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 he 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.
This is the third time the court is addressing Plaintiff's claim for Social Security disability benefits.
Plaintiff previously filed applications for DIB and SSI in February 2005, Tr. 677, which the ALJ denied in a decision dated October 19, 2009, Tr. 161. This court affirmed Administrative Law Judge ("ALJ") Todd D. Jacobson's decision on March 16, 2012. Massey v. Astrue, C/A No. 3:10-2943-TMC (D.S.C. Mar. 16, 2012) ("Massey I").
In December 2009, Plaintiff protectively filed applications for DIB and SSI alleging disability beginning April 24, 2008.
Plaintiff was 52 years old at the time of the December 1, 2016 hearing. Tr. at 780. She obtained a high school equivalency certificate. Tr. at 793. Her past relevant work ("PRW") was as a fast food worker, cloth winder, and electronics tester. Tr. at 792. She alleges she has been unable to work since 2004. Tr. at 787.
Plaintiff presented to Sung Chang, M.D. ("Dr. Chang"), for evaluation of back pain on May 31, 2007. Tr. at 396. Dr. Chang observed tenderness to palpation over Plaintiff's bilateral sacroiliac ("SI") joints and 5/5 strength in her lower extremities. Id. He assessed SI joint arthropathy, lumbar spondylosis, and possible lumbar radiculopathy. Id. He administered bilateral SI joint injections and increased Plaintiff's dose of Tylox. Tr. at. 396, 398-99.
Plaintiff reported persistent lower back pain during a follow up visit on August 27, 2007. Tr. at 391. She indicated she had initially benefitted from SI joint injections, but had received no relief from the most recent one. Id. Dr. Chang attempted to perform bilateral L5, S1, and S2 medial branch block without sedation, but discontinued the procedure, as Plaintiff reported an inability to tolerate it. Tr. at 393-94. He referred Plaintiff for magnetic resonance imaging ("MRI") of the lumbosacral spine. Tr. at 392.
On September 17, 2007, Dr. Chang wrote that Plaintiff's only option was medication management because previous procedures had failed to benefit her. Tr. at 388. He noted the MRI of Plaintiff's lumbosacral spine appeared to show fatty marrow changes versus hemangioma and failed to reveal disc herniations or congenital or acquired stenosis. Id. He stated "I continue to suspect that a good portion of her symptoms are related to depression, perhaps myofascial in origin," and recommended Plaintiff undergo a psychiatric evaluation. Id. He prescribed Robaxin and decreased Tylox with the intention of weaning Plaintiff off the medication. Tr. at 389.
On November 5, 2007, Dr. Chang recommended Plaintiff undergo placement of a spinal cord stimulator. Tr. at 387.
On January 31, 2008, Dr. Chang assessed myofascial pain and lumbar radiculopathy. Tr. at 385. He noted Plaintiff was interested in pursuing a spinal cord stimulator. Tr. at 384.
On August 8, 2008, Plaintiff presented to Ifediora Foster Afulukwe ("Dr. Afulukwe"), complaining of pain and cramping throughout her body. Tr. at 410. Dr. Afulukwe noted no abnormalities on exam. Tr. at 411. He renewed Tylox and provided samples of Zanaflex. Id.
Plaintiff presented to John C. Whitley, III, Ph.D. ("Dr. Whitley"), for a consultative psychological evaluation on August 22, 2008. Tr. at 400-03. She reported seeing her father shoot her mother when she was a child and indicated she lived with multiple different family members until she was 18 years old. Tr. at 400. She indicated her ex-husband physically abused her. Id. Plaintiff endorsed pain in her back, pelvis, and knees, daily headaches, swelling in her feet and ankles, and episodic hand pain that occurred with overuse. Id. She complained of feeling jittery and uncomfortable around groups of people, being depressed, crying at least twice per week, and having little patience for others. Tr. at 401. Dr. Whitley observed the following on mental status exam: adequately dressed and groomed; affect within normal limits; moderately depressed mood; poor eye contact; clear and normal speech; adequate grammar and language skills; rational thought process; functioning in at least the borderline range of intelligence; able to recite serial threes, fives, and sevens in a forward manner; able to spell "world" forward only; good proverb interpretation; ability to recall two of four items after a 15-minute delay; ability to recall three of three objects immediately; grossly intact long term memory; appropriate motor behavior; no overt anxiety; appropriately oriented; and denied suicidal and homicidal ideation. Tr. at 401-02. Dr. Whitley assessed dysthymic disorder and indicated a need to rule out pain disorder. Tr. at 402. He stated Plaintiff had no difficulty understanding questions and was able to present information in a "fairly organized manner." Id. He indicated Plaintiff appeared to have the ability to understand and follow simple work tasks, but may have difficulty standing upright and focusing for timely completion of tasks. Tr. at 403. He stated Plaintiff was able to communicate appropriately with others. Id. He noted she was "somewhat vulnerable to decompensate further if subjected to sustained demands and expectations." Id. He assessed a global assessment of functioning ("GAF")
On September 4, 2008, Plaintiff complained of numbness in her hands and feet and breathing problems. Tr. at 404. She endorsed a history of numbness that was progressively worsening and associated with pain. Id. Dr. Afulukwe recommended Plaintiff undergo electromyography ("EMG") to evaluate for neuropathy. Tr. at 406. He opined Plaintiff's shortness of breath was likely secondary to cigarette smoking. Id. He stated "[a]lthough, this patient does have clinical evidence for problems involving her hands and feet as well as breathing difficulties, I do suspect that smoking cessation as well as appropriate evaluation and treatment for her underling conditions may allow this patient to function in an occupational setting." Id.
Plaintiff complained of chronic aches and pain on December 8, 2008. Tr. at 415. Dr. Afulukwe noted no abnormalities on physical exam. Tr. at 416-17. He assessed fibromyalgia syndrome with diffuse musculoskeletal pains, continued Plaintiff's medications, and reauthorized her handicap tag. Tr. at 418.
Dr. Afulukwe assessed fibromyalgia and neuropathy on April 7, 2009. Tr. at 418. He noted antalgic gait, reduced sensation to vibration in both lower extremities, and reduced proprioception in both great toes. Tr. at 419. He refilled Tylox and Lovastatin. Tr. at 420.
Plaintiff was admitted to Springs Memorial Hospital ("SMH") for diabetic ketoacidosis on August 4, 2009, and remained hospitalized for stabilization and treatment of an infection until August 10, 2009. Tr. at 425.
Plaintiff was again admitted to SMH from August 19 to August 25, 2009, for complaints of generalized weakness and pedal edema and treatment of persistent anemia. Tr. at 468.
Plaintiff reported some improvement, but indicated she still felt ill on September 18, 2009. Tr. at 521. Dr. Afulukwe diagnosed diabetes, reduced Plaintiff's Lasix dosage, provided samples of Levemir, and refilled her other prescriptions. Tr. at 522.
Plaintiff presented to Chukwuma S. Ogugua, M.D. ("Dr. Ogugua"), for joint and back pain and left arm numbness and tingling on November 16, 2009. Tr. at 524. Dr. Ogugua noted no abnormalities on physical exam. Tr. at 525. He assessed chronic bronchitis and diffuse bone pain, encouraged Plaintiff to stop smoking, adjusted her medications, ordered lab work, and indicated he would refer her to a cardiologist. Id.
Plaintiff presented to the emergency room ("ER") at SMH on November 18, 2009, and remained hospitalized for cardiac workup until November 20, 2009. Tr. at 513. She reported chest pain, pain radiating into her left arm and the left side of her jaw, sweating, nausea, and shortness of breath. Id. Chest x-rays were normal and showed no active pulmonary disease. Tr. at 558. Plaintiff underwent cardiac catheterization on November 20, 2009, which showed mild-to-moderate coronary artery disease with a 50% to 55% narrowing in a very small third marginal branch. Tr. at 514-15. She had preserved left ventricular systolic function with ejection fraction of 55% and elevated left ventricular end diastolic pressure of 30 mm/Hg. Tr. at 515.
On January 15, 2010, Plaintiff complained of congestion, pain in her feet and ankles, and nocturnal leg cramps. Tr. at 526. Dr. Ogugua noted inspiratory squeaks and swollen nasal turbinates with no purulence, but indicated no other abnormalities on exam. Tr. at 527.
Plaintiff continued to endorse generalized body aches on February 12, 2010. Tr. at 528. Dr. Ogugua noted a dual-energy x-ray absorptiometry ("DEXA") scan showed overt spinal osteoporosis and femoral neck osteopenia. Id. He indicated no abnormalities on physical exam. Tr. at 529. He again advised smoking cessation and instructed Plaintiff to maintain a record of her fasting blood glucose readings. Id.
On April 13, 2010, Plaintiff reported doing "fairly well," but endorsed problems with chronic pain, swelling, breathing, and uncontrolled blood sugar. Tr. at 583. Dr. Afulukwe noted Plaintiff had an obese body habitus, demonstrated bilateral rhonchi, and appeared to be in mild-to-moderate, chronic distress. Tr. at 584. He assessed fibromyalgia syndrome with generalized aches and pains and continued Plaintiff on the same medications. Id.
Plaintiff presented to Catawba Mental Health Center ("CMHC") for an intake evaluation on April 27, 2010. Tr. at 601-09. She endorsed depressed mood, crying spells, sleep and appetite disturbance, feelings of hopelessness and worthlessness, decreased energy, isolation and withdrawal from others, poor concentration, auditory hallucinations, anxiety, restlessness, feeling tense, panic attacks, avoidance of public places, irritability, outbursts of anger, and severe mood swings associated with uncontrollable anger. Id. She stated she remained in bed all day on three or four days per week. Id. Loreona P. White, M.A. ("Ms. White"), noted flat and tearful affect and anxious, depressed, and angry mood on mental status exam. Tr. at 606-07. She assessed psychotic disorder, not otherwise specified ("NOS"), mood disorder, NOS, anxiety disorder, NOS, and a GAF score of 55. Tr. at 609.
Plaintiff was hospitalized at SMH from May 2 to May 6, 2010, for chest pain, left facial cellulitis secondary to dental caries, diabetes, chronic obstructive pulmonary disease ("COPD"), hypertension, hyperlipidemia, and hypothyroidism. Tr. at 550. Dr. Afulukwe noted myocardial infarction had been ruled out and stated Plaintiff's chest pain was likely caused by acid reflux disease. Id.
Plaintiff presented to Chad Ritterspach, Psy. D. ("Dr. Ritterspach"), for a second psychological consultative exam on May 8, 2010. Tr. at 541-43. Dr. Ritterspach observed depressed mood and constricted affect on mental status exam. Tr. at 542. He indicated Plaintiff's memory and concentration were mildly impaired and she was functioning in the borderline to low-average range of intellectual functioning. Id. He described Plaintiff's memory and concentration as mildly impaired, her insight as fair, and her judgment as intact. Id. He diagnosed post-traumatic stress disorder ("PTSD") and moderate, recurrent major depressive disorder ("MDD") and assessed a GAF score of 55. Tr. at 543. He did not consider Plaintiff to be malingering. Id. He stated Plaintiff had "limited ability to sustain attention to perform simple, repetitive tasks" and "below-average ability to relate to others including fellow workers and supervisors due to her anxiety and avoidance behavior." Id. He noted Plaintiff might "have difficulties tolerating the mental stress and pressures associated with day-to-day work activity" and stated she needed assistance managing her finances. Id.
State agency consultant Craig Horn, Ph.D. ("Dr. Horn"), completed a psychiatric review technique ("PRT") on May 16, 2010, and a mental residual functional capacity ("RFC") assessment on May 19, 2010. Tr. at 68-81, 90-92. Dr. Horn considered Listings 12.04 for affective disorders and 12.06 for anxiety-related disorders and assessed mild restriction of activities of daily living ("ADLs"), moderate difficulties in social functioning, no episodes of decompensation, and moderate difficulties in maintaining concentration, persistence, or pace. Tr. at 68, 71, 73, 78. He assessed moderate limitations as to the following abilities: to understand and remember detailed instructions; to carry out detailed instructions; to maintain attention and concentration for extended periods; to work in coordination with or proximity to others without being distracted by them; to interact appropriately with the general public; and to travel in unfamiliar places or use public transportation. Tr. at 90-91. Dr. Horn indicated Plaintiff had the "ability for simple routine work away from [the] public." Tr. at 80.
State agency medical consultant Dale Van Slooten, M.D. ("Dr. Van Slooten"), completed a physical RFC assessment on May 19, 2010. Tr. at 82-89. He indicated Plaintiff had the following RFC: occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds; stand and/or walk for about six hours in an eight-hour workday; sit for about six hours in an eight-hour workday; occasionally crawling and climbing ladders, ropes, or scaffolds; frequently balancing, stooping, kneeling, crouching, and climbing ramps and stairs; and avoiding concentrated exposure to extreme cold and heat, hazards, fumes, odors, dusts, gases, and poor ventilation. Id.
On July 8, 2010, Dr. Ogugua increased Plaintiff's Lantus dosage and added Novolog and Glipizide for treatment of diabetes. Tr. at 587. Plaintiff reported skin irritation as a side effect of the new medications on August 5, 2010. Tr. at 592. Dr. Ogugua again increased Plaintiff's Lantus dosage and discontinued Glipizide. Tr. at 593. He added Tramadol for fibromyalgia-related pain. Id.
On October 28, 2010, Plaintiff complained of increased numbness in her hands, but indicated her blood glucose readings had improved. Tr. at 613. Dr. Ogugua observed bilateral lower paraspinal muscle tenderness. Id. He increased Neurontin, continued Plaintiff's other medications, and indicated he would refer Plaintiff for an MRI. Id.
A second state agency medical consultant, Seham El-Ibiary, M.D. ("Dr. El-Ibiary"), provided a physical RFC assessment on November 11, 2010. Tr. at 126-33. He indicated Plaintiff had the following RFC: occasionally lifting and/or carrying 20 pounds; frequently lifting and/or carrying 10 pounds; standing/walking for about six hours in an eight-hour workday; sitting for about six hours in an eight-hour workday; frequently climbing ramps and stairs; occasionally balancing, stooping, kneeling, crouching, crawling, and climbing ladders, ropes, and scaffolds; engaging in frequent bilateral handling and fingering; and avoiding concentrated exposure to fumes, odors, dusts, gases, poor ventilation, and hazards. Id.
On November 15, 2010, a second state agency consultant, Xanthia Harkness, Ph.D. ("Dr. Harkness"), completed a PRT, addressing the period from April 24, 2008, to June 30, 2009. Tr. at 98-110. She considered Listing 12.04, but determined the record contained insufficient evidence for the period. Tr. at 98. Dr. Harkness completed a second PRT and a mental RFC assessment for the period through October 31, 2010. Tr. at 112-24, 134-36. She considered Listings 12.04 and 12.06 and assessed no episodes of decompensation, mild restriction of ADLs, moderate difficulties in maintaining social functioning, and moderate difficulties in concentration, persistence, or pace. Tr. at 112, 115, 117, 122. She indicated Plaintiff was moderately limited in the following abilities: to understand and remember detailed instructions; to carry out detailed instructions; to maintain attention and concentration for extended periods; to interact appropriately with the general public; and to accept instructions and respond appropriately to criticism from supervisors. Tr. at 134-36. She stated Plaintiff's mental impairments "would not preclude simple, unskilled work in a job that does not require frequent public contact." Tr. at 124.
Plaintiff presented to CMHC for medication management on November 18, 2010. Tr. at 617. She endorsed auditory hallucinations, increased anxiety, irritability, and depression. Id. Deanna G. Cornelius, M.D. ("Dr. Cornelius"), prescribed Paxil and Vistaril and increased Plaintiff's dose of Abilify. Id.
On December 8, 2010, Plaintiff endorsed depression, auditory hallucinations, decreased appetite, poor sleep, lack of interest and motivation, chronic anxiety, panic attacks occurring three to four times per day, increased isolation, and daily crying spells. Tr. at 619. Dr. Cornelius noted the following abnormal findings on mental status exam: fair judgment and insight; dysthymic mood; and restricted affect. Tr. at 620. She assessed a GAF score of 55. Id. She increased Abilify to target psychosis and increased Paxil to target depression and anxiety. Tr. at 621.
On February 14, 2011, Plaintiff presented to the ER at SMH, complaining of pain that radiated from her lower back to her abdomen and left breast. Tr. at 624. Brian Walker, D.O. ("Dr. Walker"), noted no tenderness to palpation, normal inspection, and painless range of motion ("ROM"). Tr. at 626. He diagnosed right flank pain. Id.
Plaintiff presented to CMHC for individual therapy on March 16, 2011. Tr. at 659. Plaintiff's case manager, Susan Nicassio, M.A. ("Ms. Nicassio"), noted she appeared "very concerned at this time with medical issues." Id.
On April 1, 2011, Dr. Ogugua observed Plaintiff to demonstrate right lower paraspinal tenderness. Tr. at 638. He refilled Plaintiff's medications and increased her Neurontin dosage. Id.
On April 6, 2011, Plaintiff indicated she had run out of Abilify and Vistaril. Tr. at 660. She stated Vistaril was ineffective and Abilify improved her mood, but provided no relief for paranoia. Id. She indicated the increased dose of Paxil caused headaches and jitteriness. Id. Plaintiff endorsed irritability and an inability to relax. Id. Dr. Cornelius noted fair judgment and insight, dysthymic mood, and depressed affect on mental status exam. Tr. at 661. She assessed a GAF score of 55 and adjusted Plaintiff's medications. Tr. at 661, 662.
Dr. Ogugua noted tenderness in Plaintiff's right lower paraspinal muscles on April 27, 2011. Tr. at 645. He prescribed Soma and refilled Plaintiff's other medications. Id.
On June 24, 2011, Plaintiff complained of neck and back pain with numbness in her bilateral upper extremities. Tr. at 647. Dr. Ogugua observed Plaintiff to demonstrate good hand grip, intact gait, no pedal edema, and bilateral lower paraspinal muscle tenderness. Id. He completed a medical opinion form. Tr. at 650-54.
Plaintiff followed up for medication management at CMHC on June 27, 2011. Tr. at 658. Ms. Nicassio indicated Plaintiff appeared very uncomfortable and demonstrated a restricted affect. Id. Plaintiff complained Cymbalta was no longer effective. Id. She reported isolating in her home, increased crying spells, slight paranoia, decreased energy and motivation, and lack of interest. Id. She stated she had difficulty focusing and concentrating. Id. Ms. Nicassio indicated Plaintiff did not appear to meet criteria for psychiatric commitment. Id.
Plaintiff again followed up at CMHC on July 20, 2011. Tr. at 657. Ms. Nicassio indicated Plaintiff had not responded well to individual counseling or medications. Id.
On September 7, 2011, Plaintiff reported no improvement with the new medication. Tr. at 1123. She endorsed stressors and paranoia. Id. Dr. Cornelius observed Plaintiff to demonstrate a dysthymic mood and restricted affect. Tr. at 1124. She indicated Plaintiff had fair judgment and insight. Id. She diagnosed severe MDD with psychotic features, PTSD, and panic disorder with agoraphobia and assessed a GAF score of 55. Id. She increased Plaintiff's Oleptro dosage. Tr. at 1125.
Plaintiff endorsed a sense of impending doom on January 18, 2012. Tr. at 1126. She reported no benefit from the increased dose of medication. Id. Dr. Cornelius indicated she would decrease Abilify, wean Plaintiff off Oleptro, and start Pristiq. Tr. at 1128. Plaintiff participated in individual therapy sessions on March 2 and April 6, 2012. Tr. at 1129, 1130.
Plaintiff presented to the ER at SMH on April 16, 2012, for sharp, intermittent chest pain that radiated to her left arm. Tr. at 969. She indicated she had been experiencing the pain for about a week, but had been unable to afford to visit her primary care doctor. Id. Cardiac testing was normal. Tr. at 971. Sergio Zamorano, M.D. ("Dr. Zamorano"), diagnosed musculoskeletal chest pain, uncontrolled hypertension, and smoking abuse and adjusted Plaintiff's medications. Tr. at 973-75.
On May 17, 2012, Plaintiff reported feeling "pretty good," aside from having poor sleep. Tr. at 1131. She endorsed poor concentration and estimated she experienced two panic attacks per week. Id. Dr. Cornelius decreased Abilify, increased Paxil, and added Ambien for sleep. Tr. at 1133.
Plaintiff participated in individual therapy on May 31, 2012. Tr. at 1134. She reported positive energy, motivation, and interest and improved focus and concentration. Id. Ms. Nicassio indicated Plaintiff had a bright affect, excellent eye contact, and was alert and oriented. Id.
On September 11, 2012, Dr. Cornelius indicated Plaintiff was unable to tolerate a decreased dose of Abilify without experiencing psychosis. Tr. at 1137. She ordered lab work and adjusted Plaintiff's medications. Id.
Plaintiff was hospitalized for uncontrolled diabetes and nonketotic state from November 12 to November 14, 2012. Tr. at 976-78. Her blood sugar was over 800 upon admission. Tr. at 979. Dr. Afulukwe diagnosed uncontrolled diabetes, hyperlipidemia, hypothyroidism, and chronic pain syndrome. Id. He instructed Plaintiff to increase Lantus from 20 units to 40 units, four times a day, and to increase Novolog from five units to 10 units, three times a day. Id.
Plaintiff presented to Amit Shah, M.D. ("Dr. Shah"), for routine follow up on January 18, 2013. Tr. at 1205. Dr. Shah indicated no abnormalities on physical exam. Tr. at 1206-07.
Plaintiff endorsed stressors, but stated she was "doing good" on February 12, 2013. Tr. at 1138. Dr. Cornelius reduced Plaintiff's dose of Ambien. Tr. at 1140.
Dr. Shah noted no tender points during examination on February 28, 2013. Tr. at 1203-04. On March 28, 2013, Dr. Shah noted tenderness bilaterally in Plaintiff's anterior cervical spine, gluteals, greater trochanters, lateral epicondyles, occiput, knees, supraspinati, and trapezii. Tr. at 1199.
Plaintiff presented to the ER at SMH for chest and left arm pain on May 9, 2013. Tr. at 1100. An EKG was normal. Tr. at 1113. Plaintiff left the ER against medical advice. Id.
Plaintiff was hospitalized at SMH from May 12 to May 17, 2013, for cellulitis of the face and dental infection. Tr. at 981. She also complained of a stinging sensation in her feet and ankles. Id. She improved with antibiotics and received prescriptions for Percocet and Clindamycin on discharge. Tr. at 984.
On May 29, 2013, Plaintiff complained of pain "all over" and requested a medication change. Tr. at 1196. Dr. Shah reviewed Plaintiff's blood glucose readings and indicated they were between 100 and 200 mg/dL. Id.
On June 25, 2013, Plaintiff complained of sharp pain in her legs that sometimes caused difficulty walking. Tr. at 1193. She indicated Flexeril was not helping. Id. Dr. Shah observed no abnormalities on physical exam. Tr. at 1194-95.
Plaintiff reported moderate joint and lower back pain on July 29, 2013. Tr. at 1189. Dr. Shah prescribed Neurontin and Diflucan. Tr. at 1192.
Plaintiff presented to the ER at SMH for neck and back pain, following a motor vehicle accident on August 19, 2013. Tr. at 1100. X-rays and a computed tomography ("CT") scan were normal. Tr. at 1103.
Plaintiff reported stable back, neck, and joint pain on August 29, 2013. Tr. at 1184. Dr. Shah noted tenderness in multiple areas. Id. He prescribed Skelaxin 800 mg and Oxycodone-Acetaminophen 5-500 mg. Tr. at 1186-87.
On September 30, 2013, Plaintiff reported Flexeril was ineffective. Tr. at 1181. Dr. Shah noted multiple tender points. Id.
Plaintiff presented to the ER at SMH for a headache and numbness and tingling in her right arm on October 4, 2013. Tr. at 1088. A CT scan was normal. Tr. at 1089.
Plaintiff was hospitalized at Carolinas Medical Center Pineville from October 5 to October 7, 2013, for uncontrolled diabetes, hypertension, hyperlipidemia, and paresthesia secondary to uncontrolled diabetes. Tr. at 1152. She initially presented to the ER with complaints of right upper extremity weakness, numbness, tingling, and pins-and-needles sensation that had begun two days prior and discomfort in the back of her head and neck that had begun several hours prior. Tr. at 1149. She demonstrated slightly decreased motor strength of 4/5 and 4+/5 in her right upper extremity. Tr. at 1150.
On December 30, 2013, Plaintiff complained her medications were minimally effective. Tr. at 1178. She endorsed pain in her neck, upper back, and joints. Id. She reported improvement of fatigue and tingling sensations and indicated her symptoms had responded well to trigger point injections. Id. Nimish K. Patel ("Dr. Patel"), noted multiple tender points and painful and restricted cervical ROM with paracervical muscle spasm. Tr. at 1178, 1180. He diagnosed chronic pain syndrome, fibromyalgia, musculoskeletal neck disorder, and sprain/strain. Tr. at 1180.
Dr. Shah examined Plaintiff and continued her medications on March 3, 2014. Tr. at 1173-76.
Plaintiff was hospitalized at SMH from March 19 to March 22, 2014, for dyspnea. Tr. at 989. Joon Dong Kim, M.D. ("Dr. Kim"), diagnosed acute hypoxic respiratory distress, secondary to COPD exacerbation; acute COPD exacerbation; bilateral pneumonia, likely bacterial and community-acquired; uncontrolled insulin-dependent diabetes mellitus type 2; chest tightness, acute myocardial infarction ruled out; and morbid obesity with a body mass index ("BMI") of 40.2. Tr. at 993.
Plaintiff followed up with Dr. Patel on March 28, 2014. Tr. at 1168-72. She indicated Levaquin had caused her tongue to swell and difficulty swallowing. Tr. at 1168. She complained Flexeril and Oxycodone were only minimally effective for her chronic pain. Id. She indicated trigger point injections had provided some relief and endorsed improved fatigue and tingling. Id. Dr. Patel observed tenderness bilaterally in Plaintiff's anterior cervical spine, gluteals, greater trochanters, epicondyles, occiput, knees, supraspinati, and trapezii. Id. He also noted painful and restricted cervical ROM with paracervical muscle spasm. Tr. at 1171. He administered a Diphenhydramine injection. Tr. at 1167.
On March 29 and 30, 2014, Plaintiff presented to the ER at SMH following an acute allergic reaction to Levaquin. Tr. at 1061-65, 1069-74.
Plaintiff followed up with Dr. Cornelius on April 29, 2014. Tr. at 1141-43. She reported she had missed multiple mental health follow up visits because of her physical problems.
Plaintiff presented to the ER at SMH on July 27, 2014, for chest pain. Tr. at 997. Jad Ghandour, M.D. ("Dr. Ghandour"), indicated Plaintiff's chest pain was likely pleuritic based on her symptoms. Tr. at 998. He noted Plaintiff's diabetes was poorly-controlled and recommended a cardiology consultation. Id.
On August 4, 2014, Randall S. Barre, M.D. ("Dr. Barre"), continued Plaintiff's medications. Tr. at 952.
Plaintiff was hospitalized at SMH from August 15 to August 18, 2014, after being involved in a motor vehicle accident secondary to a syncopal episode. Tr. at 1000-03. An electroencephalogram ("EEG") was mostly normal, aside from possible focal slowing intermittently at the right temporal region. Tr. at 1009. Dr. Kim opined Plaintiff's syncope was likely caused by a combination of pain medication and sleep deprivation. Tr. at 1003. Sushma Banda, M.D. ("Dr. Banda"), decreased Plaintiff's dosages of Paxil and Abilify. Tr. at 1004.
Plaintiff complained of feeling jittery and panicked on September 17, 2014. Tr. at 1145. She reported she was unable to drive until she obtained another EEG, which she could not afford. Id. Dr. Cornelius indicated she would adjust Plaintiff's medications after consulting with her other physicians. Tr. at 1147.
On November 5, 2014, Plaintiff complained of migratory joint pain and stiffness that was exacerbated by movement. Tr. at 1158. Salvator Bianco, M.D. ("Dr. Bianco"), prescribed Percocet for chronic pain and instructed Plaintiff to discontinue acetaminophen and to take ibuprofen 600 mg three times a day as needed for acute pain. Tr. at 1160.
On November 19, 2014, Lori Juarez, APRN, examined Plaintiff and noted diminished/absent sensation and abnormal monofilament wire test in Plaintiff's right foot. Tr. at 957. She refilled Plaintiff's medications. Id.
On January 26, 2015, Plaintiff reported a recent diabetes-related blackout. Tr. at 1404. She indicated the physician at the hospital had reduced her dose of Paxil, causing her to feel down and depressed. Id. She endorsed low energy and motivation, increased irritability, and daily panic attacks. Id. Dr. Cornelius observed Plaintiff to demonstrate an irritable, anxious, and depressed mood. Tr. at 1405. She stated Plaintiff's affect was appropriate, but constricted. Id. She adjusted Plaintiff's medications. Tr. at 1406.
Plaintiff underwent electromyography ("EMG") and nerve conduction studies ("NCS") on February 11, 2015. Tr. at 1148. They showed bilateral lumbar radiculitis, as well as moderate bilateral sural sensory neuropathy and right saphenous neuropathy of the bilateral feet. Id. However, the study was technically limited, as Plaintiff's edema might have shown a decrease in her motor nerve responses. Id.
On April 17, 2015, Plaintiff reported she had been out of insulin for three weeks. Tr. at 1334. Sharon Browning, M.D. ("Dr. Browning"), observed Plaintiff to have 1+ bilateral lower extremity edema. Tr. at 1337. She noted Plaintiff's hemoglobin A1c was elevated at 11.2%. Id. She diagnosed uncontrolled diabetes and acute bronchitis, prescribed Humalog and Levemir, and refilled medications for hypertension and hyperlipidemia. Tr. at 1337-38.
Regina K. Beckham, R.N. ("Nurse Beckham"), noted Plaintiff's blood pressure was elevated during a mental health follow up visit on April 28, 2015. Tr. at 1408. She advised Plaintiff to follow up with her primary care provider. Id.
On May 18, 2015, Dr. Browning noted Plaintiff continued to demonstrate wheezing and bilateral lower extremity edema. Tr. at 1343. She continued Plaintiff's medications. Tr. at 1343-44.
Plaintiff presented to the ER at SMH on June 1, 2015, for pain and swelling in her legs. Tr. at 1261. Narendra Patel, M.D., ordered intravenous administration of Lasix and advised Plaintiff to follow up with Dr. Shah. Tr. at 1262-63.
On June 11, 2015, Plaintiff presented to the ER with complaints of pain, following a motor vehicle accident. Tr. at 1268. Shashank Mishra, M.D. ("Dr. Mishra"), diagnosed lumbar strain and myofascial cervical strain. Tr. at 1272.
Plaintiff again presented to the ER at SMH on June 14, 2015. Tr. at 1273. Naguib Farah, M.D., assessed dependent edema and cellulitis. Tr. at 1278.
On July 15, 2015, Dr. Browning observed Plaintiff to demonstrate 1+ bilateral lower extremity edema. Tr. at 1349. She adjusted Plaintiff's medications and encouraged her to be compliant with medications and to cease smoking. Tr. at 1349.
Plaintiff presented to the ER at SMH on August 13, 2015, for pain in her back and right leg. Tr. at 1279. Charles Eaves, M.D. ("Dr. Eaves"), ordered a Decadron injection and prescribed ibuprofen 600 mg and Prednisone. Tr. at 1383-84.
Plaintiff again presented to the ER with vomiting and leg pain on August 16, 2015. Tr. at 1285-86. She described bilateral pain that radiated from her hip joints into her feet. Tr. at 1285. Dr. Eaves diagnosed osteoarthritis and hypokalemia and prescribed Prednisone. Tr. at 1289.
On August 17, 2015, Dr. Shah completed a medical opinion questionnaire. Tr. at 1210. He answered "[n]o" to the following: "[f]rom her neuropathy alone, on an 8 hour day, 5 day per week basis, can Johnnie Massey engage in anything more than SEDENTARY work. . . ." Id. He answered "yes" to the following: [f]rom her neuropathy alone, if Johnnie Massey attempted to work on an 8 hour day, 5 day per week basis, is it most probable that Johnnie Massey would have problems with attention to and concentration sufficient to frequently interrupt tasks during the work portion of the work day?" Id. He stated Plaintiff's diagnoses included uncontrolled type II diabetes, hypertension, and hypothyroidism. Id. He indicated Plaintiff was impaired as described beginning September 27, 2012. Id.
Dr. Browning observed Plaintiff to demonstrate bilateral 1+ lower extremity edema on November 11, 2015. Tr. at 1354. She noted Plaintiff's hemoglobin A1c had decreased, but remained elevated at 9.7%. Id. She continued Plaintiff's medications. Tr. at 1355.
On November 22, 2015, Plaintiff presented to the ER at SMH with burning pain in her legs and feet. Tr. at 1291. She rated her pain as an eight of 10. Id. Dr. Eaves diagnosed chronic pain syndrome and diabetes with diabetic neuropathy. Tr. at 1296. He advised Plaintiff to follow up with her primary care provider. Id.
Plaintiff complained of feeling depressed and overwhelmed during a medication management visit on December 16, 2015. Tr. at 1410. She reported feeling panicked and overwhelmed on January 20, 2016. Tr. at 11. Dr. Cornelius observed Plaintiff to demonstrate an anxious and irritable mood and a constricted affect. Tr. at 1412. She prescribed Remeron and continued Plaintiff's other medications. Tr. at 1413.
On February 10, 2016, Plaintiff presented to Dr. Browning with right facial droop, following a syncopal episode. Tr. at 1356, 1359. Dr. Browning referred Plaintiff to the ER. Tr. at 1360. Plaintiff was subsequently hospitalized at SMH from February 10 to 16, 2016, for syncope and suspected transient ischemic attack. Tr. at 1230, 1232.
Plaintiff followed up with Dr. Browning on February 17, 2016. Tr. at 1361. Dr. Browning ordered lab work and continued Plaintiff's medications. Tr. at 1365.
On February 25, 2016, Plaintiff rated her mood as a seven of 10. Tr. at 1415. She endorsed daily anxiety and low energy, but reported her medications were effective. Id. Jennifer L. Peace, BSN ("Nurse Peace"), noted Plaintiff had not started Remeron because of its cost. Id. She indicated she would discuss a plan of action with a psychiatrist. Id.
Plaintiff presented to the ER at SMH with left-sided pain on March 29, 2016. Tr.at 1314. Dr. Mishra diagnosed acute myofascial strain and acute left lower chest wall pain. Tr. at 1319.
On May 25, 2016, Plaintiff complained of chest pain and swelling in her feet. Tr. at 1367. Dr. Browning observed non-pitting edema. Tr. at 1370. She referred Plaintiff to a cardiologist and refilled her medications. Tr. at 1371.
Plaintiff also presented to CMHC for medication monitoring on May 25, 2016. Tr. at 1418. She reported feeling unmotivated and having low energy, but denied depression, anxiety, and side effects of medication. Tr. at 1419. Nurse Peace observed Plaintiff to be cooperative and easily engaged. Id.
Plaintiff presented to Carlos A. Albrecht, M.D. ("Dr. Albrecht"), for a cardiology consultation on June 6, 2016. Tr. at 1393. She complained of poor sleep, leg edema, and lower extremity neuropathy. Id. Dr. Albrecht assessed class II coronary artery disease and indicated it appeared to be multifactorial. Id. He ordered additional diagnostic testing and continued Plaintiff's medications. Tr. at 1395.
Plaintiff visited CMHC for medication monitoring on June 14, 2016. Tr. at 1420. She endorsed slight depression and low energy and motivation. Id. Nurse Beckham continued Paxil and Remeron. Id.
On June 29, 2016, Plaintiff presented to Beatrice B. Kaye, M.S. ("Ms. Kaye"), for an initial clinical assessment for depression and anxiety. Tr. at 1422-26. Ms. Kaye noted the following on mental status exam: appropriately oriented; depressed mood; normal speech and thoughts; and poor memory. Tr. at 1424-25. She diagnosed MDD with psychotic features, PTSD, and panic disorder. Tr. at 1425. She stated the following:
Tr. at 1426.
On August 2, 2016, Randall Moss, M.D. ("Dr. Moss"), completed a medical opinion form. Tr. at 1382. He indicated Plaintiff's neuropathy prevented her from engaging in "anything more than SEDENTARY work." Id. He indicated Plaintiff's neuropathy would probably cause problems with attention and concentration "sufficient to frequently interrupt tasks during the work portion of the day." Id. He stated Plaintiff's diagnoses included chronic pain and neuropathy. Id. He indicated his opinion was based on NCS results and physical exam. Id. He stated Plaintiff had been impaired as described for two to three years, but that her condition was "progressive." Id.
On August 3, 2016, Plaintiff complained of pain and poor concentration, but reported improved sleep with the addition of Remeron. Tr. at 1427. She indicated she had a headache, and her blood pressure was elevated at 171/100 mm/Hg. Tr. at 1427-28. Dr. Cornelius noted depressed mood, but no other abnormalities on mental status exam. Tr. at 1428. She continued Plaintiff's medications, but indicated she might have to adjust them in the future because of their cost. Tr. at 1429.
Plaintiff also followed up with Dr. Albrecht on August 3, 2016. Tr. at 1390. She reported her edema had improved on Lasix. Id. She endorsed markedly elevated blood pressure. Id. Dr. Albrecht diagnosed acute-on-chronic diastolic congestive heart failure. Tr. at 1392. He continued Plaintiff's medications and recommended smoking cessation. Id.
On August 24, 2016, Plaintiff complained she felt as if her left arm and leg were "jumping." Tr. at 1388. Dr. Browning continued Plaintiff's medications. Tr. at 1389.
Plaintiff presented to Dr. Browning with pain and swelling on September 12, 2016. Tr. at 1383. Dr. Browning ordered blood work and urinalysis and continued Plaintiff's medications. Tr. at 1386.
On October 26, 2016, Plaintiff presented to the ER at SMH, following a car accident. Tr. at 1444. She complained of pain in her back, neck, and left leg. Id. Dr. Eaves assessed muscle spasms and acute back pain. Tr. at 1449.
Plaintiff was admitted to SMH from November 26 to November 28, 2016, for shortness of breath. Tr. at 1432. Djarmendra Bhaskaran, M.D. ("Dr. Bhaskaran"), noted decreased air movement, diffuse bilateral wheezing, and trace bilateral pedal edema. Tr. at 1433. Yuriy Kulyak, M.D. ("Dr. Kulyak"), diagnosed COPD with exacerbation due to acute bronchitis, diastolic congestive heart failure, poorly-controlled diabetes, musculoskeletal chest pain, hypothyroidism, chronic pain syndrome, depression, anxiety, essential hypertension, and nicotine addiction. Tr. at 1437-38.
Plaintiff was again admitted to SHM for acute hypokenic respiratory failure secondary to acute bronchitis and COPD exacerbation, diabetes, chest pain, chronic pain syndrome, hypothyroidism, and diastolic congestive heart failure from December 2 to December 5, 2016. Tr. at 1440. Surendar Bhandari, M.D., discharged Plaintiff with an order to follow up for cardiac catheterization in two weeks. Tr. at 1440-43.
At the hearing, Plaintiff testified she was doing poorly, having been in the hospital over the prior weekend with shortness of breath and fluid in her lungs. Tr. at 777-78, 781. She testified she hurt all over, with sharp stabbing pains and sometimes dull, achy pains from the waist down. Tr. at 781. She said she could not stand and walk due to numbness, sharp pain, tingling, and swelling. Id. She stated her legs were typically not swollen when she woke in the morning, but would swell once she began to move around for an hour or more. Tr. at 781-82, 785. She indicated she would lie flat on her back and elevate her feet for two-and-a-half to three hour after they began to swell. Tr. at 782-83. She stated propping her feet up had been ineffective, but she continued to do it because she was following her doctor's instruction. Id. She conceded that the swelling would reduce overnight. Tr. at 783. She described the swelling as occurring over the prior year and the numbness and tingling as occurring for two years. Tr. at 783-84. Plaintiff estimated being able to move about for an hour before having to sit for 35 to 45 minutes. Tr. at 784-85.
Plaintiff testified she attended mental health treatment visits. Tr. at 785. She indicated her diagnoses included PTSD, severe depression, panic attacks, and anxiety. Id. She described hearing voices and a bell. Id.
Plaintiff testified she lived alone in a single level home. Tr. at 786-87. She said she had stopped working in 2004 because numbness and tingling in her hands prevented her from passing a required physical exam. Tr. at 787. She indicated she had been denied Medicaid several times. Id. She stated she received $150 food stamps, a voucher for Section 8 housing, and $500 from her father each month. Id.
Plaintiff testified she did not own a car, but had access to a car that she drove around town on a limited basis and only when necessary. Tr. at 788-89. She suspected she had sleep apnea, but stated she could not afford testing to confirm a diagnosis. Tr. at 789. She described having blacked out in August 2015 in an accident where she collided with a wall and another car. Tr. at 789-90. She said she could not work in a job sorting bolts because of her tendency to fall asleep. Tr. at 790. She said she would fall asleep watching television. Id.
An unidentified Vocational Expert ("VE") reviewed the record and testified at the hearing. Tr. at 792-94. The VE categorized Plaintiff's PRW as a fast food worker as light, specific vocational preparation ("SVP") of 2, Dictionary of Occupational Titles ("DOT") No. 311.472-010; as a cloth winder as unskilled, medium, SVP of 2, DOT No. 689.685-046, and as an electronics tester as semi-skilled, light, SVP of 2, DOT No. 726.684-026. Tr. at 792. The ALJ described a hypothetical individual of Plaintiff's vocational profile who could do a full range of light work except limited to a sit/stand option with the ability to change position twice per hour; never climb ropes, ladders, and scaffolds; occasionally climb ramps and stairs; occasionally balance, stoop, kneel, crawl, and crouch; frequently reach, handle, and finger bilaterally; avoid concentrated exposure to unprotected heights and other dangers and hazardous conditions and concentrated exposure to dust, fumes, and gases; limited to simple, routine, repetitive tasks of unskilled work, low stress work, meaning no constant change in routine, no complex decision-making and no crisis situations; occasional interaction with the public, supervisors, and coworkers; and could stay on task for two hours at a time throughout the workday. Tr. at 793. The VE testified that the hypothetical individual could perform the following unskilled, light positions with SVP of 2: (1) inspector and hand packager, DOT No. 559.687-074; (2) order caller, DOT No. 209.667-014; and (3) work-ticket distributor, DOT No. 221.667-010, with 508,590, 2,994,050, 272,910 positions available nationally, respectively. Tr. at 793-94. The VE testified there would be no transferable skills from Plaintiff's PRW. Tr. at 794.
In his decision, the ALJ made the following findings of fact and conclusions of law:
Tr. at 681-94.
Plaintiff alleges the Commissioner erred for the following reasons:
The Commissioner counters that substantial evidence supports the ALJ's findings and that the ALJ committed no legal error in her 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, 460 (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. Subpart P, §§ 404.1520(a), (b), 416.920(a), (b); 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 that claimant can perform alternative work and that such work exists in the regional 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 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, 1157-58 (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. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 390, 401; 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). 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 erred in failing to identify and resolve a conflict between the VE's testimony and the DOT. [ECF No. 10 at 29-31]. She claims the jobs the VE identified, which required general educational development ("GED") reasoning level two, conflicted with the restriction in the RFC assessment to "simple, routine, repetitive tasks." Id. at 30.
The Commissioner argues the VE's testimony did not conflict with the DOT. [ECF No. 11 at 6-10]. He maintains the Fourth Circuit's recent decision in Lawrence v. Saul, 941 F.3d 140 (4th Cir. 2019), refutes Plaintiff's claim of an apparent conflict between "simple, routine, repetitive tasks" and jobs described in the DOT as having a GED reasoning level of two. [ECF No. 19 at 2].
At the fifth step of the evaluation process, "[t]he Commissioner bears the burden to prove that the claimant is able to perform alternative work." Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015), citing Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). The Social Security Administration ("SSA") relies primarily on the DOT for information about the requirements of work in the national economy, and ALJs should take administrative notice of information contained therein and consider it in assessing claimants' abilities to perform specific jobs. 20 C.F.R. §§ 404.1566(d), 416.966(d). ALJs obtain testimony from VEs to address more complex vocational issues, such as whether claimants' work skills can be used in other work and specific occupations that allow for use of particular skills. 20 C.F.R. §§ 404.1566(e), 416.966(e).
The SSA promulgated SSR 00-4p to explain how conflicts between the DOT and VE testimony should be resolved. The "purpose" of SSR 00-4p "is to require the ALJ (not the vocational expert) to `[i]dentify and obtain a reasonable explanation' for conflicts between the vocational expert's testimony and the Dictionary, and to `[e]xplain in the determination or decision how any conflict that has been identified was resolved.'" Pearson, 810 F.3d at 208, citing SSR 00-4p (emphasis in original). Pursuant to SSR 00-4p, "[f]irst, the ALJ must `[a]sk the [vocational expert] . . . if the evidence he or she has provided conflicts with the information provided in the [Dictionary]'; and second, `[i]f the [vocational expert]'s . . . evidence appears to conflict with the [Dictionary],' the ALJ must `obtain a reasonable explanation for the apparent conflict.'"
In Thomas v. Berryhill, 916 F.3d 307, 313-14 (4th Cir. 2019), the court found an apparent conflict between an RFC limiting the plaintiff to jobs involving "short, simple instructions" and the "detailed but uninvolved instructions" required in jobs having a GED reasoning level of two. The court remanded the case in light of the ALJ's failure to identify and resolve the apparent conflict. Id. However, the court recently drew a distinction between "short, simple instructions" and "simple, routine, repetitive tasks" in Lawrence v. Saul, 941 F.3d at 143. The court explained "short" was inconsistent with the "detailed" instructions required at GED reasoning level two because "detail and length are highly correlated," but found "no comparable inconsistency between [the plaintiff's] residual functional capacity [for `simple, routine repetitive tasks of unskilled work'] and Level 2's notions of `detailed but uninvolved . . . instructions' and tasks with `a few [ ] variables.'" Id. (citing DOT, App. C, 1991 WL 688702). Thus, the Fourth Circuit recognizes an RFC for short, simple instructions as apparently conflicting with jobs at GED reasoning level two, but finds no apparent conflict between an RFC for simple, routine, repetitive tasks and GED reasoning level two.
The ALJ included in the RFC assessment a provision for "simple, routine, repetitive tasks." Tr. at 686. He relied on the VE's testimony to conclude Plaintiff's RFC would allow her to perform the jobs of inspector and hand packager, order caller, and work ticket distributor. Tr. at 693-94. The DOT describes the three jobs as requiring GED reasoning level two. See 559.687-074, INSPECTOR AND HAND PACKAGER. DOT (4th Ed., revised 1991), 1991 WL 683797; 209.667-014, ORDER CALLER. DOT (4th Ed., revised 1991), 1991 WL 671807; 221.667-010, WORK-TICKET DISTRIBUTOR. DOT (4th Ed., revised 1991), 1991 WL 672062.
The assessed RFC is more like the RFC found to create no apparent conflict in Lawrence than the RFC found to create an apparent conflict in Thomas. Because the ALJ limited Plaintiff to "simple, routine tasks," as opposed to "short instructions" or "short, simple instructions," there appears to be no conflict. Given the foregoing, the ALJ did not err in citing jobs with a GED reasoning level of two to sustain his burden at step five, as there is no apparent conflict between the VE's identification of the jobs in response to the hypothetical RFC and the information contained in the DOT.
On June 24, 2011, Dr. Ogugua completed a physical RFC questionnaire. Tr. at 650-54. He indicated he had examined Plaintiff every three months since 2005. Tr. at 650. He provided diagnoses of fibromyalgia syndrome, cervical spondylosis, and neuropathy. Id. He stated Plaintiff's prognosis was guarded. Id. He indicated Plaintiff's symptoms included neck and back pain, body aches, and numbness. Id. He described generalized body aches and constant neck and back pain. Id. He noted tender points and bilateral lower paraspinal muscle tenderness supported Plaintiff's diagnoses. Id. He stated Plaintiff had shown fair response to treatment that included analgesics, muscle relaxants, and anti-neuropathic pain medications. Id. He indicated Plaintiff was not a malingerer. Tr. at 651. He stated emotional factors and psychological conditions, including depression, contributed to the severity of Plaintiff's symptoms and functional limitations. Id. He stated Plaintiff's impairments were reasonably consistent with the symptoms and functional limitations he described. Id. He estimated Plaintiff's experience of pain or other symptoms was constantly severe enough to interfere with attention and concentration needed to perform even simple work tasks. Id. He stated Plaintiff was incapable of even "low stress" jobs because she was "in constant painful distress." Id. He estimated Plaintiff could walk one-to-two city blocks without rest or severe pain; could sit for 30-45 minutes at a time; could stand for 10 minutes at a time; could sit for about four hours in an eight-hour workday; could stand/walk for about two hours in an eight-hour workday; would need to include periods of walking around for 15 of every 30 minutes during an eight-hour workday; could never lift 50 pounds; could rarely lift 20 pounds; could occasionally lift 10 pounds; could frequently lift less than 10 pounds; could occasionally turn her head left or right; could frequently look up and down and hold her head in a static position; could rarely crouch/squat, stoop/bend, and climb ladders; and could occasionally twist and climb stairs. Tr. at 651-53. He indicated Plaintiff would require a job that permitted shifting positions at will from sitting, standing, or walking; would sometimes need to take unscheduled breaks during an eight-hour workday; and would require use of a cane or other assistive device while engaging in occasional standing/walking. Tr. at 652. He indicated Plaintiff had significant limitations with reaching, handling, and fingering and estimated she could grasp, turn, and twist objects with her right hand less than 50% of the time and with her left hand greater than 50% of the time; perform fine manipulations with her right hand less than 50% of the time and with her left hand greater than 50% of the time; and reach with her bilateral arms greater than 50% of the time. Tr. at 653. He indicated the described symptoms and limitations applied as early as 2005. Tr. at 654.
Plaintiff argues the ALJ failed to properly weigh Dr. Ogugua's opinion as to work-preclusive limitations. [ECF No. 10 at 33-36]. She maintains the ALJ erred in discrediting Dr. Ogugua's opinion based on an absence of evidence to support a fibromyalgia diagnosis, as Dr. Ogugua relied on other evidence to support the diagnosis and the ALJ determined fibromyalgia was among her severe impairments. Id. at 34-35. She claims Dr. Ogugua's opinion is supported by his observations and consistent with opinions from Drs. Shah and Moss. Id. at 35-36.
The Commissioner argues the ALJ reasonably concluded the functional limitations Dr. Ogugua alleged were not supported by the record. [ECF No. 11 at 12-13]. He maintains the ALJ discounted, but did not reject, Dr. Ogugua's opinion, and did so based on Plaintiff's limited treatment for her alleged pain. Id. at 14.
The applicable regulations direct ALJs to give controlling weight to treating physicians' medical opinions that are well supported by medically-acceptable clinical and laboratory diagnostic techniques and that are not inconsistent with the other substantial evidence of record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
If a treating physician's opinion is not well supported by medically-acceptable clinical and laboratory diagnostic techniques or if it is inconsistent with the other substantial evidence of record, the ALJ may decline to give it controlling weight. SSR 96-2p, 1996 WL 374188, at *2 (1996). However, the ALJ's assessment of the treating physician's opinion does not end with the finding that it is not entitled to controlling weight. Johnson, 434 F.3d at 654; SSR 96-2p, 1996 WL 374188, at *4 (1996). The ALJ must weigh the treating physician's opinion, in addition to all other medical opinions of record, based on the factors in 20 C.F.R. § 404.1527(c) and 416.927(c), which include "(1) whether the physician has examined the applicant, (2) the treatment relationship between the physician and the applicant, (3) the supportability of the physician's opinion, (4) the consistency of the opinion with the record, and (5) whether the physician is a specialist." Johnson, 434 F.3d at 654 (citing 20 C.F.R. § 404.1527).
"[T]he ALJ holds the discretion to give less weight to the testimony of a treating physician in the face of persuasive contrary evidence." Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2011) (citing Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992)). However, if the ALJ issues a decision that is not fully favorable, his decision "must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reason for that weight." SSR 96-2p, 1996 WL 374188, at *5 (1996). The ALJ must "always give good reasons" for the weight he accords to a treating physician's opinion. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). The court should not disturb an ALJ's determination "absent some indication that the ALJ has dredged up `specious inconsistencies,' Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992), or has not given good reason for the weight afforded a particular opinion." Craft v. Apfel, 164 F.3d 624 (Table), 1998 WL 702296, at *2 (4th Cir. 1998) (per curiam).
The ALJ acknowledged Plaintiff received primary care treatment from Dr. Ogugua after 2008. Tr. at 681. The ALJ summarized Plaintiff's treatment with Dr. Ogugua as follows:
Tr. at 688. He further noted:
Id.
The ALJ summarized Dr. Ogugua's opinion and concluded "it appear[ed] Dr. Ogugua based his residual functional capacity on the claimant's subjective complaints rather than any of his own objective observations." Tr. at 688. He further stated "Dr. Ogugua's objective observations as well as his documentation of the severity of the symptoms as reported by the claimant at office visits do not match the limitations provided in the medical source statement." Id. He set forth diagnostic criteria for fibromyalgia and stated "Dr. Ogugua also never noted any sensory abnormalities and in fact noted that the claimant had `good hand grips' and no pedal edema on examination on June 24 (Exhibit C16F)." Id. He stated he had given "some weight" to Dr. Ogugua's opinion. Id. However, he later stated he had "assigned little weight" to Dr. Ogugua's opinion about Plaintiff's ability tolerate work stress and the extent to which her attention and concentration were limited because "[h]e made no mental status observations or documented any related complaints (Exhibit C17F)." Tr. at 692.
The ALJ considered Dr. Ogugua's opinion inconsistent with Dr. Afulukwe's opinion. Tr. at 688-89. He wrote: "Dr. Afulukwe stated that although the claimant had clinical evidence for problems involving her hands and feet as well as breathing difficulties, he suspected that smoking cessation as well as the appropriate evaluation and treatment for her underlying conditions may allow the claimant to function in an occupational setting." Id. The ALJ also considered Dr. Ogugua's opinion as to Plaintiff's mental limitations inconsistent with the state agency consultants' opinions, the majority of Dr. Ritterspach's opinion,
Upon initial review, the ALJ appears to have complied with the requirements of 20 C.F.R. §§ 404.1527(c) and 416.927(c) and cited substantial evidence to support his decision to give "some" weight to parts of Dr. Ogugua's opinion and "little weight" to other parts of the opinion. The ALJ provided a lengthy explanation to support his finding that Dr. Ogugua's opinion was not entitled to controlling weight, as it was not well-supported by medically-acceptable clinical and laboratory diagnostic techniques and was inconsistent with the other substantial evidence of record. See Tr. at 688-89. He also appears to have considered the other relevant factors in 20 C.F.R. §§ 404.1527(c) and 416.927(c), acknowledging the examining and treating relationship between Plaintiff and Dr. Ogugua, Dr. Ogugua's observations during examinations, and perceived inconsistencies between Dr. Ogugua's opinion and the other evidence of record. See id.
However, the ALJ's analysis is flawed in much the same way that ALJ Sage's analysis was flawed in the 2011 decision. The court previously remanded the case because ALJ Sage provided some adequate reasons for discounting Dr. Ogugua's opinion, but erroneously considered evidence consistent with the opinion to be inconsistent.
Here, the ALJ's analysis is infected with several errors. As Plaintiff strenuously argues, the ALJ discounted Dr. Ogugua's opinion, in part, because Dr. Ogugua attributed her limitations to an unsubstantiated fibromyalgia diagnosis, while also finding fibromyalgia to be among her severe impairments. See Tr. at 681 (stating "[t]he claimant has the following severe impairments: . . . fibromyalgia"), 688 (finding Dr. Ogugua's observations and documentation did not meet diagnostic criteria for fibromyalgia). The ALJ's discrediting of Dr. Ogugua's fibromyalgia diagnosis makes little sense given the transient nature of fibromyalgia-related symptoms and his acknowledgment of Dr. Ogugua's notations of generalized pain. See Tr. at 687 (stating "Dr. Ogugua reported that the claimant was still having generalized body aches" in February 2010), 688 (noting "Dr. Ogugua documented complaints for multiple joint and back pain" and diagnosed "diffuse bone pain" in September 2009; indicating Plaintiff "complained of generalized body aches" in February 2010; acknowledging Plaintiff complained of "chronic pains" and Dr. Ogugua assessed fibromyalgia syndrome "with generalized aches and pains" in April 2010; identifying "bilateral lower paraspinal muscle tenderness" in October 2010; noting "tenderness over the upper right paraspinal area" in April 2011; indicating complaints of "neck and back pain" in June 2011); see also SSR 12-2p, 2012 WL 3104869, at *2 and *6 (providing "[f]ibromyalgia is a complex medical condition characterized by widespread pain in the joints, muscles, tendons, or nearby soft tissues," and its symptoms "can wax and wane so that a person may have `bad days and good days.'").
The ALJ further erred in considering whether Dr. Ogugua's opinion was consistent with other evidence of Plaintiff's mental impairments. Tr. at 651. Dr. Ogugua's opinion that emotional factors contributed to the severity of Plaintiff's symptoms is consistent with the impressions of Plaintiff's other medical providers. See Tr. at 388 (reflecting Dr. Patel's suspicion that "a good portion" of Plaintiff's symptoms were related to depression), 402 (indicating Dr. Whitley considered it necessary to rule out a pain disorder diagnosis), 688 (reflecting Ms. Kaye's assessment that Plaintiff's mental functioning was affected by difficulty coping with chronic pain). Dr. Ogugua's indications that Plaintiff's pain and symptoms were constantly severe enough to interfere with attention and concentration needed to perform even simple work tasks and that she was incapable of even "low stress" jobs appear to be consistent with Dr. Ritterspach's opinions that Plaintiff had "limited ability to sustain attention to perform simple, repetitive tasks," "below-average ability to relate to others including fellow workers and supervisors due to her anxiety and avoidance behavior," and might "have difficulties tolerating the mental stress and pressures associated with day-to-day work activity." Tr. at 543. Dr. Ogugua's opinions also appear to be consistent with Dr. Whitley's opinions to the extent that Dr. Whitley indicated Plaintiff may have difficulty "stand[ing] upright and focus[ing] for timely completion of tasks" and was "somewhat vulnerable to decompensate further" if subjected to "sustained demands and expectations." Tr. at 403.
The ALJ also failed to consider consistencies between Dr. Ogugua's opinion and the opinions of Drs. Shah and Moss and provided a flawed reason for discounting Dr. Shah's opinion. Like Dr. Ogugua, Drs. Shah and Moss indicated Plaintiff's ability to complete a workday and workweek would be compromised by frequent interruptions to attention and concentration. See Tr. at 1210, 1382. The ALJ stated he gave "some weight" to Dr. Moss's opinion that Plaintiff's neuropathy would preclude her from performing work above the sedentary exertional level and that her problems with attention and concentration would cause frequent interruption to tasks," Tr. at 689, but he did not explain how he credited this weight in the RFC assessment. The ALJ acknowledged Dr. Shah had provided a medical opinion that would preclude the claimant from all work, but gave "little weight to this conclusory statement about the claimant's functional limitations from the claimant's neuropathy, given that Dr. Shah is a cardiologist."
In light of the foregoing, the undersigned recommends the district judge find the ALJ's decision unsupported by substantial evidence to the extent that he failed to adequately weigh the treating physician's opinion.
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:
