti's findings that Plaintiff could lift up to 68 pounds but could not stoop, bend or squat, as well as (2) his finding that Plaintiff could perform “limited repetitive squatting” while at the same time limiting Plaintiff to “no squatting”. See Tr. 405. Under 20 C.F.R. § 404.1520c, the ALJ is entitled to find opinions unpersuasive based on inconsistencies they contain.
In light of the above recommendation that this case be remanded for further proceedings and explanation regarding the evaluation of Plaintiff's ability to stand, walk, and sit, including limitations caused by pain, the undersigned does not make a recommendation on whether the remaining inconsistencies identified by the ALJ independently constitute substantial evidence to affirm the Commissioner's decision. On remand, however, the Commissioner should consider Plaintiff's argument here, and ensure that all medical opinion evidence is evaluated in accordance with the relevant law and regulations, and that the findings are fully explained, so as to permit meaningful review by the court if necessary. It is, of course, up to the Commissioner to determine what weight to give all evidence.
VII. CONCLUSION
For the reasons stated above, IT IS RECOMMENDED that Plaintiff's brief [DE-13] be ALLOWED, Defendant's Motion for Judgment on the Pleadings [DE-20] be DENIED, and the case be REMANDED to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until February 27, 2024 to file written objections to this Memorandum and Recommendation. The presiding district judge must conduct her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed by the earlier of 14 days of the filing of the objections or March 7, 2024.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985).