KEVIN F. McDONALD, Magistrate Judge.
This case is before the court for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a)(D.S.C.), concerning the disposition of Social Security cases in this District, and Title 28, United States Code, Section 636(b)(1)(B).
The plaintiff brought this action pursuant to Sections 205(g) and 1631(c)(3) of the Social Security Act, as amended (42 U.S.C. 405(g) and 1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security denying her claims for disability insurance benefits and supplemental security income benefits under Titles II and XVI of the Social Security Act.
The plaintiff filed applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") benefits on April 3, 2013. In both applications, the plaintiff alleged that she became unable to work on February 1, 2012. Both applications were denied initially and on reconsideration by the Social Security Administration. On March 17, 2014, the plaintiff requested a hearing. The administrative law judge ("ALJ"), before whom the plaintiff and Robert E. Brabham, Sr., an impartial vocational expert, appeared on May 16, 2016, at a video hearing, considered the case de novo, and on June 8, 2016, found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 22-31). The ALJ's finding became the final decision of the Commissioner of Social Security when the Appeals Council denied the plaintiff's request for review on April 27, 2017 (Tr. 1-3). The plaintiff then filed this action for judicial review.
In making the determination that the plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
The only issues before the court are whether proper legal standards were applied and whether the final decision of the Commissioner is supported by substantial evidence.
Under 42 U.S.C. § 423(d)(1)(A), (d)(5) and § 1382c(a)(3)(A), (H)(i), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. §§ 404.1505(a), 416.905(a).
To facilitate a uniform and efficient processing of disability claims, the Social Security Act has by regulation reduced the statutory definition of "disability" to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment that meets or medically equals an impairment contained in the Listing of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1, (4) can perform his past relevant work, and (5) can perform other work. Id. §§ 404.1520, 416.920. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. §§ 404.1520(a)(4), 416.920(a)(4).
A claimant must make a prima facie case of disability by showing he is unable to return to his past relevant work because of his impairments. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). Once an individual has established a prima facie case of disability, the burden shifts to the Commissioner to establish that the plaintiff can perform alternative work and that such work exists in the national economy. Id. (citing 42 U.S.C. § 423(d)(2)(A)). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Id. at 192.
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings "are supported by substantial evidence and were reached through application of the correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Id. In reviewing the evidence, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Id. Consequently, even if the court disagrees with Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
The plaintiff was 51 years old on her alleged disability onset date (February 1, 2012) and 54 years old at the time of the ALJ's decision (June 8, 2016). She completed high school and has past relevant work experience as a cashier (Tr. 30, 215).
On March 9, 2011, the plaintiff was seen at Rural Health Services by Cherise Fretwell, M.D., for lab work and medication refills. The plaintiff had no complaints. A review of symptoms was negative. The plaintiff denied musculoskeletal symptoms, soft tissue swelling, and neurological symptoms (Tr. 322-23).
On April 20, 2012, the plaintiff saw her primary care physician, Fredric Woriax, M.D., at Weston Community Health for hypertension, hyperlipoproteinemia, vitamin D deficiency, uncontrolled diabetes, and diabetic neuropathy. The plaintiff reported she was doing well and had no complaints. She was smoking a pack of cigarettes a day with no desire to quit. Physical examination was normal. Her motor examination showed no dysfunction. She was instructed to stop smoking (Tr. 271-74).
On April 2, 2013, the plaintiff was seen for followup with Dr. Woriax. She complained of bilateral knee pain. Her motor examination showed no dysfunction. Dr. Woriax's assessment was hypertension, esophageal reflux, hyperlipoproteinemia, overweight, type two diabetes, and osteoarthritis of both knees. He encouraged her to stop smoking. Her handicap placard was renewed, and she was directed to follow up in three months (Tr. 266-68).
On July 12, 2013, x-rays of the plaintiff's bilateral knees showed degenerative changes and no acute osseous abnormality (Tr. 289).
On August 24, 2013, Stephen A. Schacher, M.D., performed a consultative physical examination. The plaintiff reported pain in her knees, ankles, and low back. She stated that she was diagnosed with fibromyalgia in 2005. The plaintiff told Dr. Schacher that she could walk less than a city block, sit for an hour squirming in her chair, stand for about 15 minutes, bend to get light items from the floor, had pain getting up and used furniture or the wall to get up, and could lift 25 pounds. The plaintiff also told Dr. Schacher that she stopped working as a cashier at a convenience store in 2011 because she was terminated. She claimed that she had not been able to work since that time because she had to tell job interviewers she could not go into coolers or lift more than 20 pounds. The plaintiff stated that she could drive and that she drove to the appointment. She acknowledged that she could shop in a grocery store while leaning on a shopping cart, cook simple meals, load/unload the top shelf of the dishwasher, and do laundry except for transferring clothes from the washer to the dryer. She stated that she could not go up or down a flight of stairs. Physical examination showed that she was in no acute distress. She had right knee pain when getting on and off the examination table and when getting up from the interview chair. Her right knee was thickened from osteoarthritis with no evidence of edema. Lachman and McMurray tests were negative. The plaintiff had no pain with varus/valgus stretch. She had reduced range of motion of her lumbar spine, her left shoulder, her right knee, and both of her hips. She had normal range of motion in her cervical spine. All of the joints in both the left and right hand were normal. Dr. Schacher wrote that grip strength was 4+/5 on the right and 4/5 on the left, noting that the plaintiff was right handed. A neurological examination revealed that reflexes were 2+. There was very slight hesitation when putting weight on the right knee that resulted in a slight waddle, but no assistive device was needed. Balance was normal. Grip strength was weakened, left greater than the right upper extremity. The plaintiff could heel walk but not toe walk. Her ability to tandem walk was normal. A sitting straight leg raising test was 90 degrees on the left and 85 degrees on the right, and a supine straight leg raising test was 80 degrees on the left and 70 degrees on the right. There was no evidence of a gait disturbance or muscle weakness; there was no objective sensory loss, only subjective; reflexes were normal; and there was no evidence of atrophy. Diagnoses included high blood pressure on effective medication; non-insulin dependent diabetes mellitus with paresthesias in feet; bilateral carpal tunnel syndrome by history; osteoarthritis, right knee most affected joint; and fibromyalgia by history. The diagnostic impression was diffuse joint pain, muscle pain, and slightly weakened grips (Tr. 283-89).
On September 10, 2013, Darla Mullaney, M.D., opined in a residual functional capacity ("RFC") assessment that the plaintiff could occasionally lift and/or carry 20 pounds, frequently lift and/or carry ten pounds, and stand and/or walk for a total of six hours in an eight-hour workday, and sit for a total of six hours in an eight-hour workday. She was limited in her ability to push and/or pull with both lower extremities. She was limited to frequent use of foot pedals due to her knee osteoarthritis. She could occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl. She should never climb ladders, ropes, and scaffolds. She had no manipulative, visual, communicative, or environmental limitations (Tr. 78-79). On February 7, 2014, Michele Spero, M.D., opined the same (Tr. 97-98).
On September 24, 2013, the plaintiff reported restless legs at night. Her knee pain continued. She was issued a handicap placard for orthopedic issues, pain, and limited mobility. She felt Neurontin provided no benefit (Tr. 292-94).
On March 11, 2014, the plaintiff was seen by Samantha Parkinson, FNP, at Rural Health Services for routine medication followup and laboratory testing. She complained of increased pain in her lower extremities. She stated that Mobic no longer helped. Physical examination revealed the plaintiff's musculoskeletal system was normal. Assessment was benign essential hypertension and diabetes mellitus (Tr. 314-16). Ms. Parkinson also completed a disability questionnaire on March 11
On May 19, 2014, Ms. Parkinson requested that the plaintiff's handicap placard be renewed due to orthopedic issues, pain, and limited mobility without assistive aids (Tr. 314).
On September 29, 2014, Ms. Parkinson performed a physical examination, which revealed that the plaintiff was in no distress. She had normal heart rate and rhythm, her lungs were clear to auscultation, arterial pulses were equal bilaterally and normal, no edema was present, and she was oriented to time, place, and person. She was assessed with diabetes, hypertension, and high cholesterol (Tr. 313-14).
On April 7, 2015, the plaintiff reported to Ms. Parkinson that she was experiencing neuropathic leg pain. She also reported episodes of feeling distant and dizzy. She asked Ms. Parkinson to complete a handicapped form. Although Ms. Parkinson performed a physical examination, she did not assess the plaintiff's musculoskeletal system. Lyrica was prescribed for neuropathy. The plaintiff was told to consider the possibility of carotid occlusion, and a carotid Doppler was ordered. The plaintiff said she could not afford the test (Tr. 307-09).
On April 10, 2015, carotid Doppler ultrasound revealed high-grade stenosis approximating 70-89% stenosis and mild to moderate plaque formation approximating 20-39%stenosis (Tr. 360). A CT scan of the head was normal (Tr. 391).
An April 11, 2015, magnetic resonance angiography ("MRA") of the brain was unremarkable. MRI of the brain revealed nonspecific tiny scattered areas of white matter gliosis/demyelination, likely from small vessel ischemic change; no acute ischemia on diffusion weighted images; and no brain edema, mass, or mass effect (Tr. 396-97). Echocardiogram revealed that overall left ventricular systolic function was normal with an ejection fraction ("EF") of 60%, and no evidence of pulmonary hypertension (Tr. 347).
On April 11, 2015, Glenn Banegura, M.D., saw the plaintiff for complaints of dizziness and intermittent aphasia, with symptoms for weeks or months. Dr. Banegura referred to ultrasound results, which showed high-grade stenosis of the left carotid artery. The plaintiff informed Dr. Banegura that she had been smoking one pack of cigarettes per day since the age of 15 or younger. She specifically denied muscle pain, back pain, joint pain, or stiffness. A physical examination revealed grossly intact cranial nerves, no focal neurological deficits, and +2 deep tendon reflexes bilaterally. She moved all extremities spontaneously, her sensation was intact bilaterally, and her strength was 5/5 in all extremities. Dr. Banegura admitted the plaintiff to the hospital for a transient ischemic attack ("TIA") workup and evaluation of carotid blockage by vascular surgery and neurology (Tr. 362-63).
The plaintiff saw Thomas Paxton, M.D., on April 11, 2015, for a cardiovascular surgery consult. The plaintiff walked without difficulty and had normal strength. Dr. Paxton recommended a CTA arteriogram and a cardiac evaluation. He spoke to the plaintiff "sternly" about smoking cessation as she was still smoking one pack of cigarettes per day (Tr. 403-05).
On April 12, 2015, Gregory Eaves, M.D., saw the plaintiff for a preoperative cardiology consult. She reported that her exercise capacity was limited by knee pain, but that she was able to clean half of her three bedroom apartment before having to stop and rest. A physical examination revealed that the plaintiff was in no acute cardiopulmonary distress. There were no focal neurological deficits, and she moved all extremities spontaneously. A musculoskeletal examination revealed no gross deformities and normal range of motion. The assessment was carotid stenosis, left. Dr. Eaves noted that the plaintiff's echocardiogram was normal. Dr. Eaves recommended that the plaintiff proceed with carotid endarterectomy (Tr. 347, 399-402).
On April 16, 2015, Dr. Paxton performed a left carotid artery endarterectomy. The plaintiff was discharged home two days later in stable condition. Upon discharge, she was alert and in no acute cardiopulmonary distress. A physical examination revealed no focal neurological deficits and +2 deep tendon reflexes bilaterally. A musculoskeletal examination revealed no cyanosis or clubbing, no gross deformities, and normal range of motion (Tr. 386, 406, 413-14).
On April 28, 2015, Dr. Paxton saw the plaintiff for followup. She reported that she was "feeling great" and in "no pain." Dr. Paxton noted that her wound was healing well without infection and that there was less swelling. Dr. Paxton commented on "excellent early results." At the next followup visit, on June 1, 2015, the plaintiff reported that she was "feeling better" and in "no pain." Dr. Paxton commented on "[o]verall excellent early results" and recommended a followup visit and another carotid Doppler in about six months (Tr. 356-57).
On May 13, 2015, the plaintiff was seen by Ms. Parkinson for followup to her carotid endarterectomy. She had a lot of surgical pain and also reported neck pain. On October 27, 2015, the plaintiff reported back pain. She was also seen for diabetes and neuropathy. A physical examination revealed that the plaintiff's musculoskeletal and neurological systems were normal. It was noted that the plaintiff could not afford medical visits or medications (Tr. 304, 306).
On April 5, 2016, Ms. Parkinson saw the plaintiff for followup, at which time diagnoses included diabetes mellitus under control and hypertension. The plaintiff's blood pressure was 126/76 (Tr. 417-18).
At the administrative hearing on May 16, 2016, the plaintiff testified that she was 54 years old and had a twelfth grade education. She was five feet seven inches tall and weighed 190 pounds. She had recently lost about 30 pounds due to a lack of appetite. She had a driver's license and drove some of the time. She smoked half a pack of cigarettes a day. She did not drink alcohol or do street drugs. She did not have any computer skills, but she had a Facebook account. The plaintiff last worked in 2011 as a cashier at a gas station. She worked part-time at one gas station, but full-time at another. She was let go from her job because she was unable to do the work, which included stocking coolers, cleaning shelves, sweeping, and mopping. The heaviest thing she had to lift was soda and beer that weighed about 30 pounds. The plaintiff said she could not work due to osteoarthritis, fibromyalgia, diabetes, high blood pressure, and high cholesterol. At the time that she quit working, she also experienced diabetic neuropathy (Tr. 40-45).
The plaintiff further testified that she could not work because of her osteoarthritis that put pressure onto her joints and made it difficult to lift and carry things. She also had coronary artery disease, which she said affected her memory. She claimed that there was so much pressure building up in her neck that she felt her head was going to explode. She claimed that her doctors had attributed this to lack of oxygen. The plaintiff stated she was trying to have the blockage treated, but she had no insurance or medical coverage. The blockage caused pressure in her neck and head, and headaches. The plaintiff also had diabetes and her blood sugars were usually in the high 200s despite taking five diabetes pills a day. She could not afford insulin. She smoked cigarettes that cost about $3.00 a pack because she rolled her own. The plaintiff's neuropathy caused her feet and legs to go numb. She felt like she had bee stings in her feet and fire in her hands and arms. Her neuropathy made it difficult to walk or pick up things. Her neuropathy started three years before the hearing. Lyrica was prescribed, but she could no longer afford it. Her neuropathy was worsening, and she had pain and numbness that made it difficult for her to stand and move (Tr. 47-51, 64).
The plaintiff testified that her impairments made it difficult for her to perform her work, especially if she had to go into the coolers. Her doctor wrote a note stating that the plaintiff could not work in the coolers because it worsened her arthritis. She was not able to perform the lifting that was required in her work. She went in the cooler two or three times a day for 30 to 45 minutes each time. She was able to come out of the cooler to warm up and then go back in. The plaintiff used a cane at the hearing. She had been using a cane for two years. She was afraid of falling because of numbness in her feet. The cane was not prescribed, but she testified that she was told to use it by her nurse practitioner (Tr. 52-54).
The plaintiff testified that she also had problems with her back that made it difficult for her to stand for long periods of time. She stated that she had severe lower back pain, which made it difficult for her to walk. She had to take a break while doing dishes because of the pain. Her back pain interfered with her ability to work at least two years prior to the hearing. She did not initially list back pain as an impairment because she listed osteoarthritis. She felt osteoarthritis caused her back problems. The plaintiff's nurse practitioner issued a disability placard for her because she could not walk 100 feet without aggravating her medical condition. Her knees were also very bad, and she estimated that she could only stand for 20 to 30 minutes at a time. She could walk for about the same amount of time with her cane at a slow pace. The plaintiff estimated that she could sit for about 30 minutes. Her back hurt while she was sitting at the hearing. She testified that no one had proposed back or knee surgery (Tr. 54-57, 59).
In a typical day, the plaintiff woke up, made breakfast, and did a little housekeeping. Her husband helped her with chores she could not do. She did laundry, but she could not get the clothes out of the washer. Her husband got the clothes out of the dryer and brought them to her so that she could sit and fold them. She had some days when she did not feel well enough to do any chores. The plaintiff testified that she would seek more treatment for her neck, and she would be able to get insulin if she had medical coverage (Tr. 58-59).
The plaintiff was concerned about the surgery on her artery. She also had some ischemic attacks due to the condition with her neck. The ischemic attacks affected her memory, and she was unable to remember little things such as how to spell simple words. The plaintiff stated that she agreed with her nurse practitioner's opinion that her pain would prevent working for several days a month and that she would have problems sitting and standing throughout the workday (Tr. 59-61).
The plaintiff felt she could not stand for six hours in an eight-hour workday unless she had an ability to sit in between. She also thought she could not sit for six hours. She stated she could maybe sit for four hours with an opportunity to get up and down. Her ability to walk would be limited to no more than 30 minutes during a normal day, even if she could rest. She testified that when she went to the grocery store, she used the grocery cart as a walker. The heaviest thing she could lift was a gallon of milk or a ten pound bag of potatoes. Her husband had a dog, but she could not lift a bag of dog food. She buttoned buttons, opened doorknobs, and car doors. She wore slip-on shoes because she could not get her legs up to tie her shoes. The plaintiff smoked, but she did not have any breathing problems (Tr. 62-65).
The plaintiff testified that she spent a couple of hours daily in a recliner or lying down. She spent four hours a day lying down in order to relieve pain. The plaintiff did not know if her pain was due to her fibromyalgia or her neuropathy. She said she suffered from anxiety and depression, which was caused by her medical issues and her financial problems. She testified that she was not taking medications for these conditions (Tr. 65-66).
The vocational expert classified the plaintiff's past relevant work as that of General Cashier II, specific vocational preparation ("SVP") of 2, light as it is generally performed. The vocational expert stated that a 12-pack of drinks weighed nine pounds and felt that the job was light as the plaintiff performed it as well (Tr. 46-47).
The ALJ proposed the following hypothetical to the vocational expert:
(Tr. 67-68).
The vocational expert testified that the individual could perform the plaintiff's past work as a cashier as it is generally performed and as it was performed by the plaintiff. The vocational expert stated that the need to avoid concentrated exposure to extreme cold would not be a problem because he considered the average stay in and out of coolers, and he did not think it was an extended amount of time (Tr. 68-69).
The ALJ asked the vocational expert to consider the same individual but with a limitation to sedentary instead of light work. The vocational expert stated that such an individual could not perform the plaintiff's past relevant work. The ALJ asked the vocational expert to consider the first hypothetical again, but with a limitation of being off task 20% of the workday. The vocational expert stated that such an individual could not perform any work in the national economy (Tr. 69-70).
The ALJ proposed another hypothetical individual:
(Tr. 70-71). The vocational expert testified that the described work activity was not gainful employment. The ALJ explained that the hypothetical individual would have to recline for two hours at a time for at least two times during the day. The vocational expert stated that the Dictionary of Occupational Titles did not address reclining, but it was virtually impossible for an employee to be able to recline and work. The vocational expert further testified that an individual who needed a cane to ambulate could not perform the plaintiff's past relevant work (Tr. 71-72).
The plaintiff argues that the ALJ erred by (1) failing to properly explain the RFC assessment, (2) failing to properly assess the medical opinion evidence, and (3) failing to properly consider her subjective complaints (doc. 13 at 13-24).
Social Security Ruling ("SSR") 96-8p provides in pertinent part:
SSR 96-8p, 1996 WL 374184, at *1. The ruling further provides:
Id. at *7 (footnote omitted). Further, "[t]he RFC assessment must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence." Id. Moreover, "[t]he RFC assessment must always consider and address medical source opinions. If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted." Id.
As set out in detail above, the ALJ determined that the plaintiff could perform a limited range of light work and, at step four of the sequential evaluation process, found that the plaintiff could perform her past relevant work as a General Cashier II (Tr. 26, 30). With regard to the RFC assessment, the plaintiff first argues that the ALJ failed to properly consider the findings from Dr. Schacher's consultative exam as required by SSR 96-8p (doc. 13 at 14-17). The ALJ noted the plaintiff's complaints to Dr. Schacher during the consultative examination and then summarized Dr. Schacher's examination findings as follows:
(Tr. 28) (citing Tr. 283-89).
Specifically, the plaintiff argues that the ALJ failed to consider several key findings in Dr. Schacher's report. The plaintiff first notes that the ALJ stated in the RFC assessment that the evidence did not show the plaintiff had significant strength deficits, but he failed to consider the plaintiff's weakened grip strength as documented by Dr. Schacher (doc. 13 at 15; see Tr. 30, 287). The Commissioner counters that the plaintiff's grip was only slightly weakened, and other evidence supports the ALJ's finding that the plaintiff had no significant strength deficits (doc. 14 at 17-18).
Next, the plaintiff argues that the ALJ stated that there were no references to back pain in the record without considering her report to Dr. Schacher that she had pain in her knees, ankles, and low back (doc. 15 at 16). The Commissioner counters that the ALJ stated only that there were no complaints or references to back pain "in the treating records" whereas Dr. Schacher was a one-time consultative examiner and not a treating physician (doc. 14 at 18) (citing Tr. 30) (emphasis added)). However, as noted by the plaintiff, she also complained of back pain to Ms. Parkinson (Tr. 304), a treating nurse practitioner.
The ALJ also did not mention Dr. Schacher's findings that the plaintiff had reduced range of motion of her lumbar spine and positive straight leg raising test on the right (doc. 13 at 15-16) (citing Tr. 30, 283-89). The Commissioner argues that the disputed portions of Dr. Schacher's evaluation are not so material as to preclude the court from finding that the decision was supported by substantial evidence as a whole, citing treatment records that showed normal musculoskeletal examinations (id. at 17-18). The Commissioner does not address the plaintiff's argument that the ALJ also erred in failing to discuss Dr. Schacher's findings that she had reduced left shoulder abduction and external rotation and reduced flexion of the right knee and bilateral hips (doc. 13 at 15) (citing Tr. 286).
Notably, in the RFC assessment, the ALJ found that the plaintiff could stand/walk six hours in an eight-hour workday; lift, carry, push, and pull 20 pounds occasionally and ten pounds frequently; "without limits reach bilaterally in all directions including overhead"; occasionally kneel; frequently stoop, crouch, balance, and climb stairs and ramps; and could frequently finger, feel, and handle (Tr. 26). While the undersigned agrees with the Commissioner that the ALJ is not required to discuss every piece of evidence in the record (doc. 14 at 17), "[t]he touchstone for determining what evidence must be addressed is whether the evidence is so material that failing to address it would prevent the court from determining if the ALJ's decision was supported by substantial evidence." Woodbury v. Colvin, 213 F.Supp.3d 773, 778 (D.S.C. 2016) (citing Seabolt v. Barnhart, 481 F.Supp.2d 538, 548 (D.S.C. 2007) ("The ALJ is not required to discuss every piece of evidence, but if he does not mention material evidence, the court cannot say his determination was supported by substantial evidence.")). Here, the findings in Dr. Schacher's evaluation that were not acknowledged or discussed by the ALJ do appear to be sufficiently material to warrant remand. The ALJ rather summarily dismissed the plaintiff's subjective complaints of back pain and need for a cane to balance and walk (Tr. 30), and the above findings in Dr. Schacher's evaluation of the plaintiff are relevant to that consideration. Moreover, the ALJ's failure to address the findings regarding the plaintiff's reduced left shoulder abduction and external rotation and slightly reduced grip strength prevents the court from determining if the RFC findings that she could "without limits reach bilaterally in all directions including overhead" and could frequently finger, feel, and handle are based upon substantial evidence. Accordingly, remand for further consideration of Dr. Schacher's findings in the consultative examination is warranted.
In light of the court's finding that this matter should be remanded for further consideration of the evidence discussed above, the court need not specifically address the plaintiff's remaining allegations of error as, on remand, the ALJ will be able to reconsider and re-evaluate the evidence as part of the reconsideration of this claim. Hancock v. Barnhart, 206 F.Supp.2d 757, 763-64 n.3 (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). However, as part of the overall reconsideration of this claim upon remand, the ALJ should consider and address the remaining allegations of error raised by the plaintiff, including that the ALJ erred in failing to adequately explain how an individual with moderate difficulties in social functioning could frequently interact with supervisors, co-workers, and the general public and could work well with people; in failing to properly consider the opinion of Ms. Parkinson, a nurse practitioner; in giving great weight to the opinions of the state agency physicians; and in failing to properly consider her subjective complaints (doc. 13 at 17-23).
Now, therefore, based on the foregoing, it is recommended that the Commissioner's decision be reversed pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be remanded to the Commissioner for further consideration as discussed above.
IT IS SO RECOMMENDED.
