REPORT AND RECOMMENDATION

BRISTOW MARCHANT, Magistrate Judge.

The Plaintiff filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner wherein she was denied disability benefits. This case was referred to the undersigned for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a)(D.S.C.).

Plaintiff applied for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI)1 on May 22, 2015 (protective filing date), alleging disability beginning October 16, 2014, due to a bulging disc, neck and shoulder pain, and high cholesterol. (R.pp. 16, 200, 207, 227). Plaintiff's claims were denied both initially and upon reconsideration. Plaintiff then requested a hearing before an Administrative Law Judge (ALJ), which was held on November 16, 2017. (R.pp. 34-72). The ALJ thereafter denied Plaintiff's claims in a decision issued February 7, 2018. (R.pp. 16-28). The Appeals Council denied Plaintiff's request for a review of the ALJ's decision, thereby making the determination of the ALJ the final decision of the Commissioner. (R.pp. 1-7).

Plaintiff then filed this action in United States District Court. Plaintiff asserts that there is not substantial evidence to support the ALJ's decision, and that the Court should remand her case for further administrative proceedings or for an award of benefits. The Commissioner contends that the decision to deny benefits is supported by substantial evidence, and that Plaintiff was properly found not to be disabled.

Scope of review

Under 42 U.S.C. § 405(g), the Court's scope of review is limited to (1) whether the Commissioner's decision is supported by substantial evidence, and (2) whether the ultimate conclusions reached by the Commissioner are legally correct under controlling law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Richardson v. Califano, 574 F.2d 802, 803 (4th Cir. 1978); Myers v. Califano, 611 F.2d 980, 982-983 (4th Cir. 1980). If the record contains substantial evidence to support the Commissioner's decision, it is the court's duty to affirm the decision. Substantial evidence has been defined as:

Hays, 907 F.2d at 1456 (citing Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966)); see also Hepp v. Astrue, 511 F.3d 798, 806 (8th Cir. 2008)[Nothing that the substantial evidence standard is even "less demanding than the preponderance of the evidence standard"].

The Court lacks the authority to substitute its own judgment for that of the Commissioner. Laws, 368 F.2d at 642. "[T]he language of [405(g)] precludes a de novo judicial proceeding and requires that the court uphold the [Commissioner's] decision even should the court disagree with such decision as long as it is supported by `substantial evidence.'" Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).

Discussion

A review of the record shows that Plaintiff was fifty-one years old on her alleged onset of disability date, and fifty-four years old at the time at the time of the ALJ's decision. She has a high school education and a college degree, but has no past relevant work experience. (R.pp. 26, 58, 68, 200, 228). In order to be considered "disabled" within the meaning of the Social Security Act, Plaintiff must show that she has an impairment or combination of impairments which prevent her from engaging in all substantial gainful activity for which she is qualified by her age, education, experience, and functional capacity, and which has lasted or could reasonably be expected to last for a continuous period of not less than twelve (12) months.

After a review of the evidence and testimony in the case, the ALJ determined that, although Plaintiff does suffer from the "severe" impairments2 of obesity, degenerative disc disease, bipolar disorder, anxiety disorder, and major joint dysfunction (R.p. 18), she nevertheless retained the residual functional capacity (RFC) to perform medium work,3 with limitations of only frequently reaching overhead to the left and right, climbing ramps and stairs, balancing, stooping, kneeling, crouching, and crawling; occasionally climbing ladders, ropes, or scaffolds; and occasional exposure to unprotected heights, moving mechanical parts, humidity and wetness, dusts, odors, fumes, and pulmonary irritants. The ALJ also found that Plaintiff had the mental capacity to frequently respond appropriately to supervisors, co-workers, and the public; that she would be off task for five percent of an eight-hour workday in addition to normal breaks; and would be absent from work for one day each month. (R.p. 21). Although Plaintiff had no past relevant work experience (R.p. 26), the ALJ obtained testimony from a vocational expert (VE) and found at step five that Plaintiff could perform jobs existing in significant numbers in the national economy with her limitations, and thus was not disabled during the time period at issue. (R.pp. 26-27).

Plaintiff asserts that in reaching this decision the ALJ failed to properly assess the medical source opinion evidence, failed to properly explain his RFC findings, and erred in his evaluation of her subjective symptomology, including by failing to properly consider her inability to afford treatment. Specifically with respect to the opinion evidence, Plaintiff argues that the ALJ failed to fully consider the entire opinion of, and failed to assign a specific weight to the opinion of, physical therapist (PT) Chris Ballew. Plaintiff also alleges that the ALJ erred in according little weight to the opinions of the state agency medical consultants where they were supported by the medical evidence and consistent with other opinion evidence. The Commissioner contends that the ALJ properly assigned only "some weight" to PT Ballew's opinion and "little weight" to the opinions of the state agency physicians, and further argues that even if Plaintiff could only perform light work, any error would be harmless because the VE also identified three light jobs that Plaintiff could perform. However, after careful review and consideration of the evidence and arguments presented, the undersigned is constrained to agree with the Plaintiff that the ALJ failed to properly evaluate the opinion evidence, thereby requiring a remand of this case for additional review.

The law applicable to this case provides that a "treating" physician's opinion is ordinarily entitled to great weight; see Craig v. Chater, 76 F.3d 585, 589-590 (4th Cir. 1996)[Noting importance of treating physician opinion]; is entitled to deference, and must be weighed using all of the factors provided for in 20 C.F.R. §§ 404.1527, 416.927. See SSR 96-2p.4 However, in this case, while various medical records, including Plaintiff's primary case records, are discussed, the ALJ does not evaluate or give any weight to opinions from any treating physicians. Instead, the ALJ weighed the opinions from nurse practitioner (NP) Anna Moak of the Pain Center, PT Ballew, and the state agency medical consultants. In reaching his decision, the ALJ stated that he gave significant weight to an opinion from NP Moak (given a few days after Plaintiff's alleged onset date of disability), some weight to the opinion of PT Bellow, and little weight to the opinions of the state agency physicians. (R.pp. 26-27).

Concededly, the ALJ was not required to assign the opinions of PT Ballew or NP Moak any particular weight, because nurse practitioners and physical therapists were not "acceptable medical sources" under the regulations applicable at the time of Plaintiff's application for benefits.5 Even so, such opinions may be considered by the ALJ under the same factors as an acceptable medical source. See 20 C.F.R. §§ 404.1513(a), (d)(2013), 404.1502 (2011); SSR 06-03p; Craig v. Chater, 76 F.3d at 590. Moreover, with regard to the opinions of PT Ballew and NP Moak, the law applicable to this case provides that, regardless of the source, the Commissioner should evaluate every medical opinion received; 20 C.F.R. § 404.1527(c); and in weighing these opinions, the ALJ is instructed to apply the same factors applicable to treating medical sources to all medical opinions, including those from consultative or one-time examiners. These factors include: (1) the examining relationship between the claimant and the medical source; (2) the treatment relationship between the claimant and the medical source, including the length of the treatment relationship, frequency of treatment, and the nature and extent of the treatment relationship; (3) the supportability of the medical source's opinion; (4) the consistency of the opinion with other evidence in the record; (5) the specialization of the source offering the opinion; and (6) any other relevant factors that tend to support or contradict the opinion. 20 C.F.R. § 404.1527(c). Also, while more weight is generally given to opinions of treating sources than non-treating sources, such as consultative examiners, more weight is also generally given to the opinions of an examining source than to a non-examining one. Id.

On March 17, 2016, PT Ballew of Carolina Physical Therapy performed a functional capacity evaluation (FCE) of the Plaintiff. (R.pp. 512-514). As noted, the ALJ gave "some weight" to PT Ballew's opinions and observations, stating that:

(R.pp. 26-27). However, PT Ballew specifically opined that, according to the Dictionary of Occupational Titles, Plaintiff "would currently qualify for sedentary work6 based upon her current physical abilities demonstrated here today." (R.p. 514). The ALJ does not reference PT Ballew's conclusion that Plaintiff qualified for only sedentary work, or discuss why that opinion was ignored. Further, although PT Ballew found on examination that Plaintiff could tolerate only "occasional" postural (bending, stooping, rotating, kneeling, crawling, climbing, and reaching) activities, the ALJ found that Plaintiff could "frequently" perform these activities. (R.p. 513). Again, no discussion for why this opinion was not followed is provided.

In addition, although the ALJ concluded from PT Ballew's FCE that Plaintiff was able to perform a "number of activities" at a level of medium exertion, it is unclear that the FCE results properly lead to a conclusion that Plaintiff had the ability to perform full-time medium work, as opposed to only light7 or even sedentary work (as opined to by PT Ballew). While the FCE does indicate that Plaintiff could perform some activities at a "DOL Class" of "medium", other activities were listed as light or even "less than sedentary". Further, even some of the "medium" activities showed an ability to handle only 22 pounds (R.p. 513), which is less than the requirements for medium work (lifting up to 50 pounds and frequent lifting of up to 25 pounds) as defined in the Social Security regulations (see 20 C.F.R. §§ 404.1567(c), 416.967(c)). It was also noted that Plaintiff was unable to perform floor to waist or shoulder to overhead handling, and that she was only able to handle twenty pounds from waist to shoulder and to carry twelve pounds unilaterally on the left. (R.p. 513).

The ALJ concluded that PT Ballew's limitations were entitled to less weight because it was noted in the FCE that Plaintiff's material handling activities were self-limited due to her subjective complaints of pain. However, this reason for assigning less weight to the FCE findings is contradicted by PT Ballew's finding (which the ALJ did not mention) that Plaintiff "put forth a cooperative and consistent effort during today's evaluation, and it is this evaluator's opinion that this is a true indication of her current physical abilities." (R.p. 514). The ALJ does not indicate why, or on what basis, he chose to disregard this opinion from the professional who administered the tests. The Commissioner argues that although Plaintiff reported that her pain was 8-9/10 during the FCE, she generally reported less severe symptoms during treatment, which supports the ALJ's decision to discount the FCE. However, this argument is a post hoc rationalization by the Commissioner for upholding the decision. As noted, the ALJ did not himself actually discuss or provide an explanation for his rejection of PT Ballew's finding in his decision, and it would not be proper for this Court to accept the Commissioner's explanation as a way to justify the decision on appeal. See Ellis v. Astrue, No. 07-3996, 2009 WL 578539, at * 8 (D.S.C. Mar. 5, 2009) [Rejecting post hoc rationale for ALJ's decision]; Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001)[Court cannot affirm a decision on a ground that the ALJ did not himself invoke in making the decision]. Additionally, it is arguable that the pain reported during the FCE, during which Plaintiff performed handling activities, may have produced more pain than a routine visit to a physician.

The ALJ's decision to give little weight to the opinions of the state agency physicians is also not supported by substantial evidence. As noted in the regulations, these opinions are from "highly qualified . . . experts in Social Security disability evaluation." See 20 C.F.R. § 404.1513a(b). On August 21, 2015, state agency physician Dr. Michele Spero opined that Plaintiff could perform a range of light work with limitations of only occasionally performing all postural activities (climbing balancing, stooping, kneeling, crouching, and crawling), occasionally reaching bilaterally overhead, and avoiding concentrated exposure to hazards. (R.pp. 78-80). On March 15, 2016, state agency physician Dr. Hurley W. Knott also opined that Plaintiff could perform a range of light work, with limitations of only occasionally performing all postural activities, occasionally reaching overhead on the left and right, and avoiding concentrated exposure to hazards. (R.pp. 106-109). Such opinions routinely receive significant weight from ALJ's unless they are contradicted by the record. See Johnson v. Barnhardt, 434 F.3d 650, 657 (4th Cir. 2005)[ALJ can give significant weight to opinion of medical expert who has thoroughly reviewed the record]; see also Ponder v. Colvin, 770 F.3d 1190, 1195 (8th Cir. 2014) [noting that opinions from state agency consultants may be entitled to even greater weight than the opinions of treating or examining sources]. The ALJ stated that he discounted these opinions, in part, because they were not based on examinations. However, although more weight is generally given to the opinions of an examining source than a non-examining one, these opinions actually appear to be supported by the findings of examining PT Ballew, while there are no examining physician opinions that dispute these conclusions.

Moreover, the regulations require the ALJ to consider the opinions of state agency physicians utilizing the factors outlined above and explain the weight attributed to those opinions. 20 C.F.R. §§ 404.1513a(b), 404.1527. Here, the ALJ discounted these state agency physicians' opinions in part because he concluded that Plaintiff "was able to engage in some forms of medium exertion as of March 2016 [which appears to be a reference to the findings of PT Ballew]." (R.p. 26). However, as discussed above, PT Ballew concluded that Plaintiff could perform only sedentary, not medium, work, and many of the FCE findings also indicate an ability for less than medium work. (R.pp. 513-514). The ALJ also discounted the opinions of the state agency physicians based on the ALJ's conclusion that "there is little evidence of ongoing back or neck pain following the reconsideration determination [in March 2016]." However, at the hearing Plaintiff testified to a lack of treatment because she did not have any health insurance. She said she went to Sumter Family Healthcare under a sliding fee agreement, but that doctor was not a pain management doctor; she further received care from a pain management doctor after her motor vehicle accidents (she was involved in motor vehicle accidents in May 2012 and March 2014-see R.pp. 56-57, 301, 345, 362) under two different letters of protection (protecting the fees upon a successful resolution of the accident claims); and testified that if she had had insurance she would go back to the orthopedic doctor, but she had been unable to do so. (R.pp. 56-58, 61). Therefore, Plaintiff's lack of treatment records for ongoing back or neck pain may be due to her lack of funds for treatment, as opposed to not needing it.

The Commissioner, citing to SSR 82-59, 1982 WL 31384, argues that before an ALJ may consider a lack of treatment or lack of documentation of symptoms, Plaintiff must provide proof that she made efforts to obtain treatment but was unable to do so due to affordably.8 However, SSR 16-3p provides that the Social Security Administration "will not find an individual's symptoms inconsistent with the evidence in the record [based on infrequent treatment or failure to follow prescribed treatment] without considering possible reasons he or she may not comply with treatment or seek treatment consistent with the degree of his or her complaints." SSR 16-3p, 2017 WL 5180304. The ruling further provides that when taking into account an individual's treatment history, the Administration may consider, among other reasons, that the "individual may not be able to afford treatment and may not have access to free or low-cost medical services." Id. Such is the case here.

Further, the Fourth Circuit has noted that "a claimant may not be penalized for failing to seek treatment she cannot afford" because "it flies in the face of the patent purposes of the Social Security Act to deny benefits to someone because [she] is too poor to obtain medical treatment that may help [her]." Lovejoy v. Heckler, 790 F.2d 1114, 1117 (4th Cir. 1986). The Lovejoy court went on to state that "it is erroneous to consider the claimant's failure to seek treatment as a factor in the determination that her impairment is not severe as it would be ... because she failed to follow prescribed treatment when that failure is justified by lack of funds." Id. Thus, while it may be that the opinions of the state agency physicians are contradicted by there being little evidence of ongoing back or neck pain after March 2016, it is unclear that such a conclusion is supported by substantial evidence as Plaintiff's allegation that there was a lack of treatment due to an inability to afford such was not addressed by the ALJ in his decision.

The ALJ also based his determination that Plaintiff could perform medium work and discounted the opinions of PT Ballew and the state agency physicians on the findings in an undated letter from NP Moak of the Pain Center, to which he gave significant weight. (R.pp. 25, 401). In that letter, NP Moak stated that Plaintiff had been under her care since June 7, 2013, was seen in the office on October 22, 2014 for pain management, and that Plaintiff reportedly had been working since January 28, 2013 and "is still able and willing to work full-time with her present condition." She further wrote that Plaintiff was currently still under her care, and that they were "working to continue stabilizing [Plaintiff's] shoulder and back condition." (R.p. 401). The ALJ stated that he gave significant weight to NP Moak's opinion, even though it was not a detailed statement, because the ALJ believed that NP Moak reached the correct conclusion regarding Plaintiff's prognosis for work. The ALJ observed that the note was written within a year of Plaintiff's second motor vehicle accident and before Plaintiff's partially successful course of physical therapy (in 2016), and that she "achieved significant benefits and control of her neck and back pain in subsequent treatment at The Pain Center." (R.p. 25). However, at the time of NP Moak's opinion, Plaintiff was working only part time (per Plaintiff's testimony at the hearing and written reports) at what appears to be a less than sedentary job (not the medium level work assigned by the ALJ). Plaintiff also testified that she last worked a part-time job (twenty to twenty-five hours at week) at a telemarketer at an insurance agency February 2013 to October 2014 at approximately $7.25 per hour. (R.pp. 42-45). In her disability reports, Plaintiff reported working for twenty-five hours a week. (R.pp. 228, 234, 242).9 Further, the VE stated that Plaintiff had no past relevant work (R.p. 68),10 and the ALJ specifically found that Plaintiff had no past relevant work (R.p. 26). Thus, it is unclear how NP Moak's letter provides substantial evidence for a finding that Plaintiff could perform full time medium work.

Finally, the Commissioner argues that even if the state agency physician opinions should have been given greater weight (and thus that the ALJ should have found that Plaintiff was restricted to light work), any error would be harmless since the VE also identified three light exertion jobs that Plaintiff could perform. However, although the VE identified light jobs that Plaintiff could perform, these jobs were based on a hypothetical question as to a claimant who could frequently climb ramps and stairs, balance, stoop, kneel, crouch, and crawl and who could frequently reach overhead bilaterally. (R.pp. 68-70). As noted above, the state agency physicians limited Plaintiff to only occasionally performing postural activities and only occasionally reaching bilaterally overhead, as did PT Ballew, such that the jobs identified by the VE would not satisfy these requirements. Further, it should be noted that Plaintiff was less than two months from turning fifty-five at the time of the ALJ's decision, and under the medical-vocational guidelines; 20 C.F.R. Part 404, Subpart P, appendix 2 (also known as the Grids); a claimant who is fifty-five years old (advanced age)11 who is a "[h]igh school graduate or more-does not provide for direct entry into skilled work" and who has no previous work experience would be considered disabled under Grid Rule 202.04 if they could perform no more than light work. Concededly, "an ALJ is not required to use an older age category, even if the claimant is within a few days or a few months of reaching an older age category." Lockwood v. Comm'r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010). However, the Regulations provide that:

20 C.F.R. § 404.1563(b). Here, although this Grid rule may not apply, if the ALJ upon remand were to find that Plaintiff is restricted to light work, then this rule would need to be considered.

Therefore, based on the foregoing, the decision should be reversed and remanded for consideration of all of the evidence, including the opinion evidence, in compliance with the applicable regulations. With respect to any remaining claims of error asserted by the Plaintiff, the ALJ will be able to reconsider and re-evaluate the evidence in toto as part of the reconsideration of this claim. Hancock v. Barnhart, 206 F.Supp.2d 757, 763-764 (W.D.Va. 2002)[On remand, the ALJ's prior decision has no preclusive effect, as it is vacated and the new hearing is conducted de novo].

Conclusion

Pursuant to the power of this Court to enter a judgment affirming, modifying or reversing the decision of the Commissioner with remand in Social Security actions under Sentence Four of 42 U.S.C. § 405(g), it is recommended that the decision of the Commissioner be reversed, and that this case be remanded to the Commissioner for reevaluation of the evidence as set forth hereinabove, and for such further administrative action as may be necessary. See Shalala v. Schaefer, 509 U.S. 292 (1993).

The parties are referred to the notice page attached hereto.

Notice of Right to File Objections to Report and Recommendation

The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must `only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).

Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:

Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).