REPORT AND RECOMMENDATION
BRISTOW MARCHANT, Magistrate Judge.
The Plaintiff filed the complaint in this action, pro se, pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner wherein she was denied disability benefits. This case was referred to the undersigned for a report and recommendation pursuant to Local Rule 73.02(B)(2)(a), (D.S.C.).
Plaintiff applied for Disability Insurance Benefits (DIB) on August 13, 2013 (protective filing date), alleging disability beginning August 29, 20131, due to fibroids, a heart murmur, a tumor in her uterus, anemia, bursitis in her hip, and edema. (R.pp. 29, 54-55, 203). Plaintiff's claim was denied both initially and upon reconsideration. Plaintiff then requested a hearing before an Administrative Law Judge (ALJ), which was held (during which Plaintiff was represented by counsel) on October 3, 2016. (R.pp. 52-81). The ALJ thereafter denied Plaintiff's claim (finding that she was not disabled from her amended alleged onset date of August 29, 2013 to her date last insured for DIB on December 31, 2014) in a decision issued on November 30, 2016. (R.pp. 29-45). The Appeals Council denied Plaintiff's request for a review of the ALJ's decision, thereby making the determination of the ALJ the final decision of the Commissioner. (R.pp. 5-11).
Plaintiff then filed this action in United States District Court. Liberally construed, Plaintiff appears to assert2 that the ALJ's decision is not supported by substantial evidence, and that this case should be reversed with an award of benefits or alternatively remanded for further proceedings. The Commissioner contends that the decision to deny benefits is supported by substantial evidence, and that Plaintiff was properly found not to be disabled.
Scope of review
Under 42 U.S.C. § 405(g), the Court's scope of review is limited to (1) whether the Commissioner's decision is supported by substantial evidence, and (2) whether the ultimate conclusions reached by the Commissioner are legally correct under controlling law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Richardson v. Califano, 574 F.2d 802, 803 (4th Cir. 1978); Myers v. Califano, 611 F.2d 980, 982-983 (4th Cir. 1980). If the record contains substantial evidence to support the Commissioner's decision, it is the court's duty to affirm the decision. Substantial evidence has been defined as:
evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify refusal to direct a verdict were the case before a jury, then there is "substantial evidence." [emphasis added].
Hays, 907 F.2d at 1456 (citing Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966)); see also Hepp v. Astrue, 511 F.3d 798, 806 (8th Cir. 2008)[Nothing that the substantial evidence standard is even "less demanding than the preponderance of the evidence standard"].
The Court lacks the authority to substitute its own judgment for that of the Commissioner. Laws, 368 F.2d at 642. "[T]he language of [405(g)] precludes a de novo judicial proceeding and requires that the court uphold the [Commissioner's] decision even should the court disagree with such decision as long as it is supported by `substantial evidence.'" Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
Medical Records
On August 29, 2013, Plaintiff was initially examined at North Central Family Medical Center (North Central) for complaints of abdominal bloating and fibroids. Lab work was ordered. (R.pp. 271-277, 413-417). Plaintiff was thereafter treated for chest pain and shortness of breath at the Chester Regional Medical Center on September 18, 2013. A chest x-ray was clear. She was diagnosed with acute bronchospasm, left chest posterior cystic structure of uncertain etiology, and cirrhosis.3 Albuterol was prescribed. (R.pp. 280-287, 359). A chest CT scan without contrast showed a nodular appearance to her liver that could be cirrhosis and for which metastatic disease was not excluded. There was also a large cystic structure in her right hemithorax posteriorly, and a CT scan of her abdomen and pelvis with contrast was suggested. (R.p. 350). A CT of Plaintiff's pulmonary arteries revealed no evidence of central pulmonary embolus, but showed irregular nodular densities in both lung bases that could be areas of bronchopneumonia. Metastatic disease was also considered, and there was a large cystic structure in her right chest posteriorly of uncertain etiology that was possibly a bronchogenic cyst. (R.p. 352).
During a followup appointment at North Central on September 19, 2013, Plaintiff complained that she had a bad reaction to the Albuterol mask, so samples of Symbicort were given for her shortness of breath. She was referred to cardiology concerning her heart murmur. (R.pp. 267-270, 418-421). On September 21, 2013, Plaintiff was treated for shortness of breath at the emergency department of Carolinas Health Care System in Charlotte, North Carolina. However, a chest x-ray was noted to be unremarkable, and the impression was dyspnea. (R.pp. 291-314). On September 23, 2013, Plaintiff was examined by Dr. Pradeep Singh of Carolina Cardiology Associates for her complaints of dyspnea and chest pain. Dr. Singh's impression was obesity (for which he gave instructions on a low fat diet), a cardiac murmur that did not appear to be significant as it appeared to be a soft ejection flow murmur (Plaintiff's echocardiogram records were to be obtained), and shortness of breath with no evidence of congestive heart failure or a cardiac disorder (Plaintiff's EKG was noted to be normal). (R.pp. 320-321).
The very next day, Plaintiff presented to the Chester Regional Medical Center emergency room for complaints of shortness of breath. A chest x-ray was again noted to be normal. (R.pp. 339-340, 354). A CT (with IV contrast) of Plaintiff's abdomen and pelvis revealed a cystic mass in her right lower thorax which was likely a bronchogenic cyst; enlargement of her heart; diffuse parenchymal lesions of her liver, an enlarged liver, and nodular surfaces for which further evaluation was suggested; and a very enlarged uterus with calcified and noncalcified masses which might represent leiomyomas (fibroids), but for which leiomyosarcoma was not excluded and consultation with a gynecologist was suggested. The impression was large cystic structure in the posterior right hemithorax probably a bronchogenic cyst; a large nodular liver, likely cirrhosis; multiple liver lesions with metastatic disease not excluded and several enlarged lymph nodes in the gastrohepatic ligament; and a grossly abnormal uterus with multiple masses which might represent leiomyomatous change but for which a leiomyosarcoma could not be excluded. (R.pp. 341-343, 354-356). She was diagnosed with an acute exacerbation of asthma and an abdominal mass. (R.pp. 325-338, 353). Plaintiff returned again to the Chester Regional Medical Center the next day (September 25, 2013), where she was discharged with an assessment of sleep apnea. (R.pp. 345-348, 357).
Gynecological care was provided to the Plaintiff at North Central on September 26 and October 3, 2013. (R.pp. 426-430). After a blood pressure check at North Central on December 12, 2013, Plaintiff was diagnosed with hypertension. Plaintiff complained of fatigue, dyspnea, bloating, and numbness in her extremities. Medication was prescribed, blood tests were ordered, and the plan was for Plaintiff to return in the new year for a CT of her abdomen and pelvis to rule out a neoplasm. (R.pp. 378-380, 392-396, 431-435). During an appointment at North Central on March 12, 2014, Plaintiff's hypertension was found to be uncontrolled, but it was also noted that she had not filled her blood pressure prescription. (R.pp. 401-403). On May 12, 2014, Plaintiff was again assessed with hypertension and medications were prescribed at North Central. (R.pp. 405-407). Plaintiff's blood pressure was elevated some at an appointment at North Central on July 1, 2014. (R.pp. 444-447).
The record also shows that, after her date last insured for DIB, Plaintiff was treated for hypertension, asthma, and dyslipidemia at Good Samaritan Medical Clinic on March 18 and June 3, 2015. (R.pp. 453-458). She was treated at Chester Regional Medical Center for an acute exacerbation of her hypertension on June 4, 2015. (R.pp. 461-468).
Upon referral from Good Samaritan, Plaintiff began treatment for asthma, shortness of breath, and coughing with Dr. Ifediora F. Afulukwe at Metrolyna Healthcare on July 23, 2015.4 Prednisone was prescribed. (R.pp. 472-476). On November 23, 2015, Plaintiff reported to Dr. Afulukwe that she had marked dyspnea with activity, was unable to climb a flight of stairs, and had limitations walking on level ground in her home. Dr. Afulukwe assessed Plaintiff as being overweight and having asthma, dyspnea, and snoring symptoms. He noted that she needed a sleep study, but was unable to afford one. Dr. Afulukwe assessed Plaintiff with respiratory symptoms which appeared to be allergic respiratory diathesis with AR and asthma for which Singulair was prescribed, and opined that "[a]s a result of [Plaintiff's] respiratory difficulties and chronic fatigue, she has not been able to work." (R.pp. 469-472).
After her claim was denied by the ALJ on November 30, 2016, Plaintiff, at that time still represented by counsel, submitted records from the Chester Regional Medical Center dated September 14, 2016 (20 pages); records from Health Springs Medical Center dated September 29, 2016 (5 pages); and a medical source statement from Dr. Afulukwe dated February 20175 (7 pages) to the Appeals Council.6 Plaintiff argued to the Appeals Council that the ALJ failed to properly evaluate the opinion evidence and failed to properly evaluate her RFC. (R.pp. 253-257). In denying Plaintiff's request for review, the Appeals Council stated that it had considered the reasons Plaintiff disagreed with the ALJ's decision, but found that they did not provide a basis to change the ALJ's decision. In doing so, the Appeals Council noted the medical records submitted to it, and stated:
The [ALJ] decided your case through December 31, 2014, the date you were last insured for disability benefits. This new information is about a later time. Therefore, it does not affect the decision about whether you were disabled at the time you were last insured for disability benefits.
(R.p. 6).
With her pro se Brief filed in this case, Plaintiff submitted copies of portions of radiological studies of her abdomen, pelvis, and chest taken in September 2013 (ECF No. 23 at 1-3), which are already part of the record (R.pp. 341-342, 352). She also submitted portions of a CT of her abdomen and pelvis taken on September 14, 2016 (ECF No. 23 at 4-7),7 which are not part of the record.
Discussion
Plaintiff was fifty-five years old on the date she was last insured for DIB; has a high school education; and has past relevant work as a vacuum metalizer operator, a woodworking machine off-bearer, and as an ornament maker, hand. (R.pp. 42, 56, 74-75, 177, 204). In order to be considered "disabled" within the meaning of the Social Security Act, Plaintiff must show that she has an impairment or combination of impairments which prevent her from engaging in all substantial gainful activity for which she is qualified by her age, education, experience, and functional capacity, and which has lasted or could reasonably be expected to last for a continuous period of not less than twelve (12) months. After a review of the evidence and testimony in the case, the ALJ determined that, although Plaintiff does suffer from the "severe" impairments8 of hypertension and morbid obesity (R.p. 33), she nevertheless retained the residual functional capacity (RFC) to perform medium work9 with the limitations of only occasional climbing of ladders, ropes, or scaffolds; frequent climbing of ramps and stairs; and frequent balancing, bending, stooping, kneeling, crouching, and crawling. (R.p. 38). At step four, the ALJ found that Plaintiff could perform her past relevant work as a vacuum metalizer operator (medium, semi-skilled work); woodworking machine off-bearer (medium, unskilled work); and ornament maker, hand (light, semi-skilled work) with these limitations. (R.p. 42). The ALJ also obtained testimony from a vocational expert (VE) and alternatively found at step five that Plaintiff could also perform other jobs existing in significant numbers in the national economy, and that she was therefore not disabled during the period at issue. (R.pp. 42-44).
In her Complaint, Plaintiff contends that the ALJ erred in not finding that her cirrhosis, asthma, high blood pressure, edema, and tumor of her uterus were severe impairments; erred by finding that her conditions were due to obesity; erred in finding that her condition would get better; and erred in finding that she could perform her past relevant work. Complaint, ECF No. 1 at 4. In her Brief, Plaintiff argues that that the ALJ's decision is not supported by substantial evidence, including the medical evidence, and that she is unable to work. The Commissioner contends that the record, including the expert medical opinions, support the ALJ's finding that Plaintiff had the RFC to perform medium work with occasional climbing of ladders, ropes, or scaffolds and frequent climbing, bending, stooping, kneeling, crouching, crawling, and climbing of ramps and stairs. However, after careful review and consideration of the evidence and arguments presented, and for the reasons set forth and discussed hereinbelow, the undersigned is constrained to agree with the Plaintiff that the Commissioner's decision is not supported by substantial evidence, in particular that the ALJ's RFC determination is not supported by substantial evidence, thereby requiring a remand for further consideration of Plaintiff's claim.
RFC is defined as "the most [a claimant] can still do despite [the claimant's] limitations." 20 C.F.R. § 404.1545(a)(1). In SSR 96-8p, RFC is defined as a function-by-function assessment of an individual's physical and mental capacities to do sustained, work-related physical and mental activities in a work setting on a regular and continuing basis of eight hours per day, five days per week, or the equivalent. SSR 96-8p, 1996 WL 374184. An RFC "assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations)"; Id. at *7; and "[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." Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015), citing Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013).
Here, the undersigned is simply unable to determine from the decision how the ALJ concluded that Plaintiff could perform a range of medium work. Although the ALJ set out her RFC findings at the beginning of finding number 5 (R.p. 38), a plain reading of the remainder of this finding fails to reveal how the ALJ reached this conclusion. The ALJ spends a considerable amount of time reviewing the medical records from Plaintiff's period of DIB eligibility, but then states:
In the absence of a functional capacities evaluation completed by a treating physician, I have given substantial weight to the findings of the State agency medical consultants. . . . . The State agency physicians concluded that, prior to her date last insured of December 31, 2014, the claimant was able to sit, stand, or walk about six hours in a work day; could push and pull, lift and carry 50 pounds occasionally and 25 pounds frequently; had minimal postural limitations; and had no manipulative, visual, communicative, or environmental limitations. In making my function-byfunction assessment, I generally agree with the functional limitations imposed by the State agency medical consultants.
(R.pp. 41-42).
This determination by the ALJ is indeed supported by the findings of state agency physician Dr. Lena Caldwell, which is in turn consistent with the ALJ's RFC finding. On May 27, 2014, Dr. Caldwell opined that Plaintiff could occasionally lift and/or carry up to fifty pounds; frequently lift and/or carry up to twenty-five pounds; frequently climb ramps/stairs, balance, stoop, kneel, crouch, and crawl; and occasionally climb ladders/ropes/scaffolds. (R.pp. 102-104). See Johnson v. Barnhardt, 434 F.3d 650, 657 (4th Cir. 2005)[ALJ can give significant weight to opinion of medical expert who has thoroughly reviewed the record]; see also Ponder v. Colvin, 770 F.3d 1190, 1195 (8th Cir. 2014) [noting that opinions from state agency consultants may be entitled to even greater weight than the opinions of treating or examining sources].
However, although the ALJ states that her RFC findings are based on the findings of both of the state agency medical consultants, her RFC findings are in fact not supported by the other state agency physician opinion, Dr. Elva Stinson. On February 24, 2014, Dr. Stinson opined that Plaintiff was limited to performing only light work,10 finding that Plaintiff could occasionally lift and/or carry up to twenty pounds and frequently lift and/or carry up to ten pounds. Additionally, Dr. Stinson opined that Plaintiff had greater postural limitations than found by Dr. Caldwell, such that Plaintiff could only occasionally climb ramps/stairs, stoop, kneel, crouch, and crawl; frequently balance; and never climb ladders/ropes/scaffolds. (R.pp. 89-91). Thus, as the ALJ appears to have based her RFC determination that Plaintiff could perform medium work as set forth in the RFC almost entirely upon the findings of the State agency physicians, it cannot be said that this determination is supported by substantial evidence, as it fails to acknowledge and/or reconcile the opinion and restrictions of one of these state agency physicians whose findings are not supportive of the RFC assigned in the decision. Cf. Cotter v. Harris, 642 F.2d 700 (3rd Cir. 1981) [listing cases remanded because of failure to provide explanation or reason for rejecting or not addressing relevant probative evidence].
Further, in making her RFC determination, the ALJ makes no mention of the November 2015 opinion of Dr. Afulukwe that "[a]s a result of [Plaintiff's] respiratory difficulties and chronic fatigue she has not been able to work." (R.p. 471). In fact, the ALJ (incorrectly) states that "none of the [Plaintiff's] treating professionals has provided an assessment of the [Plaintiff's] current functional capabilities, or indeed restricted her activity in any way." (R.p. 41). This is clearly not the case. Of course, it may be that the ALJ found that Dr. Afulukwe's opinion is one reserved for the Commissioner and therefore discounted it for that reason; see Castellano v. Secretary of Health & Human Servs., 26 F.3d 1027, 1029 (10th Cir. 1994) [physician opinion that a claimant is totally disabled "is not dispositive because final responsibility for determining the ultimate issue of disability is reserved to the [Commissioner]"; 20 C.F.R. § 404.1527(e) ["a statement that you are `disabled' or `unable to work' does not mean that we will determine that you are disabled"]; and/or that it did not relate to the relevant time period. However, he did not say so in the decision (indeed, he makes no reference to this opinion at all), and this Court is therefore left to wonder what weight (if any) the ALJ gave this opinion, or whether he even considered it in determining Plaintiff's RFC.11 Nester v. Astrue, No. 08-2045, 2009 WL 349701 at * 2 (E.D. Feb. 12, 2009)[Noting that the Court "may not consider post hoc rationalizations but must evaluate only the reasons and conclusions offered by the ALJ."].
Concededly, it may be that even if Plaintiff could only perform light work, she could still perform her past relevant light work of ornament maker, but this is unclear because the ALJ based his determination on the VE's testimony that Plaintiff could perform this work, while the VE's testimony was itself based on the hypothetical from the ALJ, which assumed that the claimant had an RFC for medium work with the ability to occasionally climb ladders, ropes, and scaffolds and to frequently perform other postural activities. (R.pp. 75-76). As such, if there is a change in the RFC, it might affect the VE's conclusions. These are not questions or issues that can be determined by this Court in the first instance.12 Morales v. Apfel, 225 F.3d 310, 317-318 (3d Cir. 2000) [It is for the ALJ to explicitly weigh the evidence and explain her rejection of a relevant medical opinion]; see also Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001)[Court cannot affirm a decision on a ground that the ALJ did not himself invoke in making the decision].
Therefore, this case should be reversed and remanded for a proper review and determination of Plaintiff's RFC and weighing of the medical evidence. With respect to any remaining claims of error asserted by the Plaintiff, the ALJ will be able to reconsider and re-evaluate the evidence in toto as part of the reconsideration of this claim. Hancock v. Barnhart, 206 F.Supp.2d 757, 763-764 (W.D.Va. 2002)[On remand, the ALJ's prior decision has no preclusive effect, as it is vacated and the new hearing is conducted de novo].
Conclusion
Based on the foregoing, and pursuant to the power of this Court to enter a judgment affirming, modifying or reversing the decision of the Commissioner with remand in Social Security actions under Sentence Four of 42 U.S.C. § 405(g), it is recommended that the decision of the Commissioner be reversed, and that this case be remanded to the Commissioner for proper consideration of the opinions of record, and for such further administrative action as may be necessary and appropriate. See Shalala v. Schaefer, 509 U.S. 292 (1993).
The parties are referred to the notice page attached hereto.ice pagge attachc edd hereto.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must `only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).
