MARY GORDON BAKER, Magistrate Judge.
Plaintiff, through counsel, seeks judicial review of an unfavorable final administrative decision denying her application for a period of disability and disability benefits ("DIB") pursuant to the Social Security Act ("SSA"). See 42 U.S.C. § 405(g); Titles II and XVI of the SSA, 42 U.S.C. §§ 401-404. Pursuant to Local Civil Rule 73.02(B)(2)(a) and 28 U.S.C. § 636(b)(1)(B), pretrial matters have been referred to the assigned United States Magistrate Judge. Having carefully considered the parties' briefs (DE# 13-14), administrative record (DE#9), and applicable authority, the Magistrate Judge recommends that the Commissioner's final decision is supported by substantial evidence and should be
The Court's review of the Commissioner's final decision is limited to: (1) whether substantial evidence supports such decision; and (2) whether the Commissioner applied the correct legal standards. 42 U.S.C. §§ 405(g), 1383(c)(3); Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Lewis v. Comm'r, 858 F.3d 858, 865 (4th Cir. 2017). "Substantial evidence means `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Smith v. Heckler, 782 F.2d 1176, 1179 (4th Cir. 1986) (quoting Perales, 402 U.S. at 401). Substantial evidence is defined as "more than a mere scintilla but less than a preponderance." Smith v. Chater, 99 F.3d 635, 637-38 (4th Cir. 1996). The court may not re-weigh evidence, make credibility determinations, or substitute its own judgment for the Commissioner's, so long as the decision is supported by substantial evidence. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). It is the duty of the Commissioner, not the courts, to make findings of fact and resolve conflicts in the evidence. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). If the decision is supported by substantial evidence, the reviewing court must affirm, even if it would have decided the case differently. Lester v. Schweiker, 683 F.2d 838, 841 (4th Cir. 1982); Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam) ("Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ].").
The SSA provides that disability benefits are available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are disabled within the meaning of the statute. 42 U.S.C. § 423(a). The claimant must produce evidence and prove that she is disabled under the SSA, § 205(g), 42 U.S.C. § 405(g); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981) (the claimant "bears the burden of proving a disability"). Under the SSA, "disability" means the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A).
The Social Security regulations set forth a five-step sequential process that considers a plaintiff's age, education, work experience, and medical condition. 20 C.F.R. §§ 404.1520(a). To be entitled to benefits, Plaintiff "(1) must not be engaged in substantial gainful activity, i.e., currently working; and (2) must have a severe impairment that (3) meets or exceeds the listings of specified impairments, or is otherwise incapacitating to the extent that the plaintiff does not possess the residual functional capacity ["RFC"] to (4) perform [the plaintiff's] past work or (5) any other work." Albright v. Comm'r, 174 F.3d 473, 475 n.2 (4th Cir. 1999); Lewis, 858 F.3d at 860-61. Plaintiff bears the burden of production through the fourth step. Monroe v. Colvin, 826 F.3d 176, 179-80 (4th Cir. 2016). If Plaintiff reaches step 5, the burden of production shifts to the government to provide evidence that other work exists in significant numbers in the national economy that Plaintiff can do. Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992) (per curiam). Plaintiff has the burden to show disability.
The relevant facts have been set forth in the ALJ's decision (AR 15-25) and in the parties' briefs (DE# 13-14), and need only be summarized here. Plaintiff was born March 6, 1955 (see AR 273) and was age 58 ("advanced age") on her alleged disability onset date of February 10, 2014. 20 C.F.R. §§ 404.1563(e), 1568(d)(4). Plaintiff has a high school education, can read and write, and communicates in English. (AR 21, 37, 85. 204). She is married and lives with her husband. (AR 21, 35, 212). She has three adult children and several young grandchildren. (Id.; AR 352). Plaintiff has past relevant work experience (2005-2014) as a general cashier at a MUSC parking garage (light, unskilled) and as a temporary warehouse worker (medium, unskilled, 1999-2005). (AR 25, 37-41, 55, 206).
On May 8, 2014, Plaintiff filed an application for DIB benefits, alleging disability as of February 10, 2014, due to symptoms of degenerative disc disease (i.e. leg pain, weakness, radiculopathy), diabetes, gout, and depression. (AR 17, 154, 205).
On March 30, 2016, the ALJ issued a decision that Plaintiff was not disabled from the alleged onset date through the date of decision. (AR 13-25). The ALJ decided the case at step 4, finding that Plaintiff could still perform her past relevant work as a general cashier, as actually and generally performed. (AR 25). The Appeals Council denied the Plaintiff's request for review, and the ALJ's decision is the Commissioner's final decision.
Plaintiff's brief sets forth her relevant medical history. (DE#13 at 2-5). After complaining in late 2013 of back pain to her primary physician, Dr. Robert Eads, M.D., Plaintiff was referred to neurosurgeon Dr. Steven Rawe, M.D. (AR 302-303). After discussing various treatment options, including steroidal injections, Plaintiff opted for elective surgery. (AR 304). She denied any depression at that time. (AR 303, notes 11/25/2013). On February 19, 2014, Dr. Rawe performed back surgery, including a "hemilaminotomy and inferior laminectomy of T3" and fusion of L3-4. (AR 42-43, 304-09).
At her post-operative visit on March 3, 2014, Plaintiff indicated her left leg pain was resolved. (AR 298). Noted from a visit on March 18, 2014 indicate the patient was "doing well," patient states "pain in back is better," and "leg pain is better." (AR 296). At a visit on April 1, 2014, Plaintiff reported some pain due to a fall (AR 294, noting that patient's "leg pain is not as severe as it was pre-op and [she] has been taking her husband's oxycodone"). Examination revealed no sensory deficits and no weakness of Plaintiff's lower extremities. (Id.). Plaintiff tested negative on straight leg raising. (Id.). Plaintiff was prescribed the narcotic analgesic "Norco." (Id.). At a visit on May 19, 2014, Plaintiff reported that overall, she had improved since surgery, although she stated she still had some lower back pain and wanted more narcotic painkiller (AR 333-335, noting "stop date" of 07/05/2014 for Norco prescription). Lumbar X-rays on May 19, 2014 showed intact spaces, normal alignment, and no instability (AR 345).
On June 30, 2014, Plaintiff underwent a consultative psychological examination with Dr. John Custer. He noted that there were no medical records in the file for any psychological treatment, and that he was obtaining information solely from the Plaintiff herself (AR 351-354). Plaintiff indicated she had a history of lower back pain but denied any other medical problems. (AR 352). Plaintiff indicated she was still receiving physical therapy, but felt depressed that her surgery had not helped more. (Id.). She reported her ability to concentrate was alright if she was not interrupted, and Dr. Custer observed no concentration deficits during the evaluation. Plaintiff reported to Dr. Custer that she enjoyed activities, such as swimming, reading, and spending time with her grandchildren. Plaintiff indicated she was able to do housework, cook, and manage her own finances. (AR 352). Dr. Custer observed no pain behavior, observed normal posture and gait, and found the Plaintiff to be fully oriented, logical and goal-directed. Dr. Custer administered a Folstein mini mental status exam to the Plaintiff, and her results were normal (i.e. scoring 27 out of 30). (AR 353).
On July 23, 2014, orthopedic specialist Dr. Thaddeus Bell, M.D., performed a comprehensive physical examination of the Plaintiff and reviewed her medical history. (AR 355-57). Dr. Bell observed that the Plaintiff was able to get on and off the examination able without difficulty, had no sensory deficits, no gait disturbance, no strength or reflex deficits in any extremity, no joint deformities, no atrophy, and full muscle strength of 5/5. (Id.). Dr. Bell found that the Plaintiff had full range of motion in her neck and back (without any pain), was able to heel-toe and tandem walk without difficulty, and did not use an assistive device. (AR 356). Plaintiff's straight leg testing was "completely normal." (Id.). Dr. Bell noted that the Plaintiff's radiculopathy "is currently under control on medications," that her gout was stable and managed with medication, and that Plaintiff had acknowledged that her diabetes was also "under good control." (AR 355). Dr. Bell concluded that she "does not appear to need any type of disability [benefit]." (AR 357; see also AR 80-81, consulting examiner notes indicating "claimant remains capable of past work").
At a visit to her primary doctor's office on August 12, 2014, Plaintiff reported that her leg pain had improved, but she still wanted narcotic pain medication for alleged lower back pain (AR 359). Although no weakness or sensory deficits were noted on examination, she was continued on narcotic medication at that time. (Id.). The following year (2015), the Plaintiff had several visits at the office of her primary physician for prescription refills, including for her diabetes medication (AR 368-394, Exs. 8F-9F).
For her activities of daily living during the relevant time period, the Plaintiff indicates she walks to the library (a 23-minute trip each way), goes shopping for groceries, does household chores, prepares meals, does laundry, watches television, talks on the phone, visits with her grandchildren, enjoys reading, plays cards, attends church, pays bills, and uses a checking account. (AR 19, 47-50, 215-17). She is able to take care of her personal hygiene and dress herself. (AR 214). She has a driver's license and is able to drive. (AR 37, 351). She indicates she does household chores for 30-45 minutes until her back starts aching (AR 48-50). Plaintiff indicates she is able to lift ten pounds and walk a one-half mile for exercise. (AR 83, 218). In 2015, her primary physician (Dr. Eads) repeatedly advised the Plaintiff to engage in moderate activity and walk at least 30 minutes a day for exercise. (AR 382-83, notes 09/04/2015; AR 387, notes 2/25/2015). Plaintiff indicates she can follow written and spoken instructions "pretty good/OK," can pay attention for 1-2 hours, and gets along "pretty good" with others. (AR 218, indicating she has "no problem with authority figures").
After considering all of the evidence, the ALJ determined that the Plaintiff's degenerative disc disease was a "severe" impairment for purposes of the SSA. (AR 17, Finding 3). See 20 C.F.R. Pt. 404, Subpt. P, App. 1; 20 C.F.R. §§ 404.1520(d), 1525, 1526. The ALJ found other impairments to be non-severe, including diabetes, hypertension, and high cholesterol. The ALJ observed that these were treated with prescribed medication and did not result in any significant functional limitations.
The ALJ determined that Plaintiff's impairments, singly or in combination, were not of Listing-level severity and did not meet or medically equal the criteria for any Listings, including Listing 104A. (AR 19, Finding 4).
The ALJ assessed Plaintiff's work-related abilities on a function-by-function basis and determined that Plaintiff had the RFC to perform light work, with some postural restrictions (AR 20, Finding 5). Specifically, the ALJ provided that Plaintiff was "limited to frequent balancing and frequent climbing of ramps and stairs. . .[and] limited to occasionally stooping, kneeling, crouching, and crawling. . .[and] must never climb ladders, ropes, and scaffolds." (AR 20, Finding 5). At step four, the ALJ determined that Plaintiff could perform her past relevant work as a general cashier at the parking garage. (AR 25, Finding 6). See 20 C.F.R. 404.1565 and 416.965. The ALJ concluded that the Plaintiff was not disabled within the meaning of the SSA. (AR 25, Finding 7). The Appeals Council denied further review. (AR 1-6, Notice), and the ALJ's decision is the Commissioner's final decision.
Plaintiff argues that the ALJ improperly evaluated certain medical evidence, which Plaintiff characterizes as "opinion evidence." (DE# 13 at 7). Specifically, Plaintiff argues that the ALJ ignored an alleged "medical opinion" embedded in a progress note by a nurse practitioner. Plaintiff bases this argument on a single sentence in the progress notes by nurse practitioner Cynthia Anderson, who worked in the office of Plaintiff's primary physician, Dr. Robert Eads. On August 12, 2014, Ms. Anderson signed the progress notes for a post-surgical follow-up visit. (AR 359). The notes indicated that, six months post-operatively, Plaintiff's leg pain had "improved," and that although Plaintiff "still complains of moderate back pain," she was doing her "back exercises" and making "slow progress." (Id.). The progress notes indicate a "well-healed incision," no weakness or sensory abnormalities in the lower extremities, ankle and knee reflexes present, and good sensation. Ms. Anderson then noted: "She is unable to return to her job as a parking lot attendant at [M]edical University of South Carolina. This is due to the prolonged standing, walking, and sitting." (Id.). The note did not indicate whether this was temporary, did not provide for any activity restrictions, and did not offer any explanation for such conclusion. The notes then indicated "follow-up appointment in 6 months." (Id.).
Plaintiff points to the note that Plaintiff was "unable to return to her job" and characterizes this as a "medical opinion" of disability by the nurse practitioner. (DE# 13 at 8-9). Plaintiff sets forth the criteria for considering the opinions of treating physicians. (Id.).
In response, the Commissioner correctly points out that Ms. Anderson was not an "acceptable medical source" under the applicable regulations, and that by definition, such nurse practitioner did not provide a "medical opinion" in this case. (DE#14 at 5). The regulations define medical opinions as "statements from physicians and psychologists or other acceptable medical sources." 20 C.F.R. § 404.1527(a)(2); and see SSR 06-03p (explaining that only acceptable medical sources can give medical opinions and be considered treating sources whose opinions may be entitled to controlling weight).
The Commissioner also correctly points out that the nurse practitioner's note that Plaintiff was "unable to return to her job as a parking lot attendant" does not qualify as a "medical opinion" under the regulations. This single sentence amounts to a conclusion as to disability, which is a matter reserved to the Commissioner. 20 C.F.R. § 404.1527(d)(1) ("Opinions on some issues . . . are not medical opinions . . . but are, instead, opinions on issues reserved to the Commissioner because they are administrative findings that are dispositive of a case; i.e., that would direct the determination or decision of disability."). The law does not give "any special significance to the source of an opinion on issues reserved to the Commissioner." 20 C.F.R. § 404.1527(d)(3). Opinions by a medical source on issues reserved to the Commissioner, such as whether a claimant is unable to work, are not entitled to controlling weight. Morgan v. Barnhart, 142 F. App'x 716, 722 (4th Cir. 2005) (holding ALJ did not err in concluding that opinions that the claimant was "disabled" were legal conclusions).
Plaintiff suggests in a footnote that the nurse practitioner would be an "other source." (DE# 13 at 8, n.1). See 20 C.F.R. §§ 404.1513(d). SSR 96-5p explains that the ALJ must "evaluate all evidence in the case record that may have a bearing on the determination of disability, including opinions from medical sources about issues reserved to the Commissioner." "If the case record contains an opinion from a medical source on an issue reserved to the Commissioner, the adjudicator must evaluate all the evidence in the case record to determine the extent to which the opinion is supported by the record. Id. To the extent the nurse practitioner's note is considered to be an opinion by an "other source," the Commissioner points out that the nurse practitioner did not provide any functional assessment, did not specify any restrictions, and did not provide any explanation for her conclusion that Plaintiff was unable to return to her job. (AR 359).
Furthermore, the record reflects that the ALJ did review and specifically discuss Dr. Eads' medical records, which included the progress notes containing the single sentence by the nurse practitioner. First, the ALJ generally indicated that she had "carefully considered the claimant's. . . complete medical history." (AR 24, citing Exs. 1F-9F). The ALJ indicated that she had "carefully considered the claimant's treatment history." (AR 22, citing Exs. 1F-4F, and 7F-9F). The ALJ indicated that she had "considered the opinion evidence in accordance with the requirements of 20 C.F.R. § 404.1527 and SSRs 96-2p, 96-5p, and 06-3p." (AR 20). The ALJ then specifically discussed the medical records, including the records from Plaintiff's primary physician Dr. Eads. (AR 22, citing Ex. 7F). The ALJ observed that in August 2014, the medical notes indicate that the Plaintiff was making "very little progress" and that she was referred to physical therapy. (Id.). The ALJ further discussed the progress notes documenting the Plaintiff's reported improvement after some additional physical therapy. (AR 22, citing Ex. 7F). The ALJ pointed out that despite the Plaintiff "reporting some lingering pain symptoms, [Plaintiff] also repeatedly reported that she was `better' during multiple unremarkable physical examinations." (AR 22, citing Exs. 2F/6, 3F/21, and 7F/1). As Ex.7F/1 is the exact page where the nurse practitioner's note is found, the record reflects that the ALJ did in fact consider it in light of the "unremarkable physical examination" on that date. The ALJ's reference was made in the context of an overall discussion of the medical evidence of record. (AR 22-24).
When fairly considered, the ALJ's decision included a sufficient narrative discussion of the reasons for the weight given to the evidence of record, including the 2014 progress notes signed by the nurse practitioner. (See AR 22, noting "multiple unremarkable physical examinations"). The ALJ's reasons for the decision are sufficiently clear for review. See S.S.R. 96-2p; Monroe, 826 F.3d at 190; Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. April 26, 2018); and see, e.g., Pass v. Colvin, Case No. 0:15-cv-208-TLW-PJG; 2015 WL 9991455, *15 (D.S.C. Nov. 24, 2015), adopted by, 2016 WL 403865 (D.S.C. Feb. 3, 2016) (upholding ALJ's decision to deny benefits to applicant who had undergone a successful laminectomy and had normal 5/5 muscle strength).
Lastly, Plaintiff also briefly complains that the ALJ gave "great" weight to the opinion of the orthopedic specialist, Dr. Thaddeus Bell, M.D., who had performed a comprehensive physical examination of Plaintiff. (DE# 13 at 9). Plaintiff argues that the ALJ should have given less weight to the opinion of this consulting examiner. According to Plaintiff, "Dr. Bell's statement doesn't provide a judgment about the nature or severity of Ms. Sturges' impairment, nor is a diagnosis, prognosis, nor is a statement about what she can and cannot do." (DE# 13 at 9); see 20 C.F.R. 404.1527(a)(1). Plaintiff's assertion is not accurate, as Dr. Bell's report did, in fact, discuss the nature and severity of Plaintiff's various impairments. For example, Dr. Bell reviewed Plaintiff's medical history, including her back surgery, her complaints of back and leg pain, her diagnosis for diabetes and gout, and her past substance abuse. (AR 355). Dr. Bell indicated that physical "examination of her back reveals full range of motion in all planes . . . straight leg test . . .is completely normal. . .she can do heel, toe, and tandem walk walking without problems. . .no gait disturbances. . .no evidence of muscle weakness in the lower extremities. . .no evidence of atrophy." (AR 355-56). He noted that Plaintiff was still going to physical therapy. He reviewed Plaintiff's medications and observed that her diabetes and gout were under control with medication. (Id.).
As the ALJ discussed in the decision, and contrary to Plaintiff's assertion, Dr. Bell indicated in his report that, after a comprehensive physical examination of Plaintiff, he found "no significant signs from her recent surgery" and that Plaintiff's "musculoskeletal examination was "normal and unremarkable." (AR 24, citing Ex. 6F, report from examination on 6/23/2014). The ALJ noted that Dr. Bell had observed that Plaintiff did not use an assistive device and did not appear uncomfortable. (Id.). Based on his examination of Plaintiff, his personal observations, and his review of her medical history, Dr. Bell concluded that Plaintiff "does not appear to me as though [she] needs any type of disability [benefits] at this point of time." (Id.). Plaintiff has not pointed to any error in the ALJ's weighing of Dr. Bell's opinion set forth in his written report.
Plaintiff is essentially asking the Court to reweigh evidence, which it may not do. Johnson, 434 F.3d at 653 ("it is not the province of the Court to reweigh conflicting evidence . . . or substitute [its] judgment for that of the ALJ"). A reviewing court may not re-weigh the evidence or substitute its judgment for that of the Commissioner, rather, the pertinent inquiry is whether the decision is supported by substantial evidence. Hays, 907 F.2d at 1456; Hancock, 667 F.3d at 472; see also Vincent v. Colvin, Case No. 4:15-2867-MGL, 2016 WL 7473429, *3 (D.S.C. Dec. 29, 2016) ("the fact that the ALJ could have offered a more thorough explanation for [the] decision does not change our conclusion that substantial evidence in the record supports that decision") (quoting Dunn v. Colvin, 607 F.App'x 264, 276 (4th Cir. June 1, 2015)). Here, the ALJ's decision is adequately supported by substantial evidence of record.
Accordingly, the Magistrate Judge recommends that the Commissioner's final decision is supported by substantial evidence and should be
