SHIVA V. HODGES, Magistrate Judge.
This appeal from a denial of social security benefits is before the court for a Report and Recommendation ("Report") pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether she applied the proper legal standards. For the reasons that follow, the undersigned recommends that the Commissioner's decision be reversed and remanded for further proceedings as set forth herein.
On May 28, 2014, Plaintiff filed applications for DIB and SSI in which she alleged her disability began on April 1, 2013. Tr. at 173-83. Her applications were denied initially and upon reconsideration. Tr. at 66-120, 127-31. On July 14, 2016, Plaintiff had a hearing before Administrative Law Judge ("ALJ") Scott Shimer. Tr. at 28-65 (Hr'g Tr.). The ALJ issued an unfavorable decision on September 7, 2016, finding Plaintiff was not disabled within the meaning of the Act. Tr. at 10-27. Subsequently, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. Tr. at 1-7. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on November 20, 2017. [ECF No. 1].
Plaintiff was 36 years old at the time of the hearing. Tr. at 20, 30. She graduated high school. Tr. at 32. Her past relevant work ("PRW") was as a machine operator and production worker. Tr. at 59. She alleges she has been unable to work since April 1, 2013. Tr. at 173-83.
On August 17, 2012, Dr. Khan W. Li, M.D. ("Dr. Li"), at Neurological Associates provided a progress report, stating he had seen Plaintiff in 2010 and recommended surgery for cervical disc herniations and stenosis at that time. Tr. at 319-20. Dr. Li noted her magnetic resonance imaging ("MRI") demonstrated cervical degenerative disc disease ("DDD") with disc protrusions and stenosis at C4-C5 and C5-C6, but there was minimal disease and stenosis at C3-C4 and C6-C7. Id. Dr. Li recommended an anterior cervical discectomy and fusion procedure and scheduled Plaintiff for surgery. Id.
On August 24, 2012, Timothy Kuntz, P.A. ("Kuntz") at the office of Ralph H. Ruckle, M.D. ("Dr. Ruckle") evaluated Plaintiff for weight gain, neck pain, and anxiety, but noted all of these symptoms were alleviated by medications, phentermine, Lortab, and alprazolam. Tr. at 496-98. Kuntz noted Plaintiff was scheduled for surgery. Id.
On August 30, 2012, Plaintiff underwent a left-anterior cervical approach procedure for a C4-C5 and C5-C6 discectomy, an interbody arthrodesis at C4-C5 and C5-C6, and application of a machine-manufactured interbody biomechanical device at C4-C5 and C5-C6, with a Synthes advanced autocorrelation function ("ACF") graft and application of anterior hardware at C4-C6. Tr. at 312-14. Plaintiff tolerated the procedure well, awoke in a stable condition, and could move all extremities with good strength. Tr. at 314; see also Tr. at 334-40.
On September 21, 2012, cervical spine x-rays showed postoperative changes, stable position of hardware, and foraminal narrowing. Tr. at 305; Tr. at 290-91.
Also, on September 21, 2012, Kuntz evaluated Plaintiff for neck pain, anxiety, and weight gain, noting they were all alleviated by medication. Tr. at 492-95. Plaintiff reported her ex-boyfriend had stolen all of her hydrocodone pills, they got into a fight prior to her visit, and she only had three Percocet left. Id. Kuntz noted Plaintiff was very upset and cried during the visit. Id. He prescribed alprazolam, amitriptyline, citalopram, and Lortab, but noted he spoke with Dr. Li's office after the visit and was informed Plaintiff had a pain contract with them and an appointment was scheduled within five days. Id.
On September 26, 2012, Plaintiff presented to Dr. Li for a follow-up appointment after her procedure and reported a 5/10 pain level. Tr. at 332-33. Dr. Li noted she was making slow, but "definite progress." Id.
On September 27, 2012, Kuntz evaluated Plaintiff for neck pain and muscle pain. Tr. at 489-91. Plaintiff reported her neck pain was alleviated by Lortab and her muscle pain did not limit her activities. Id.
On October 24, 2012, Dr. Li evaluated Plaintiff for a two-month follow up after her procedure and noted her pain had decreased to 4/10 and she was eager to start physical therapy to increase the range of motion ("ROM") in her neck. Tr. at 330-31. Dr. Li ordered physical therapy and scheduled a follow-up appointment in one month. Id.
On October 30, 2012, Kuntz evaluated Plaintiff for anxiety and weight gain. Tr. at 486-88. Plaintiff reported both symptoms were alleviated by medication. Id.
On November 28, 2012, Plaintiff had a cervical spine x-ray that showed the hardware and bone plugs were stable and unchanged, alignment remained stable and unremarkable, and soft tissues were unremarkable, with no changes since the prior exam. Tr. at 304, 341. Dr. Li reviewed the x-ray and noted it demonstrated good placement. Tr. at 328-29. He also noted Plaintiff rated her pain as 5/10, with some neck and arm pain. Id. Dr. Li stated Plaintiff was "doing well," but did not start physical therapy due to deaths in her family so he would issue a new referral, "along with a release to return to work," and see her "once more in [three] months." Id.
On November 30, 2012, Kuntz evaluated Plaintiff for anxiety and back pain. Tr. at 483-85. Plaintiff reported her anxiety was stable, moderately limited her activities, occurred weekly, and was triggered by stress, but she only took her medication, alprazolam, when needed and this alleviated the symptom. Id. Plaintiff also reported back pain on her cervical spine with pain down both arms, but it was better since the surgery, ranging from moderate to severe. Id. Kuntz diagnosed cervical disc syndrome, neck pain, anxiety state (NOS), and obesity, and he prescribed alprazolam, baclofen, and phentermine. Id.
On January 2, 2013, Kuntz evaluated Plaintiff for neck pain, anxiety, and weight gain. Tr. at 480-82. Plaintiff reported each of these symptoms were alleviated by medication. Id. Plaintiff also reported it hurt to look down, cold weather was bad for her neck, and she had significant recent numbness in her left hand recently. Id. Kuntz diagnosed Plaintiff with neck pain, anxiety state, obesity, and numbness or tingling, and he prescribed medications, but discussed that she needed to lose weight to continue phentermine and would only receive sixty of the pain pills, as ordered by her surgeon. Id.
On January 30, 2013, Kuntz evaluated Plaintiff for anxiety, neck pain, numbness and tingling with pain in her right arm, and weight gain. Tr. at 477-79. Plaintiff reported her anxiety was agitated by stress, but it did not limit her activities and was alleviated by alprazolam. Id. She reported her neck pain occurred every day and was triggered by activities, but it did not limit her and was alleviated by Lortab. Id. She also reported her numbness and tingling had gotten worse and occurred daily, but moving her neck helped. Id. Finally, she reported her weight gain was alleviated by phentermine. Id. Kuntz prescribed alprazolam, baclofen, Lortab, and prednisone. Id.
On February 27, 2013, Kuntz evaluated Plaintiff for complaints of chronic neck pain, anxiety, and weight gain, but noted the symptoms were alleviated by heat application, medication, and a change in dietary habits. Tr. at 474-76. Kuntz noted Plaintiff had lost five more pounds and prescribed alprazolam, baclofen, Lortab, and phentermine. Id.
On April 2, 2013, Plaintiff presented to Kuntz for a follow up and reported her neck pain was better, but still painful. Tr. at 471-73. Kuntz refilled her baclofen, Lortab, and phentermine. Id.
On April 30, 2013, Kuntz evaluated Plaintiff for ongoing neck pain and anxiety, noting she had quit her job and was working for a temporary agency. Tr. at 468-70. Plaintiff reported her neck pain was alleviated by Lortab, physical therapy, and surgery. Id. She also reported she was registered for college classes and had stress related to her father's cancer, but her anxiety was alleviated by medication. Id. Kuntz prescribed alprazolam, baclofen, Lortab, Lyrica, and phentermine. Id.
On May 30, 2013, Dr. Ruckle evaluated Plaintiff for complaints of cervical spine pain that was aching, burning, constant, sharp, and stabbing. Tr. at 465-67. Plaintiff indicated her symptoms had been ongoing for years and radiated down her left arm. Id. Dr. Ruckle noted Plaintiff's symptoms moderately limited her activities and were constant, but alleviated by Lortab and Lyrica. Id. He found Plaintiff was tender in her neck, diagnosed cervical disc syndrome, anxiety state, and chronic neck pain, and prescribed Lortab and Lyrica. Id.
On June 18, 2013, Kuntz evaluated Plaintiff for neck pain that she reported began four days prior, moderately limited her activities, and prevented her from sleeping. Tr. at 458-61. Plaintiff reported having taken different medications that did not provide relief, her hands felt weak, and she had a constant sharp pain in her back with numbness and tingling. Id. Plaintiff also reported baclofen upset her stomach and made her drowsy. Id. Kuntz noted Plaintiff was overweight, tender to touch in her right lateral dorsi, and had decreased flexion and rotation in her neck, but her cervical spine was not tender. Id. Kuntz administered a steroid injection and prescribed Percocet and Soma. Id.; Tr. at 289.
On June 18, 2013, Plaintiff had a cervical MRI that showed bilateral C6 foraminal stenosis and a thoracic MRI that showed mild thoracic scoliosis. Tr. at 302-03.
On June 28, 2013, Plaintiff reported anxiety and neck pain that was burning, constant, sharp, stabbing, and throbbing. Tr. at 454-57. She indicated her neck pain had improved for four days after taking Percocet and Soma, but had returned and her symptoms moderately limited her activities. Id. Plaintiff further reported her neck pain was alleviated by Lortab and her anxiety was alleviated by medication. Id. Kuntz found Plaintiff had decreased flexion and painful ROM in her cervical spine, decreased right shoulder extension due to pain, decreased grip strength in her right hand, and pain in her right paravertebral region, but good bicep and tricep strength. Id. Kuntz prescribed alprazolam, baclofen, Lortab, and prednisone. Id.
On July 30, 2013, Kuntz evaluated Plaintiff for complaints of neck pain that was exacerbated by activity and anxiety that was alleviated by medication. Tr. at 452-53. Plaintiff reported pain down her right arm and increased weakness, but she no longer had burning pain, only tingling and numbness. Id. Plaintiff also reported the prednisone pack had been helpful. Id. Kuntz prescribed Lortab. Id.
On July 31, 2013, Dr. Li evaluated Plaintiff and noted a year had passed since he performed her cervical fusion. Tr. at 324-25. He also noted Plaintiff had done well initially, but developed neck, right shoulder, and arm pain over the subsequent months. Id. Plaintiff reported her pain as 7/10 and worsened with sitting, standing, bending forward, and walking. Id. Dr. Li found Plaintiff had decreased ROM in her right upper extremity with numbness extending up from her shoulder and the first three digits in her right hand. Id. Dr. Li assessed cervical DDD and stenosis, but noted Plaintiff's x-rays showed a stable fusion and ordered an MRI. Id.; Tr. at 288. Dr. Li noted he would likely recommend physical therapy if the MRI did not reveal cervical disc herniation with resulting stenosis. Id.
On August 8, 2013, a cervical MRI showed no evidence of hardware failure with significantly improved central canal stenosis after a multi-level discectomy, very mild DDD at C6-C7, and no significant central canal stenosis or foraminal stenosis, with no radiographic abnormality to explain her right shoulder pain. Tr. at 298-99, 326-27, 342-43.
On August 28, 2013, Kuntz evaluated Plaintiff for neck pain, headaches, and anxiety. Tr. at 449-51. Plaintiff reported her neck pain was ongoing, but alleviated by Lortab and baclofen. Id. Plaintiff also reported her anxiety was alleviated by Xanax. Id. Kuntz prescribed alprazolam, baclofen, Lortab, and Lyrica. Id.
On September 30, 2013, Kuntz evaluated Plaintiff for complaints of ongoing anxiety and neck pain that was triggered by activity, bending, lifting, and twisting. Tr. at 446-48. Plaintiff reported she had not seen Dr. Li due to transportation issues, but still experienced arm weakness. Id. Kuntz diagnosed anxiety state, chronic pain syndrome, and cervical disc syndrome. Id. Kuntz prescribed alprazolam, baclofen, and Lortab. Id.
On October 28, 2013, Kuntz evaluated Plaintiff for neck pain, weight gain, and anxiety. Tr. at 442-45. Plaintiff reported daily pain that radiated down both of her arms and complained of weight gain, and tiredness. Id. Plaintiff also reported her anxiety was stable with medications, but it moderately limited her activities and was alleviated by alprazolam. Id. Plaintiff's neck pain was ongoing and moderately limited her activities, but was alleviated by Lortab. Id. Kuntz prescribed alprazolam, baclofen, and Lortab and ordered bloodwork. Id.
On December 4, 2013, Kuntz evaluated Plaintiff for anxiety, neck pain, and weight gain. Tr. at 439-41. Plaintiff reported increased migraines and increased pain and numbness in her arms, without cause. Id. Kuntz prescribed alprazolam, baclofen, Lyrica, Maxalt, Norco, and phentermine. Id.
On January 2, 2014, Kuntz evaluated Plaintiff for anxiety, neck pain, and weight gain. Tr. at 436-38. Plaintiff indicated she had an appointment with Dr. Li the following month, but Kuntz noted Dr. Li's office stated she had not been seen since July, missed her September appointment, and did not have a future appointment scheduled. Id. Kuntz continued Plaintiff's medications, provided a tapered dose of Norco, and instructed her to follow up with Dr. Li, noting she may need a referral for pain management. Id.
On January 29, 2014, Plaintiff presented to Kuntz for a follow up and reported her anxiety was stable and alleviated by medication, but had increased due to stress, as she started taking classes and assisting her parents. Tr. at 433-35. Plaintiff reported taking ibuprofen and Tylenol for pain without relief. Id. Kuntz provided Plaintiff with samples of Cymbalta and refilled her alprazolam, as approved by Dr. Ruckle. Id.
On February 7, 2014, Dr. Li evaluated Plaintiff, noting he had performed a fusion procedure approximately two years prior, she "did well following that procedure," and he had not seen her in six months. Tr. at 321-23. Plaintiff reported intermittent neck pain, right upper extremity pain and numbness, muscle spasms in her thoracic region, occasional numbness in her left hand, and low back pain. Id. Plaintiff rated her pain as a 7/10 and indicated it increased when sitting or lying down. Id. Dr. Li reviewed Plaintiff's diagnostic tests that indicated a solid fusion, minor degeneration at C6-C7, and straightening of the cervical lordosis. Id. Dr. Li indicated Plaintiff had a normal gait and normal strength in her upper extremities, but decreased sensation in C6-C7 and decreased ROM in her neck. Id. Dr. Li assessed cervical DDD and stenosis, indicating he was unsure of the cause for pain in her right side, but it may be chronic radicular pain as she waited several years before having surgery. Id. Dr. Li recommended an electromyograph ("EMG") and nerve conduction study. Id.
On February 20, 2014, Plaintiff underwent an EMG and nerve conduction study that showed chronic right C5 radiculopathy consistent with her history of cervical spine surgery, noting it "may persist indefinitely," and mild bilateral median neuropathy at the wrist (carpal tunnel syndrome), but no evidence of acute cervical radiculopathy. Tr. at 344-51, 735-39.
On February 26, 2014, Plaintiff presented to Kuntz and reported constant neck pain that was aching, burning, stabbing and throbbing, triggered by activity and weather, and alleviated by medication. Tr. at 430-32. She complained of intermittent right wrist pain, left shoulder pain, and headaches. Id. Plaintiff indicated her headache medication, Maxalt, "help[ed]," but it "knock[ed] her out." Id. Kuntz diagnosed cervical disc syndrome, anxiety state, and obesity, and he provided additional samples of Cymbalta. Id.
On March 12, 2014, Amy Bowser, N.P.C. ("Nurse Bowser"), of Comprehensive Pain Specialists evaluated Plaintiff for complaints of headaches and neck, low back, and arm pain. Tr. at 382-85. Plaintiff reported neck pain for five years, new lower back pain, and occasional migraines. Id. She reported her pain fluctuated in intensity, but was constantly present. Id. Nurse Bowser noted Plaintiff's previous treatment included medication trials, injections, and surgery. Id. She also noted Plaintiff's cervical spine ROM was limited in all directions and produced moderate pain, lumber ROM produced pain with diffuse tenderness throughout the lumbar region. Id. Plaintiff also had tenderness over her right trapezius and diminished right-upper extremity palpation. Id. Nurse Bowser diagnosed neck, radicular, and low back pain, cervical DDD, and muscle spasm; obtained a urine drug screen; and prescribed Percocet, baclofen, and Neurontin. Id.; Tr. at 394-401, 407-20.
On April 9, 2014, Plaintiff presented to Nurse Bowser and complained of headaches and neck, low back, and right arm pain that was throbbing, stabbing, burning, stinging, and causing her to sleep poorly. Tr. at 377-81. Plaintiff reported her pain was worsened by changing positions, bending, stooping, walking, and using her arms to lift or carry, but her pain was improved by lying on her side or back and sitting. Id. Plaintiff also reported her Percocet worked well, but only lasted two to three hours. Id. Nurse Bowser indicated Plaintiff was pleasant, cooperative, and had an average risk for medication misuse. Id. Plaintiff's physical examination revealed the same areas of pain and tenderness as her prior exam, and Nurse Bowser provided the same assessments. Id. Nurse Bowser prescribed Percocet, Neurontin, baclofen, and MS Contin and recommended MRI imaging. Id.; Tr. at 287, 402-04.
On April 24, 2014, a lumbar MRI showed no evidence of disc herniations or canal stenosis, minimal disc bulges and facet arthrosis contributing to lateral recess narrowing most significantly at L4-5, with potential early compression of the L5 nerve roots and mild degenerative disc and facet changes at L3-L4. Tr. at 296-97.
On May 7, 2014, Nurse Bowser evaluated Plaintiff for headaches and neck, low back, right arm, and leg pain. Tr. at 372-76. Plaintiff reported increased low back pain with radicular symptoms in her lower extremity and her back "lock[ed]" up when standing or bending over. Id. Plaintiff also reported minimal relief with her medications, and it was noted she had overused her Percocet. Id. Nurse Bowser indicated Plaintiff's cervical spine ROM was limited in all directions and produced moderate pain. Id. She also indicated Plaintiff had decreased sensation to light palpation and 4/5 strength in her right upper extremity. Id. Nurse Bowser noted Plaintiff had pain with lumbar ROM and diffuse tenderness throughout her lumbar region, with mildly guarded muscle spasms, and intact lower extremity strength. Id. Nurse Bowser added Mobic to Plaintiff's medications. Id.; Tr. at 392-93, 405-06.
On May 22, 2014, Plaintiff underwent a lumbar interlaminar epidural steroid injection. Tr. at 370-71.
On June 5, 2014, Laura Hoormann, A.P.R.N. ("Nurse Hoormann"), at Comprehensive Pain Specialists evaluated Plaintiff for a pain management follow up. Tr. at 366-69. Plaintiff reported the first injection relieved some pressure, the medication provided moderate relief, and her pain was constantly at 6/10. Id. She indicated Plaintiff's medication counts were appropriate, but she was one and a half days short of Percocet for the second time. Id. Plaintiff's medications were continued with increased doses of MS Contin and Neurontin. Id. Plaintiff also underwent a lumbar injection. Tr. at 363-65.
On June 19, 2014, Plaintiff underwent another injection. Tr. at 361-62.
On July 1, 2014, Arthur Schiff, M.D. ("Dr. Schiff"), a state agency consultant completed a physical residual functional capacity ("RFC") assessment. Tr. at 70-72, 78-80. He indicated Plaintiff had the following limitations: occasionally lift, carry, push or pull twenty pounds; frequently lift, carry, push, or pull ten pounds; stand, walk, or sit with normal breaks for about six hours; occasionally climb ladders, ropes, or scaffolds, stoop, kneel, crouch, and crawl; frequently climb ramps or stairs and balance. Tr. at 70-71. In addition, he opined Plaintiff was limited to occasionally reaching overhead with her upper extremities. Tr. at 71.
On July 3, 2014, Nurse Bowser evaluated Plaintiff, who reported the lumbar injections assisted her with pain control. Tr. at 357-60. Plaintiff also reported her pain was 6/10 and increased by lying on her back, sitting, transitioning from sitting to standing, stooping, bending, walking, and lifting or carrying small loads, but improved by lying on her side and stretching. Id. Nurse Bowser continued Plaintiff's medications. Id. Tr. at 389-91.
On July 23, 2014, Kuntz evaluated Plaintiff for follow up of a thyroid nodule. Tr. at 427-29. Plaintiff reported tiredness, inability to lose weight, back pain, and anxiety. Id. Kuntz ordered blood work and an ultrasound. Id.
On September 5, 2014, Nurse Bowser evaluated Plaintiff for complaints of low back, arm, right leg, and neck pain with headaches. Tr. at 352-56. Plaintiff reported constant pain at 7/10, but "pain medications [we]re adequate for pain." Id. Plaintiff also reported continued stress related to traveling to assist with the care of her father, who was ill. Id. Nurse Bowser obtained a drug screen and refilled Plaintiff's medications, such as Percocet, Neurontin, baclofen, MS Contin, and Mobic. Id.; Tr. at 386-388.
On October 31, 2014, Kuntz evaluated Plaintiff for eye discharge, toothache, ear infection, neck pain, and stress. Tr. at 421-23. Plaintiff reported increased anxiety, depression, and no desire to leave her house. Id. Kuntz prescribed alprazolam and Cymbalta. Id.
On December 17, 2014, Linda Blazina, Ph.D. ("Dr. Blazina"), performed a consultative examination of Plaintiff. Tr. at 635-39. Plaintiff appeared to provide reliable information during the interview and reported being unable to work due to neck and back damage. Tr. at 635. Plaintiff felt anxious with more distinct episodes in which "at least once a week [she] got short of breath, [her] chest [became] tight, [her] heart race[d], and [she became] real lightheaded." Id. She reported it had "been going on for a few years," resulted in crying spells and sleep disturbance, caused her to avoid people, feel irritable, hopeless, and worthless. Id. She noted she was tired, with chronic pain issues. Id. Plaintiff also reported her anxiety and depression had worsened, but she had never received mental health treatment. Id. Plaintiff stated "she completed almost two semesters of college," but "quit because of [her] physical limitations." Tr. at 637. Plaintiff stated she underwent neck surgery two years prior, but had "lower back disc damage, neck damage, migraines, numbness, and weakness." Id.
Dr. Blazina noted Plaintiff's gait was independent, but slow. Id. She also noted Plaintiff was alert, fully cooperative with the examination, her mood and affect were dysphoric, and she "seemed somewhat anxious during the evaluation." Tr. at 636. Plaintiff's receptive and expressive language skills were not impaired and her thought processes were logical and coherent with no impairment in her reality testing. Id. Dr. Blazina noted Plaintiff was oriented to time, person, place, and situation, her "memory functioning [did] not appear impaired," "[h]er attention and concentration skills during the evaluation were within normal range," "[h]er insight and judgment appeared to be adequate," "[h]er abstracting abilities and general fund of information [were] average," and her "intellectual functioning [was] estimated to be in the average range." Id. Regarding her activities of daily living ("ADLs") and functional abilities, Dr. Blazina noted Plaintiff enjoyed reading fiction, but did not shop often, did not engage in any community activities, did minimal chores around the house and, if she did "anything around the house, [she had] to really pace herself." Tr. at 637-38. Dr. Blazina's diagnostic impressions were panic disorder and persistent depressive disorder. Tr. at 638.
Dr. Blazina's mental assessment of Plaintiff's ability to engage in work-related activities provided,
Tr. at 638.
On December 22, 2014, Jenaan Khaleeli, Psy. D. ("Dr. Khaleeli"), a state agency psychologist completed a psychiatric review technique ("PRT") assessment and mental RFC assessment.
Tr. at 91. However, Dr. Khaleeli noted she gave Dr. Blazina's report great weight and it was well supported. Id. Dr. Khaleeli also noted Plaintiff did not have understanding and memory limitations or sustained concentration and persistence limitations, but did have social interaction limitations—she was moderately limited in her ability to interact appropriately with the public and accept instructions and respond appropriately to criticism from supervisors— with adaptation limitations—she was moderately limited to respond appropriately to changes in the work setting. Tr. at 95-96. Dr. Khaleeli concluded,
Tr. at 96.
On January 6, 2015, Kuntz evaluated Plaintiff for a follow up and continued her treatment regime. Tr. at 644-46.
On May 21, 2015, Kuntz evaluated Plaintiff for weight gain and anxiety. Tr. at 652-54. Plaintiff reported a change in her diet, and Kuntz prescribed hydroxyzine and phentermine. Id.
On May 22, 2015, Son D. Le, M.D. ("Dr. Le"), of the Center for Spine, Joint and Neuromuscular Rehabilitation evaluated Plaintiff for low back pain that radiated into her legs and occasional numbness. Tr. at 672-75, 740-46. Plaintiff reported her legs gave out on her, and she had muscle spasms in her mid-back and continued neck pain that radiated down her arm. Id. Plaintiff reported the pain began seven years prior and was caused "by normal aging." Id. Plaintiff also reported her pain was at 9/10, constant, and sharp, and sitting or lying down helped ease her pain. Id. Dr. Le reviewed her histories and noted she was discharged from Comprehensive Pain Specialists due to an inconsistent drug screen. Id.
He found Plaintiff's gait and station to be normal and a normal ROM of the cervical spine, ribs, and pelvis, with no tenderness to palpation ("TTP"), but she had trigger points and taut bands in her cervical paraspinal and trapezius muscles, and TTP in her lumbar paravertebral paraspinal muscles, as well as decreased flexion, extension, and rotation with pain. Id. Dr. Le found Plaintiff had a positive bilateral facet loading, sacroiliac joint pain on the right, shoulder joint tenderness, Neer shoulder impingement, and straight leg raise ("SLR") test in her right leg. Id. Dr. Le noted Plaintiff's Osweatry Disability Score of 52%, indicating severe disability, with limitations due to pain of sitting, standing, walking, bending, pulling, and twisting. Tr. at 672. Dr. Le also noted Plaintiff's mental exam revealed she was oriented to time, place, and person, her memory was intact for recent and remote events, and she had no depression, anxiety, or agitation. Tr. at 674.
Dr. Le diagnosed cervical post-laminectomy syndrome, unspecified musculoskeletal disorders and symptoms referable to the neck, other specified disorders (such as rotator cuff syndrome of the shoulder and allied disorders), back pain, lumbar stenosis and degeneration, questionable lumbar radiculopathy, sacroiliac joint dysfunction, and other pain disorder related to psychological factors. Id. Dr. Le obtained a urine drug screen, reviewed the controlled substance monitor program, scheduled trigger-point injections, ordered physical therapy, and prescribed tizanidine, meloxicam, gabapentin, lactulose, oxycodone, and morphine sulfate. Id.
On June 29, 2015, Asha Vishnagara, P.A. ("Vishnagara"), at the Center for Spine, Joint and Neuromuscular Rehabilitation (Dr. Le's office) evaluated Plaintiff for complaints of neck and back pain that was stabbing, sharp, shooting, and pinpoint with numbness. Tr. at 747-49. Vishnagara found Plaintiff had paravertebral TTP and trapezius muscle pain to palpation, but found normal ROM for her cervical spine with no TTP. Id. She noted Plaintiff's diagnoses were unchanged and continued her current medications. Id. She also noted Plaintiff was scheduled to begin physical therapy the following week and administered trigger-point injections. Id.
On July 3, 2015, Kuntz evaluated Plaintiff for complaints of left thumb pain that began with an injury a couple of months prior that prevented her from bending it. Tr. at 655-57. Kuntz found tenderness and painful ROM in Plaintiff's thumb and prescribed phentermine for weight loss. Id.
On July 6, 2015, Plaintiff had x-rays of her left hand that showed no acute osseous abnormality. Tr. at 690.
On July 24, 2015, Jane M. Siegel, M.D. ("Dr. Siegel"), evaluated Plaintiff for complaints of thumb pain that occurred several months prior when she had done "a lot of activity" and "felt a pop." Tr. at 676-78. Plaintiff reported she had been unable to move her thumb and complained of swelling. Id. Dr. Siegel noted Plaintiff had decreased ROM in her left thumb, but good stability without locking or catching. Id. She also noted good ROM in Plaintiff's neck, shoulders, elbows, wrists, and hands, except for her left thumb. Id. Dr. Siegel found mild tenderness in Plaintiff's carpometacarpal ("CMC") joint, without instability, and negative crank and grind maneuvers. Id. She diagnosed spontaneously relocated dislocation of the left thumb, provided a comfort split, and advised therapy for increasing its ROM and strength. Id.
On July 28, 2015, Vishnagara evaluated Plaintiff, who reported her average pain was 6/10 and physical therapy had helped a little. Tr. at 750-52. Plaintiff also reported the trigger point injections were helpful and her medication regimen was working and did not require any changes, but the medications caused excessive drowsiness. Id. Vishnagara advised Plaintiff to continue her ADLs and avoid bed rest. Id. Vishnagara also indicated Plaintiff had lumbar paravertebral paraspinal muscle TTP and a positive facet loading test, but normal ROM in her thoracic and lumbar spine with no TTP. Id. Vishnagara noted Plaintiff had lumbosacral spondylosis with facet syndrome and chronic pain syndrome, ordered an MRI due to ongoing pain, continued her medications and physical therapy, and noted a lumbar medial branch block may be considered. Id.
On August 13, 2015, an MRI of Plaintiff's lumbar spine showed congenital lumbar stenosis and acquired central spinal stenosis at L3-L4 and L4-L5 from disc bulges. Tr. at 691-92, 753-55.
On August 25, 2015, Vishnagara evaluated Plaintiff for neck and back pain and reviewed her recent MRI. Tr. at 756-58. Vishnagara noted Plaintiff had ongoing axial back pain with some radiation into her posterior right leg up to her knee. Id. Plaintiff reported her average pain level was 6/10 and her medication regimen was working. Id. Vishnagara noted Plaintiff had lumbar paravertebral paraspinal muscle TTP and positive bilateral facet loading, but normal ROM of her thoracic and lumbar spine with no TTP and her memory was intact for recent and remote events. Id. Vishnagara continued Plaintiff's current treatment regime, including oxycodone and morphine, recommended regular exercise, advised her of home therapy exercises, and scheduled a branch block, as it was "considered medically necessary in order to properly identify [the] source of [her] pain." Id.
On September 30, 2015, Plaintiff presented to Kuntz and reported gaining half a pound, but she felt she was doing good in physical therapy and lost inches on her waist. Tr. at 658-60. Plaintiff complained of insomnia, neck pain, and anxiety, and Kuntz recommended Plaintiff increase her aerobic activity with walking or swimming and refilled her phentermine. Id.
Also on September 30, 2015, Shamolie Wyckoff, M.D. ("Dr. Wyckoff"), at the Center for Spine, Joint and Neuromuscular Rehabilitation (Dr. Le's office) evaluated Plaintiff for neck pain, continued her pain medication, and administered a facet medial branch nerve block under fluoroscopic guidance. Tr. at 759-61. She noted the post-procedure diagnosis remained spondylosis without myelopathy or radiculopathy in the lumbar region. Id.
On October 29, 2015, Vishnagara evaluated Plaintiff for back and neck pain. Tr. at 762-65. Plaintiff reported the nerve blocks provided some pain relief fifteen minutes after the procedure was completed and she wanted to try lumbar radiofrequency ablation, but her pain remained unchanged since the last appointment. She stated she received only fifty percent of short-term relief from the procedure and subsequently had increased neck pain with severe pain that radiated down her arms. Id. She also reported her medication regime worked and only caused constipation as a side effect. Id. Vishnagara noted Plaintiff's prior drug screen was consistent with her medications. Id. Vishnagara indicated Plaintiff had lumbar paravertebral paraspinal muscle TTP and positive bilateral facet loading, but normal ROM in her thoracic and lumbar spine with no TTP. Id. She also noted Plaintiff had new issues with cervical radiculopathy. Id. Vishnagara continued her medications and scheduled radiofrequency ablation. Id.
On November 10, 2015, Plaintiff presented to Kuntz for headaches and obesity. Tr. at 661-63. She reported her migraines had increased in severity, but her pain management doctors had prescribed prednisone that helped them. Id. Kuntz prescribed Maxalt and phentermine. Id.
On November 12, 2015, an MRI of Plaintiff's cervical spine showed postsurgical changes, degenerative changes at C3-C4 and C6-C7 (without clear nerve root compression), and diffuse bulging of the intervertebral disc at C6-C7 that was slightly more prominent than her 2013 examination. Tr. at 693-94, 766-67. An MRI of her lumbar spine revealed congenital lumbar spinal stenosis and acquired central spinal stenosis at L3-L4 and L4-L5 from disc bulges. Tr. at 722-25.
On November 30, 2015, and December 17, 2015, Plaintiff underwent medial branch nerve blocks and L5 dorsal rami radiofrequency ablations. Tr. at 768-72.
On December 30, 2015, Cristina Burks, N.P. ("Nurse Burks"), at the Center for Spine, Joint and Neuromuscular Rehabilitation (Dr. Le's office) evaluated Plaintiff for neck and back pain. Tr. at 773-75. Plaintiff reported she felt "amazing" after her ablations, but her right side was "still horrible." Id. Nurse Burks noted Plaintiff's insurance company had denied her Lidoderm patch prescription and her drug screen was inconsistent with morphine. Id. Nurse Burks warned further violation of the pain management agreement would result in discharge from the clinic, but continued Plaintiff's medications. Id. Plaintiff's test results from this visit detected a prescription drug not prescribed to her. Tr. at 777. However, Dr. Le's office later sent Plaintiff a notice of treatment discontinuation that stated, "Due to our contract with AmeriChoice ending, this letter is to formally release you from the care of the Center for Spine, Joint, and Neuromuscular Rehabilitation . . . . It has been a pleasure and privilege to have served your medical needs." Tr. at 778.
On January 26, 2016, Plaintiff presented to Kuntz and indicated she stopped seeing Dr. Le because his office stopped taking her insurance. Tr. at 664-67. Plaintiff reported a lot of pain in her cervical and lumbar regions, arm, right leg, neck, and back. Id. She also reported a lot of anxiety, intermittent fatigue, and intermittent depression. Id. Kuntz found Plaintiff had pain over her right cervical region, and he diagnosed cervical disc disorder with radiculopathy unspecified, thoracic spine pain, and chronic pain syndrome. He prescribed Embeda, gabapentin, hydroxyzine, Mobic, oxycodone, and tizanidine. Id. Kuntz emphasized he was only providing one month of pain medication because Plaintiff was being referred to a new clinic. Tr. at 666.
On March 1, 2016, Jaquetta Wolf-King, N.P. ("Nurse Wolf-King"), at White House Pain Institute evaluated Plaintiff for lower back and neck pain. Tr. at 680-86; 716-21, 733-34. Plaintiff reported a long history of pain that gradually worsened over the years and increased with sitting, standing, and walking for long periods, with a current pain level of 6/10. Id. Nurse Wolf-King found Plaintiff to have TTP in her cervical and lumbar spine with moderately limited ROM in her cervical spine, but her gait was within normal limits and she had full ROM in all extremities. Id. Nurse Wolf-King diagnosed uncomplicated opioid dependence, lumbago, cervicalgia, displacement of cervical and lumbar intervertebral discs, cervical region fusion of the spine, cervical and lumbar DDD, and lumbar spinal stenosis. Id. Nurse Wolf-King obtained a urine drug screen and prescribed oxycodone, Embeda, tizanidine, gabapentin, and meloxicam. Id.
On March 15, 2016, Nurse Wolf-King evaluated Plaintiff, who reported constant pain in her lower back, the pain from her neck into her right arm had worsened, and her right-hand numbness had significantly worsened. Tr. at 712-15. Plaintiff also reported her pain increased with sitting, standing, and walking for long periods, but it was better when she was on her side, sat in heated car seats, or took hot baths. Id. Nurse Wolf-King found Plaintiff to have TTP in her cervical and lumbar spine and refilled her medications, noting she was "doing well" and her pain had improved since starting treatment. Id.; Tr. at 731-32.
On April 14, 2016, Nurse Wolf-King evaluated Plaintiff, who reported constant pain that ranged between 6/10 to 7/10, and the numbness and pain in her right hand had become significantly worse. Tr. at 708-11. Nurse Wolf-King found Plaintiff to have TTP in her cervical and lumbar spine, and continued her current medications. Id.; Tr. at 729-30.
On May 12, 2016, Nurse Wolf-King evaluated Plaintiff, who reported constant pain at 6/10 that had radiated down her right leg more often since her prior visit, caused the toes on her left to go numb, and impacted her neck. Tr. at 704-07. Nurse Wolf-King noted Plaintiff had full ROM in all limbs, but TTP in her cervical and lumbar spine. Id. She also noted Plaintiff brought proof she had obtained a massage as alternative treatment, she used a back brace, and reported "doing well" on her current medications so no changes were made, but she was cautioned to bring all remaining medications to her visits because her pill count was not consistent. Id.; Tr. at 726-28.
On May 23, 2016, Kuntz evaluated Plaintiff, who reported she did not care for her new pain management doctor, as her medications made her drowsy, the facility would not complete disability paperwork, and she was advised to request her primary care doctor complete the paperwork. Tr. at 668-71. Plaintiff complained of cervical spine and lumbar pain, lower cervical and shoulder weakness, numbness, headaches, fatigue, and dropping items with her right arm and hand. Id. Plaintiff reported her impairments moderately limited her activity, but, at times, it was incapacitating. Id. Plaintiff also reported her back pain caused her right leg to be weak and give out and her pain was triggered by bending, lifting, twisting, exertion, and position change. Id. Kuntz noted Plaintiff was unable to stand for long periods or bend over without severe pain in her right leg. Plaintiff's weight had increased to 194 pounds such that she was obese. Id. Kuntz found Plaintiff had decreased cervical and lumbar ROM, decreased ROM and weakness in her right shoulder, and decreased grip strength in her right hand. Id. He suggested Dr. Le or Dr. Li's records could be obtained to better serve her disability claim. Id.
On May 26, 2016, Nurse Wolf-King evaluated Plaintiff for a pain management follow up. Tr. at 700-03. Plaintiff complained of constant lower back pain that radiated down her right leg at a 6/10 level. Id. Plaintiff reported numbness in her hands and toes on her left foot, weakness in her right leg, and baclofen caused headaches. Id. Nurse Wolf-King found Plaintiff had TTP in her cervical and lumbar spine, noted she had undergone massage therapy and used a back brace, and refilled her medications after reviewing them. Id.
At the hearing on July 14, 2016, Plaintiff testified she had completed the twelfth grade and attempted to attend college when she could not return to work, but was unable to complete the assignments and did not finish a semester. Tr. at 32.
Plaintiff testified she previously worked full-time as a machine operator manufacturing boxes. Tr. at 33-34. She also worked for a company that manufactured plastics, where she served as a team leader or production worker. Tr. at 34-35, 39. She explained the manufacture of plastics was "very fast moving" and required her to lift up to 55 pounds. Tr. at 35-36. Her last attempt to work failed because she was unable to "do the work," such as lifting or assembly. Tr. at 36-38. Plaintiff explained she had relied on family for support since that time. Tr. at 38-39.
Plaintiff testified her doctor, Dr. Li,
Plaintiff explained she had pain in her neck that caused a constant headache, and the pain radiated down her shoulder and right arm, causing numbness and weakness. Tr. at 44. Plaintiff testified the numbness and weakness caused her to drop items constantly and, at times, she could not perform simple functions such as buttoning or zipping her pants. Tr. at 44. Plaintiff clarified she primarily had issues with her right, dominant hand and injured her thumb when it caught as she picked up her son's backpack one day. Tr. at 48-49. Plaintiff explained using her hand, lifting items, sitting for long periods of time, and moving her neck aggravated her hand, arm, and neck issues. Tr. at 47. Plaintiff explained she had severe pain in her back that radiated down her right leg, with numbness in her left toes. Tr. at 50. She explained "[e]verything" aggravated her back and she was unable to stand for a very long time, or sit, bend, and walk for a short amount of time. Tr. at 51. Plaintiff testified she obtained some relief from her symptoms when she sat in her recliner to take the pressure off her neck or took her medications. Id.
She explained she spent approximately fifty to sixty percent of her time in a recliner. Tr. at 52. She could not lift more than ten pounds, spend more than thirty minutes on her feet, or sit more than an hour at a time. Tr. at 52-53. Plaintiff testified she could read in her recliner during the day and do some housework, such as small loads of laundry and light cooking. Tr. at 53. She explained her boyfriend or fifteen-year-old son did the "heavy cleaning," such as vacuuming, mopping, or scrubbing, switched the laundry from the washer to the dryer, drove her to the grocery store on occasion, did their own dishes, and her son cooked dinner or larger meals. Tr. at 53-54.
Plaintiff testified she took oxycodone, Embeda (morphine), Meloxicam, gabapentin, and Tizanidine that helped reduce her pain from 8/10 to 5/10, but caused her to be "very loopy, very sleepy, [and] drowsy." Tr. at 45. Plaintiff explained her first pain management clinic "fired" her, her second pain management clinic released her due to insurance, and she had attended the White House Pain Clinic since that time. Tr. at 45-46.
The ALJ clarified with Plaintiff that she had recently moved from Tennessee to South Carolina to live with a relative and confirmed she had driven herself from South Carolina to the hearing in Tennessee. Tr. at 55-56. Plaintiff explained she was able to do so because she stopped at least every hour to stretch and take extensive breaks. Tr. at 55-56.
Vocational Expert ("VE") Charles Wheeler testified at the hearing. Tr. at 58-63. The VE categorized Plaintiff's PRW as a die cutter (machine operator), Dictionary of Occupational Titles ("DOT") number 699.682-022, as medium exertional level with a Specific Vocational Preparation ("SVP") of 4, and production worker, DOT number 706.687-010, as light with an SVP of 2. Tr. at 59. The ALJ described a hypothetical individual of Plaintiff's age, education, and vocational profile, who was limited to light work and could occasionally balance, stoop, kneel, crouch, crawl, climb ramps and stairs, reach overhead (bilaterally), and frequently handle and grasp with the right upper dominant extremity, but could not climb ladders, ropes or scaffolding. Tr. at 59-60. In addition, the individual could only occasionally interact with the general public with occasional workplace changes. Id. The ALJ inquired whether the individual would be able to perform Plaintiff's PRW or whether other jobs would be available. Tr. at 60. The VE testified the hypothetical individual would not be able to perform Plaintiff's PRW, but could perform unskilled work, all with an SVP of 2, as a routing clerk, DOT number 222.587-038, order caller, DOT number 209.667-014, and office helper, DOT number 239.567-010. Tr. at 60-61. The VE testified there were 123,000 jobs, 115,000 jobs, and 27,000 jobs available nationally, respectively. Id.
The ALJ posed a second hypothetical with the same limitations, but a reduced exertional level of sedentary. Tr. at 61. The VE responded the individual would be able to perform unskilled work, all with an SVP of 2, as a document preparer, DOT number 249.587-018, call-out operator, DOT number 237.367-014, and charge-account clerk, DOT number 205.367-014, with 48,000 jobs, 35,000 jobs, and 36,000 jobs available nationally, respectively. Id.
The ALJ posed a third hypothetical with the same limitations, but modified the restriction to frequent handling and grasping bilaterally, "as opposed to just the right upper extremity" and inquired if this would affect the jobs available. Tr. at 61. The VE responded this modification would not change the jobs available because "[n]one of the jobs cited require[d] more than frequent handling, grasping, and fingering." Id.
The ALJ posed a fourth hypothetical to inquire whether the modification to occasional handling and grasping bilaterally would eliminate the jobs available, to which the VE responded it would eliminate all the jobs listed, except the call-out operator position. Tr. at 61-62.
The ALJ posed a fifth hypothetical, returning to the modification that allowed frequent handling and grasping, but adding the individual needed to lie down or take a break for at least two additional fifteen-minute breaks during the workday and inquired if there would be jobs available. Tr. at 62. The VE responded employers would not tolerate these extra breaks, such that no jobs could be performed. Id.
The ALJ posed a sixth hypothetical, inquiring about the jobs available for one who would need a sit or stand option every half hour. Tr. at 61. The VE responded there would be productivity issues so there would be no positions available. Tr. at 61-62.
The ALJ posed a seventh hypothetical, at the prompt of Plaintiff's counsel
The VE confirmed his testimony had been consistent with the DOT, with exceptions for the discussion of additional breaks, the sit or stand option, and being off-task, as those issues were not specifically addressed in the DOT and his testimony was based on his experience, the field of vocational rehabilitation, job development, and job analysis. Id.
In his decision dated September 7, 2016, the ALJ made the following findings of fact and conclusions of law:
Tr. at 15-22.
Plaintiff alleges the Commissioner erred because the ALJ posed an improper hypothetical to the VE by failing to include her moderate limitation in concentration, persistence, or pace, such that his decision is not supported by substantial evidence.
The Commissioner counters that substantial evidence supports the ALJ's findings and the ALJ committed no legal error in his decision.
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a "disability." 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability as:
42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458 (1983) (discussing considerations and noting "need for efficiency" in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity; (2) whether she has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings;
A claimant is not disabled within the meaning of the Act if she can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. §§ 404.1520(a), (b), (f), 416.920(a), (b), (f); Social Security Ruling ("SSR") 82-62 (1982). The claimant bears the burden of establishing her inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence the claimant can perform alternative work and such work exists in the national economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that she is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).
The Act permits a claimant to obtain judicial review of "any final decision of the Commissioner . . . made after a hearing to which he was a party." 42 U.S.C. § 405(g). The scope of that federal court review is narrowly tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See id.; Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to "try [these cases] de novo or resolve mere conflicts in the evidence." Vitek v. Finch, 438 F.2d 1157, 1157 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. Richardson, 402 U.S. at 390. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. at 401 (citation omitted); Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). "In reviewing for substantial evidence, we do not undertake to reweigh conflicting evidence, make credibility determinations, or substitute our judgment for that of the [ALJ]." Johnson, 434 F.3d at 653 (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996)). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed "even should the court disagree with such decision." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
Plaintiff argues the ALJ failed to include her moderate limitation in concentration, persistence, or pace in his hypothetical posed to the VE, such that his RFC assessment is not supported by substantial evidence and remand is warranted because the facts of this case are the same as Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015). [ECF No. 14 at 26-27].
The Commissioner responds the ALJ adequately accounted for his step three finding of Plaintiff's moderate limitation in concentration, persistence, and pace in his hypothetical posed to the VE and RFC assessment, as Mascio does not dictate a blanket rule establishing that unskilled work could never sufficiently account for this limitation. [ECF No. 15 at 6-7]. Moreover, the Commissioner points to recent case law to support an ALJ adequately accommodates a claimant's moderate difficulty in concentration, persistence, or pace by crediting medical opinions of record and considering the limitations that the medical providers indicated as part of the RFC assessment. Id. at 7-9 (citing Sizemore v. Berryhill, 878 F.3d 72, 81 (4th Cir. 2017) and McCornell v. Berryhill, No. 1:17-cv-2761-SVH, 2018 WL 2244620 (D.S.C. May 16, 2018)). The Commissioner points to the two mental medical opinions in the record that opined Plaintiff did not have this moderate limitation, as well as asserts she has not pointed to any evidence that would warrant additional mental limitations in this case. Id.
Plaintiff replies she is not "symptom free," as exhibited by the ALJ's finding she has a moderate limitation in concentration, persistence, and pace, and the ALJ was required to reconcile this finding with the evidence in the record before discounting it. [ECF No. 17 at 1-3]. She also counters Sizemore and McCornell are distinguishable from the case at hand because, here, the ALJ only afforded these opinions "some" weight. Id. at 3-5. Finally, Plaintiff argues "the ALJ's own finding is the `additional limitation' that warrants further consideration." Id. at 5-6.
A claimant's RFC represents the most she can still do despite her limitations. 20 C.F.R. §§ 404.1545(a), 416.945(a). It must be based on all the relevant evidence in the case record and should account for all of the claimant's medically-determinable impairments. Id. The RFC assessment must include a narrative discussion describing how all the relevant evidence in the case record supports each conclusion and must cite "specific medical facts (e.g., laboratory findings) and non-medical evidence (e.g., daily activities, observations)." SSR 96-8p, 1996 WL 374184 at *7 (1996). The ALJ must determine the claimant's ability to perform work-related physical and mental abilities on a regular and continuing basis. Id. at *2. He must explain how any material inconsistencies or ambiguities in the record were resolved. Id. at *7. "[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, 780 F.3d at 636 (citing Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)).
For a VE's opinion to support a finding that the claimant can perform specific jobs "it must be based upon a consideration of all other evidence in the record . . . and it must be in response to proper hypothetical questions which fairly set out all of [the] claimant's impairments." Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989); Johnson, 434 F.3d at 659; see also English v. Shalala, 10 F.3d 1080, 1085 (4th Cir. 1993). An ALJ has discretion in framing hypothetical questions as long as they are supported by substantial evidence in the record, but a VE's testimony cannot constitute substantial evidence in support of the Commissioner's decision if the hypothesis fails to conform to the facts. See Swaim v. Califano, 599 F.2d 1309, 1312 (4th Cir. 1979).
In Mascio v. Colvin, the ALJ failed to include any mental limitations in the hypothetical question he posed to the VE, despite the fact that he credited the plaintiff's diagnosis of an adjustment disorder and found that she had moderate difficulties in maintaining concentration, persistence, or pace. 780 F.3d 632, 638 (4th Cir. 2015). The ALJ then relied on the VE's unsolicited identification of unskilled work to match his RFC finding. Id. The United States Court of Appeals for the Fourth Circuit ("Fourth Circuit") stated "we agree with other circuits that an ALJ does not account `for a claimant's limitations in concentration, persistence, and pace by restricting the hypothetical question to simple, routine tasks or unskilled work.'" Id. The Fourth Circuit explained it was possible for the ALJ to find that the moderate concentration, persistence, or pace limitation did not affect the plaintiff's ability to work, but remand was required "because the ALJ here gave no explanation." Id. This court has interpreted the Fourth Circuit's holding in Mascio to emphasize that an ALJ must explain how he considered the claimant's limitation in concentration, persistence, or pace in assessing his RFC. See Sipple v. Colvin, No. 8:15-1961-MBS-JDA, 2016 WL 4414841, at *9 (D.S.C. Jul. 29, 2016), adopted by 2016 WL 4379555 (D.S.C. Aug. 17, 2016) ("After Mascio, further explanation and/or consideration is necessary regarding how Plaintiff's moderate limitation in concentration, persistence, or pace does or does not translate into a limitation in his RFC.").
As an initial matter, like in Mascio, the ALJ did not limit Plaintiff to unskilled work, as this was an unsolicited limitation imposed by the VE in his responses to the ALJ. Tr. at 60-63. Moreover, the Fourth Circuit has recognized an ALJ does not account for "a claimant's limitations in concentration, persistence, and pace by restricting the hypothetical question to simple, routine tasks or unskilled work," as the "ability to perform simple tasks differs from the ability to stay on task. Only the latter limitation would account for a claimant's limitation in concentration, persistence, or pace." See Mascio, 780 F.3d at 638. However, the undersigned acknowledges, unlike the ALJ in Mascio who included no mental restrictions in the hypothetical question he presented to the VE, the ALJ in the instant case questioned the VE about the same mental limitations he adopted in the RFC assessment— occasional changes in the workplace and occasional interaction with the general public. Compare Tr. at 18, with Tr. at 60.
Yet, the ALJ noted these restrictions were made to accommodate Plaintiff's moderate impairments of adaptation and ability to interact socially. Tr. at 20. He specifically stated,
Id. Thus, the ALJ did not provide these restrictions to accommodate Plaintiff's moderate limitation in concentration, persistence, or pace. Dill v. Berryhill, No. 9:17-cv-1576-TCM-BM, 2018 WL 4212004, at *6 (D.S.C. Aug. 17, 2018), adopted by No. 2018 WL 4205648 (D.S.C. Sept. 4, 2018) ("Similarly, the ALJ limiting Plaintiff's RFC to no more than only minimal contact . . . with the general public along with few, if any, work place changes. . . deals largely with workplace adaptation, rather than concentration, pace, or persistence.").
The Commissioner cites the Fourth Circuit's decision in Sizemore and this court's recent decision in McCornell for support that this case is distinguishable from Mascio because "an ALJ adequately accommodates a claimant's moderate difficulties in concentration, persistence, or pace by crediting medical opinions of record and considering the limitations the medical providers indicated as part of the RFC assessment." [ECF No. 15 at 7 (quoting McCornell, No. CV 1:17-2761-SVH, 2018 WL 2244620, at *11 (D.S.C. May 16, 2018) (citing Sizemore, 878 F.3d at 81)].
In McCornell and Sizemore, the ALJs assigned great or significant weight to the psychologists' opinions, which addressed the plaintiffs' abilities to maintain concentration, persistence, or pace. See McCornell, 2018 WL 2244620, at *11 (D.S.C. May 16, 2018) ("The ALJ gave great weight to opinions from Drs. Goots and Burke, who opined that Plaintiff could complete a normal workweek with only an occasional interruption. . . . By crediting opinions from Drs. Goots and Burke, the ALJ found that Plaintiff generally retained the ability to stay on task to complete a normal workweek."); see also Sizemore, 878 F.3d at 80 ("The ALJ also addressed the weight he was giving to opinion evidence, noting that he was assigning `little weight' to NP Williams's opinion . . . and was instead assigning `significant weight' to the opinions of consulting examiner Dr. Ahsanuddin and the State agency psychological consultant, Dr. King.").
However, as noted by Plaintiff and in contrast to McCornell and Sizemore, the ALJ only assigned "some" weight to certain portions of the opinions by the consultative examiner, Dr. Blazina, and the non-examining state agency psychologist, Dr. Khaleeli, regarding Plaintiff's adaptation and social functioning and he failed to assign any weight to other portions. Tr. at 20 ("Some weight has been given to the opinions of Dr. Blazina that [Plaintiff] had moderate impairment of her adaption and her ability to interact socially."); Tr. at 18 ("A non-examining State agency consultant opined that [Plaintiff] had moderate limitations of social functioning (Exhibits 5A and 6A). The [ALJ] has given some weight to that assessment, which was consistent with the opinion of the consultative examiner.").
Furthermore, as argued by Plaintiff, the ALJ found a greater degree of limitation in concentration, persistence, or pace, than either of these opinions provided, undermining the Commissioner's argument that the ALJ relied on their opinions regarding this issue. Compare Tr. at 18 (finding moderate difficulty by the ALJ), with Tr. at 638 (finding she did "not appear noticeably impaired" by Dr. Blazina) and Tr. at 90, 95 (opining "mild" or "no" limitation by Dr. Khaleeli). Notably, in McCornell and Sizemore, the doctors' opinions relied upon to support the ALJ's decisions—that the plaintiffs' moderate limitations in concentration, persistence, or pace did not prevent them from working—all opined the plaintiffs had this moderate limitation, but they were able to work regardless of it. See McCornell, 2018 WL 2244620, at *3-*4, *11 (D.S.C. May 16, 2018) (noting the ALJ assigned "great weight to opinions from Drs. Goots and Burke, who opined that [the plaintiff] could complete a normal workweek with only an occasional interruption" despite their findings that he had a moderate limitation in concentration, persistence, and pace, as long as certain restrictions were imposed, and this supported the ALJ's decision); see also Sizemore v. Berryhill, 878 F.3d 72, 80-81 (4th Cir. 2017) (noting the ALJ assigned "`significant weight' to the opinions of consulting examiner Dr. Ahsanuddin and the State agency psychological consultant, Dr. King" and "[t]he ALJ determined early in his analysis that Sizemore had moderate difficulties with regard to concentration, persistence, or pace, as did Dr. King," but Dr. King concluded the plaintiff was "mentally capable of independently performing basic, routine tasks on a sustained basis" and "Dr. Ahsanuddin similarly concluded that [the plaintiff] could . . . `show sustained attention to perform simple repetitive tasks'" and holding "[t]he opinions of these two doctors thus provided substantial support for the ALJ's finding that, despite [the plaintiff's] overall moderate difficulties with concentration, persistence, or pace, he would nonetheless be able to stay on task" as long as he was working subject to the limitations provided) (emphasis in original) (citing for comparison Mascio, 780 F.3d at 638).
Thus, this case does not present the scenario wherein the ALJ gave great weight or adopted the relevant opinions, such that we may consider that they were relied upon without additional explanation. See Dill, 2018 WL 4212004, at *5 (D.S.C. Aug. 17, 2018), adopted by 2018 WL 4205648 (D.S.C. Sept. 4, 2018) (noting the Commissioner cited two opinions by state agency psychological consultants who touched on the plaintiff's ability to stay on task for support of the ALJ's decision, but noting the ALJ had assigned one opinion little weight and did not discuss the other report, nor "discuss anywhere in his decision whether [the plaintiff's] moderate limitations in [concentration, persistence, or pace] would restrict his ability to stay on task for an eight (8) hour workday, nor (critically) does he make any findings on this issue").
In addition, although the ALJ acknowledge Plaintiff's complaints of concentration deficits in his decision, he did not acknowledge her notations and complaints regarding pace. Compare Tr. at 19 ("[Plaintiff's] complaints of concentration deficits were inconsistent with her report to Dr. Balzina that she enjoyed reading fiction."), with Tr. at 221 (noting, in her function report of June 2014, her conditions affected "completing tasks") and 238 (noting, in her function report of September 2014, her conditions affected "completing tasks" and "memory — a bit"). Furthermore, in focusing on Plaintiff's complaints of concentration deficits as being inconsistent with her report that she enjoyed reading fiction, the ALJ did not acknowledge other evidence reflecting the limited scope of this activity. See Tr. at 221 (noting she "usually read[s] in intervals" and has to "move around if [she] start[s] to hurt"), 237 (noting she reads for "short spells" and "off [and] on" due to pain).
Moreover, the record contained other evidence of Plaintiff's issues with completing tasks that were not addressed. Tr. at 217 (stating "[w]hile trying to do simple things like housework or grooming [she has] to stop several times due to pain, numbness, weakness, and inability to continue"), 218 (noting regarding personal care "as long as [she] can sit [and] stop for [a] few minutes [she] can usually manage eventually"), 219 (explaining she "take[s] small breaks" while preparing extended meals and does "indoor cleaning [and laundry] at intervals"), 222 (noting her limitations and stating "all [of] this sometimes means not completing task[s]"), 235 (stating she prepared food or meals twice a week, but has to "pace [her]self with simple chores" because the "pain is too bad"). Finally, both psychologists noted Plaintiff alleged an issue with completing tasks at a particular pace, but this was not acknowledged by the ALJ. See Tr. at 637-38 (providing Dr. Blazina noted Plaintiff did minimal chores around the house and, if she did "anything around the house, [she had] to really pace herself"), 91 (stating Dr. Khaleeli reviewed Dr. Blazina's consultative examination and Plaintiff's file and noted she alleged "limitations in memory [and] completing tasks, but not in concentration, following instructions, or getting along with others").
The undersigned notes the opinions of Dr. Blazina and Dr. Khaleeli also contained additional limitations that were not adopted or acknowledged by the ALJ. See Tr. at 638 ("Her ability to adapt to change in a work routine and tolerate workplace stress is most likely at least moderately impaired due to her depression and anxiety."), Tr. at 96 ("Contact with the general public, supervisors, and co-workers should be no more than occasional. . . . The claimant can adapt to infrequent changes within the restrictions listed above."). Perplexingly, Dr. Khaleeli noted in her summary, "The symptom report is credible as the diagnosis could reasonably cause the stated symptoms and functional limitations. The severity of limitations alleged is generally consistent with the objective findings." Tr. at 91. However, she then opined Plaintiff's "symptoms and impairments would not . . . prevent [Plaintiff] from completing work-like activities," but her "social ability and adaptation are somewhat impacted and would cause moderate limitations in basic work-like duties." Id. The ALJ did not discuss this notation by Dr. Khaleeli.
The undersigned also notes the number of breaks that Plaintiff requires or the amount of time she may be off task due to pain and symptoms could affect her ability to perform work at the appropriate pace and is relevant to her disability claim. Plaintiff's counsel mentioned during the hearing that the ALJ had not questioned the VE about an individual being off task due to pain and other issues, but acknowledged it may be covered by the ALJ's inquiry regarding whether additional breaks would be allowed. Tr. at 62-63. Nonetheless, the ALJ posed another hypothetical to the VE, inquiring how jobs would be impacted if the individual was "off task greater than 15% of the workday and that was going to be kind of an ongoing problem." Id. Similar to the need for additional breaks, the VE responded, "[t]here would be no work that could be maintained." Id.
To properly assess a claimant's RFC, the ALJ must ascertain the limitations imposed by the individual's impairments and determine her work-related abilities on a function-by-function basis. SSR 96-8p. The ALJ must also consider and explain how any material inconsistencies or ambiguities in the record were resolved. Id. "[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, 780 F.3d at 636 (citing Cichocki, 729 F.3d at 177).
Thus, although the ALJ acknowledged some of Plaintiff's mental limitations,
Carroll v. Berryhill, No. CV 5:17-312-BHH, 2018 WL 4625790, at *4 (D.S.C. Sept. 27, 2018) (quoting 20 C.F.R. Pt. 404 Subpt. P, App. 1, § 12.00(C)(3) (emphasis in original)); accord Dill, 2018 WL 4212004, at *6 (D.S.C. Aug. 17, 2018), adopted by 2018 WL 4205648 (D.S.C. Sept. 4, 2018) (citation omitted) (remanding the matter because the ALJ did not "specifically address Plaintiff's ability to stay on task or ability to maintain a necessary pace for a full 8-hour workday" and "the court is left to guess how the ALJ accounted for this ability (or inability) despite finding that [she] had moderate difficulties in maintaining concentration, persistence, or pace"). Likewise, here, "because the ALJ here gave no explanation, a remand is in order." See Mascio, 780 F.3d at 638 (internal citation omitted); accord Phillips v. Berryhill, No. 9:17-CV-01945-DCN, 2018 WL 6604228, at *2 (D.S.C. Dec. 17, 2018) ("The Commissioner argues that (1) the ALJ did address the issuing of working a full workday by endorsing medical opinions that addressed [the plaintiff's] ability to do so; and (2) Mascio is distinguishable from the instant case and does not compel a remand. The court is not persuaded by either argument.").
In light of the foregoing, the undersigned recommends the court find that it is unable to determine substantial evidence supports the ALJ's reliance on the VE's testimony to meet the burden at the fifth step and the resulting RFC assessment.
The court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported as a matter of fact and law. Based on the foregoing, the court cannot determine that the Commissioner's decision is supported by substantial evidence. Therefore, the undersigned recommends, pursuant to the power of the court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in Social Security actions under sentence four of 42 U.S.C. § 405(g), that this matter be reversed and remanded for further administrative proceedings.
IT IS SO RECOMMENDED.
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:
