W. CARLETON METCALF, Magistrate Judge.
This matter is before the Court on the parties' cross motions for summary judgment (Docs. 9, 11), which have been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B). Following a review of the record, the parties' briefs, and relevant legal authority, the undersigned respectfully recommends that Plaintiff's motion for summary judgment be granted and the Commissioner's motion for summary judgment be denied.
On January 24, 2014, Plaintiff Billie S. Fredell ("Plaintiff") filed an application for disability insurance benefits. Transcript of Administrative Record ("AR"), p. 243. Plaintiff's claim was initially denied on June 16, 2014, and subsequently upon reconsideration. AR pp. 89 & 111. Plaintiff thereafter filed a written request for a hearing and a hearing was held on August 23, 2017, in Charlotte, North Carolina, where Plaintiff appeared and testified. AR pp. 42-71.
On September 19, 2017, the Administrative Law Judge ("ALJ") issued an unfavorable decision. AR pp. 19-35. The Appeals Council denied Plaintiff's request for review of that decision on August 21, 2018. AR pp. 1-6.
On October 18, 2018, Plaintiff filed the instant action.
A claimant has the burden of proving that he or she suffers from a disability, which is defined as a medically determinable physical or mental impairment lasting at least 12 months that prevents the claimant from engaging in substantial gainful activity. 20 C.F.R. §§ 404.1505; 416.905. The regulations require the Commissioner to apply a five-step sequential evaluation to each claim for benefits. 20 C.F.R. §§ 404.1520; 416.920. In this process, the Commissioner considers each of the following: (1) whether the claimant has engaged in substantial gainful employment; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment is sufficiently severe to meet or exceed the severity of one or more of the impairments listed in Appendix I of 20 C.F.R. Part 404, Subpart P; (4) whether the claimant can perform his or her past relevant work; and (5) whether the claimant is able to perform any other work considering his or her age, education, and residual functional capacity ("RFC"). 20 C.F.R. §§ 404.1520, 416.920;
The burden rests upon the claimant throughout the first four steps of this five-step process to prove disability.
The ALJ determined that Plaintiff had the severe impairments of "degenerative disc disease; obesity; osteoarthritis of the knees; mood disorder; and anxiety disorder." AR p. 24. The ALJ further found that Plaintiff had the RFC to
perform light work as defined in 20 CFR 404.1567(b) except she was limited to frequent postural limitations in all postural spheres, no more than frequent overhead reaching bilaterally, was capable of performing simple, routine, and repetitive tasks for two-hour intervals throughout the day for the duration of the workday, and was limited to no concentrated exposure to cold, wetness, or hazards such as moving machinery or unprotected heights. She was further restricted to a stable work environment, one that does not have frequent changes.
Utilizing this RFC, the ALJ found that Plaintiff was unable to perform her past relevant work, but that Plaintiff could perform other work, including the representative occupations of electronics worker, laundry folder, and hand packager, such that Plaintiff was not disabled from November 19, 2015 (Plaintiff's amended alleged disability onset date) through March 31, 2016 (the date Plaintiff was last insured). AR pp. 33-34.
Under 42 U.S.C. § 405(g), judicial review of a final decision of the Commissioner denying disability benefits is limited to two inquiries: (1) whether substantial evidence exists in the record as a whole to support the Commissioner's findings, and (2) whether the Commissioner's final decision applied the proper legal standards.
When a federal district court reviews the Commissioner's decision, it does not "re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the Secretary."
Plaintiff raises four issues in her Motion for Summary Judgment. First, Plaintiff argues that the ALJ failed to identify and resolve apparent conflicts between the testimony of the vocational expert ("VE") and the descriptions of the representative occupations. Second and third, Plaintiff argues that the ALJ failed to weigh certain limitations in connection with a functional capacities exam ("FCE") and as subsequently referenced by one of her treating physicians. Fourth, Plaintiff argues that the RFC developed by the ALJ is not supported by substantial evidence because the ALJ failed to conduct "a proper function-by-function analysis" of Plaintiff's impairments and failed to provide "a logical bridge" between the evidence in the administrative record and the RFC.
The Dictionary of Occupational Titles ("DOT") and its companion publication, Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles ("SCO") "are Social Security Administration resources that list occupations existing in the economy and explain some of the physical and mental requirements of those occupations."
Here, the VE identified the representative occupations of electronics worker, laundry folder, and hand packager. Plaintiff contends, however, that the jobs of laundry folder and electronics worker are inconsistent with limitations recognized by the ALJ, and that there is a conflict between all three representative occupations and Plaintiff's reasoning ability.
Plaintiff argues that because "the job of Folder involves the constant presence of Wet and/or Humid environmental conditions," it conflicts with the RFC limitation that Plaintiff have "no concentrated exposure" to cold or wetness. Doc. 10, p. 8. Plaintiff further argues that "the job of Electronics Worker involves occasional exposure to toxic, caustic chemicals" and that such exposure conflicts with her RFC which indicates she should have "no concentrated exposure" to "hazards such as moving machinery or unprotected heights."
With respect to Plaintiff's argument regarding exposure to cold or wetness, the Commissioner recognizes that "the DOT description admittedly lists constant exposure to humidity/wetness...," Doc. 12, p. 8, and the undersigned agrees that this description appears to raise a conflict with the RFC limitation of "no concentrated exposure to ... wetness...." However, the ALJ's failure to resolve this apparent conflict was harmless error. The representative occupations of electronics worker (for which the VE testified there are 10,000 jobs nationally) and hand packager (for which the VE testified there are 84,000 jobs nationally) remain available and since Plaintiff "can perform at least one job that exists in significant numbers in the national economy, the ALJ properly concluded that Plaintiff is not disabled under the Act."
Next, the undersigned is not persuaded by Plaintiff's argument that the RFC limitation of "no concentrated exposure to ... hazards such as moving machinery or unprotected heights" includes a prohibition against concentrated exposure to toxic, caustic chemicals. The RFC states that Plaintiff is "limited to no concentrated exposure to ... hazards such as moving machinery or unprotected heights." Emphasis added. This phrasing does not indicate that the "hazards" referred to by the ALJ were meant to include all possible dangers or conditions in any work setting but instead are limited to the types of physical, industrial hazards in the class of "moving machinery or unprotected heights."
"The DOT's Reasoning Development scale has six levels: Level 1 requires the least reasoning ability, and Level 6 requires the most reasoning ability."
Plaintiff argues that the reasoning requirements of the three representative occupations "exceed the ALJ's limitations which limit Ms. Fredell to the performance of simple, routine and repetitive tasks in a stable work environment with few changes." Doc. 10, p. 9. Thus, Plaintiff contends "there is an apparent conflict between the ALJ's conclusion that she is limited to simple, routine and repetitive tasks" and jobs requiring Level 2 reasoning ability.
However, Plaintiff's argument — that an RFC limitation to "simple, routine, and repetitive tasks" is in conflict the ability "to carry out detailed but uninvolved written or oral instructions" — has been rejected.
Accordingly, the undersigned does not find there to be a conflict between the VE's testimony and the descriptions of the representative occupations.
Next, Plaintiff argues that the ALJ failed to weigh properly certain limitations that were found in a February 3, 2012 FCE and subsequently referenced in the treatment notes of Dr. Ralph J. Maxy ("Dr. Maxy").
The administrative record indicates that Plaintiff was treated by Dr. Maxy, an orthopedic surgeon, from November 2010 through at least May 2017.
On January 1, 2012, Dr. Maxy noted that, since an MRI of Plaintiff's right hip had been denied by Plaintiff's workers' compensation carrier, there [was] very little else [he] c[ould] offer in terms of treatment." He therefore "recommended an FCE to determine if she ha[d] any long-term restrictions...." AR p. 691.
The FCE (AR pp. 454-456) was conducted on February 3, 2012 by a physical therapist and found Plaintiff to be "capable of sustaining the
In a February 21, 2012 note, Dr. Maxy stated that "[t]he [FCE] shows [Plaintiff] is able to function safely at the light physical demand level." AR p. 684. Dr. Maxy additionally noted that "[w]e have used the study to give [Plaintiff] the following permanent restrictions, no lifting heavier than 20 pounds. She should also avoid repetitive bending, twisting, or stooping. She should be able to stand or sit as tolerated. She should avoid any overhead work and also avoid any work while in the forward bent position as all of these will exacerbate symptoms significantly."
On June 1, 2012, Dr. Maxy again stated:
AR p. 710.
On August 25, 2015, almost three months prior to Plaintiff's alleged disability onset date of November 19, 2015, Dr. Maxy implanted a spinal cord stimulator. AR pp. 1059-1060.
During a follow-up appointment on January 19, 2016, Dr. Maxy noted that "her back pain has improved significantly from the device, however, she still has right heel and right lower extremity symptoms that are not helped." AR p. 969. Dr. Maxy "released" Plaintiff on that date because, "[f]rom a surgical perspective, there is very little else we can add."
"A treating physician is a physician who has observed the plaintiff's condition over a prolonged period of time."
According to the Social Security Regulations, an ALJ "is required to give `controlling weight' to opinions proffered by a claimant's treating physicians so long as the opinion is `well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the claimant's] case record."
In this case, Plaintiff argues that the ALJ failed to consider "the February and June 2012 medical opinions and permanent physical restrictions issued by her longtime treating orthopedic specialist, Dr. Maxy." Doc. 10 at 12.
Defendant disagrees and contends that Dr. Maxy's notes in February and June 2012 were not his "opinions" but were solely based on the FCE that had been performed by a physical therapist at Dr. Maxy's request. Doc. 12 at 12-13.
Whether Dr. Maxy's incorporation of the specific physical limitations set forth in the FCE should be considered to be a treating physician's opinion that is potentially entitled to controlling weight is a close question.
The FCE was performed during a one-time evaluation conducted by a physical therapist well prior to both Plaintiff's amended alleged onset date and the implantation of the spinal cord stimulator. Yet, Dr. Maxy "used" the FCE to impose specific physical restrictions on Plaintiff, AR p. 684, and Dr. Maxy continued those physical restrictions after implantation of the spinal cord stimulator and despite his recognition that Plaintiff's back pain was helped significantly by the stimulator. AR p. 969. Considering Dr. Maxy's longitudinal pattern of care, his adoption of the FCE limitations into his treatment notes, and the expression of those limitations as his own, the undersigned is persuaded that the specific physical limitations should be considered part of Dr. Maxy's medical opinion.
In his decision, the ALJ referenced Dr. Maxy's treatment notes. AR p. 29.
Additionally, the ALJ discussed the FCE and "gave some weight" to its indication that Plaintiff "could perform light work," a finding the ALJ stated was "fairly consistent with the longitudinal records that include fairly minimal objective findings and document fairly good pain control with medication." AR pp. 31-32. The ALJ did not give the findings from the FCE greater weight because it was performed several years prior to the time period at issue and prior to the implantation of the spinal cord stimulator. AR pp. 31-32.
Likewise, the ALJ concluded that Plaintiff reported significant pain relief and the need for less pain medication following implantation of the spinal cord stimulator, a conclusion the undersigned finds to be supported by substantial evidence.
The ALJ's decision, however, does not indicate whether the ALJ considered Dr. Maxy's treatment notes to be Dr. Maxy's "opinion" evidence and does not describe how much weight the ALJ gave to that information.
In addition, the ALJ's analysis does not discuss how the ALJ viewed the fact that Dr. Maxy continued to impose the limitations set out in the February 3, 2012 FCE after the spinal cord stimulator had been implanted. That is, while the FCE (as well as Dr. Maxy's February and June 2012 treatment notes) pre-date implantation of the spinal cord stimulator, Dr. Maxy explicitly stated after implantation of the spinal cord stimulator that there was no change in Plaintiff's physical restrictions even while recognizing that Plaintiff's "back pain has improved significantly from the device..." AR p. 969.
The opinion of Dr. Maxy, as Plaintiff's treating physician, "is entitled to controlling weight unless the ALJ finds his opinion to either be not `well-supported' by appropriate techniques or inconsistent with the rest of the medical record."
On the current record, however, the undersigned is unable to determine whether Dr. Maxy's opinions have been fully considered and, therefore, remand will be recommended on this basis.
Because the undersigned recommends remand based on the ALJ's treatment of Dr. Maxy's records, it is not necessary to reach Plaintiff's last argument that "[t]he ALJ failed to conduct a proper function-by-function analysis of Ms. Fredell's impairment ... and provide a logical bridge between the evidence in the record and his RFC conclusions." Doc. 10, pp. 15-16.
However, in the event the recommendation regarding the treatment of Dr. Maxy's opinions is not adopted, the undersigned is not persuaded by Plaintiff's final argument. A "function-by-function" analysis was conducted by the state agency consultants,
Here, in developing Plaintiff's RFC, the ALJ assigned "some weight" to the state agency consultants' opinions, AR p. 32, and the physical limitations set out in Plaintiff's RFC — that Plaintiff is capable of light work "except she [is] limited to frequent postural limitations in all postural spheres, no more than frequent overhead reaching bilaterally..." — comport with the state agency consultants' proposed limitations.
Considering the foregoing, the undersigned
The parties are hereby advised that, pursuant to Title 28, United States Code, Section 636(b)(1)(C), and Federal Rule of Civil Procedure 72(b)(2), written objections to the findings of fact, conclusions of law, and recommendation contained herein must be filed within
