C. A. 1:23-3233-MGL-SVH
02-28-2024
Beverly F. C.,[1] Plaintiff, v. Martin O'Malley, Commissioner of Social Security Administration,[2] Defendant.
Shiva V. Hodges, United States Magistrate Judge
REPORT AND RECOMMENDATION
Shiva V. Hodges, United States 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 Disabled Widow Benefits (“DWB”). 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 the Commissioner's decision be affirmed.
I. Relevant Background
A. Procedural History
On June 5, 2018, Plaintiff protectively filed applications for DIB and DWB in which she alleged her disability began on May 27, 2017. Tr. at 97, 100, 222-23, 224-25. Her applications were denied initially and upon reconsideration. Tr. at 139-42, 143-46, 149-54, 155-61. On January 23, 2020, Plaintiff had a hearing before Administrative Law Judge (“ALJ”) Gregory Wilson. Tr. at 33-70 (Hr'g Tr.). The ALJ issued an unfavorable decision on February 24, 2020, finding Plaintiff was not disabled within the meaning of the Act. Tr. at 12-32. The Appeals Council denied Plaintiff's request for review. Tr. at 1-6.
Plaintiff filed a complaint in this court on December 29, 2020. Tr. at 1194. On December 2, 2021, the Honorable J. Michelle Childs, United States District Judge, issued an order accepting the undersigned's report and recommendation, reversing the decision of the Commissioner, and remanding the case for further administrative action pursuant to sentence four of 42 U.S.C. § 405(g). Tr. at 1263-67. The Appeals Council issued an order remanding the case to the ALJ on May 27, 2022. Tr. at 1269-71. Plaintiff participated in a second hearing on October 20, 2022. Tr. at 1130-65 (Hr'g Tr.). The ALJ issued a second unfavorable decision on December 8, 2022. Tr. at 1086-1119. On June 27, 2023, the Appeals Council issued an order declining to assume jurisdiction and allowing the ALJ's decision to serve as the Commissioner's final decision for the purpose of judicial review. Tr. at 1078-85. Plaintiff filed a complaint in this court on July 7, 2023. [ECF No. 1].
B. Plaintiff's Background and Medical History
1. Background
Plaintiff was 57 years old at the time of the most recent hearing. Tr. at 1136. She completed two years of college. Id. Her past relevant work (“PRW”) was as a child monitor, a general hardware salesperson, an outpatient receptionist, and a food service supervisor. Tr. at 1156-57. She alleges she has been unable to work since May 27, 2017. Tr. at 222, 225.
2. Medical History
On February 16, 2017, Plaintiff presented to David Brancati, D.O. (“Dr. Brancati”), for right shoulder pain and stiffness and thumb pain that had begun one month prior. Tr. at 920. She reported being unable to raise or move her right arm without significant pain. Id. Dr. Brancati noted tenderness-to-palpation (“TTP”), limited range of motion (“ROM”) with abduction, inability to cross midline, no obvious deformity, and crepitus, consistent with tendinitis in the right shoulder. Tr. at 922. He observed TTP of the right thumb and limited ROM secondary to pain, consistent with tendinitis in the right thumb. Id. X-rays showed mild degenerative changes. Id. Dr. Brancati assessed acute right shoulder pain and right rotator cuff tendinitis. Tr. at 923. He prescribed Mobic. Id.
Plaintiff presented to the ER at Mary Black Hospital on February 18, 2017, after she slipped and fell. Tr. at 411. She complained of pain in her left arm and hip. Id. X-rays of Plaintiff's left shoulder showed mild-to-moderate arthrosis at the acromioclavicular (“AC”) and glenohumeral joints, degenerative changes at the greater tubercle, and some curvilinear calcification in the adjacent soft tissues, but no acute osseous findings. Tr. at 448-49. X-rays of her left hip showed mild osteoarthritis, but no acute fracture or dislocation. Tr. at 450-51. Don L. Abernethy, M.D., noted normal findings on exam, aside from left hip pain. Tr. at 414-15. He discharged Plaintiff with prescriptions for Cyclobenzaprine 5 mg and ibuprofen 800 mg. Tr. at 416.
Plaintiff complained of right shoulder pain and hand numbness on March 16, 2017. Tr. at 916. She described pain that had progressed over several months and weakness and pain that limited her ability to use her right arm. Id. She indicated Mobic had provided no relief. Id. Christian Montagano, D.O. (“Dr. Montagano”), assessed right rotator cuff injury, administered a right-sided intraarticular shoulder injection, prescribed Celebrex 200 mg, ordered magnetic resonance imaging (“MRI”), and referred Plaintiff to physical therapy. Tr. at 919.
On March 22, 2017, an MRI of Plaintiff's right shoulder showed a rim rent tear at the supraspinatus insertion; a partial-thickness bursal surface tear to the infraspinatus tendon; subacromial/subdeltoid bursitis; AC arthropathy with spurring and edema; and generalized atrophy of the rotator cuff. Tr. at 913.
On April 10, 2017, Dr. Brancati noted diffuse tenderness of Plaintiff's right shoulder to the superior spine of the right scapula, clavicle, and humerus; no pain with passive ROM; pain with active ROM; limited active ROM of the right shoulder; positive empty can test; negative Hawkins test, Neer's impingement test, and Sulcus sign; and no erythema, ecchymosis, or edema. Tr. at 910. He assessed sore throat, rotator cuff tear, and bursitis of the right shoulder and referred Plaintiff to physical therapy and orthopedic surgery. Tr. at 911.
Plaintiff presented to orthopedic surgeon Michael P. Hoenig (“Dr. Hoenig”) on April 18, 2017. Tr. at 953. She complained of right shoulder pain with overhead reaching and rated her pain as a six on a 10-point scale. Id. Dr. Hoenig noted full ROM, no tenderness, and stability on examination of the left shoulder. Tr. at 956. He observed active forward elevation to 130 degrees, passive forward elevation to 150 degrees, external rotation to 60 degrees, decreased strength in all facets, diffuse TTP, and pain with impingement tests on examination of the right shoulder. Id. He assessed partial rotator cuff tear of the right shoulder and incomplete rotator cuff tear or rupture, not specified as traumatic. Id. He ordered a right shoulder injection, prescribed a Medrol Dosepak and Mobic, restricted Plaintiff to no lifting greater than five pounds, and instructed her to continue physical therapy. Id.
Tony DiNicola, M.D. (“Dr. DiNicola”), administered a right glenohumeral intraarticular injection on April 27, 2017. Tr. at 951.
Plaintiff presented to Lopa S. Bhansaly, D.O. (“Dr. Bhansaly”), for right shoulder pain and medication refills on May 3, 2017. Tr. at 511. She complained of difficulty sleeping. Id. Dr. Bhansaly recorded normal findings on exam. Tr. at 513. She increased Methimazole to 10 mg three times a day, refilled Plaintiff's other medications, prescribed Prozac 10 mg for menopausal symptoms and Zanaflex 4 mg for pain, and referred her for a sleep study. Tr. at 514.
Plaintiff presented to Deepak Malhan, M.D. (“Dr. Malhan”), on May 11, 2017. Tr. at 925. She endorsed pain in her bilateral shoulders and left hip due to an injury she sustained at work. Id. On examination of the right shoulder, Dr. Malhan noted tenderness of the supraspinatus, infraspinatus, and subacromial bursa and positive Neer's test. Tr. at 928. He noted antalgic gait and tenderness of the anterior superior iliac spine, ischial tuberosity, adductor muscles, and biceps femoris muscle of the left hip. Id. He prescribed Tramadol 50 mg and referred Plaintiff to an orthopedist. Tr. at 928. Dr. Malhan released Plaintiff with restrictions. See Tr. at 929.
Plaintiff presented to pain management specialist Blake Leche, M.D. (“Dr. Leche”), at Pain Management Associates (“PMA”) on May 12, 2017, Dr. Leche administered bilateral sacroiliac (“SI”) joint injections. Tr. at 509-10. He refilled Zanaflex 4 mg and Oxycodone HCl 10 mg. Tr. at 509.
Plaintiff followed up with Dr. Hoenig for right shoulder pain and complained of right thumb pain on May 16, 2017. Tr. at 622. She rated her pain as a three and indicated the injection had provided some relief. Id. She described right thumb pain that increased with activity and caused her to drop items. Id. Dr. Hoenig observed decreased forward elevation and external rotation of the right shoulder and mild discomfort with impingement test. Tr. at 624. He noted palpable hypertrophy of the right first carpometacarpal (“CMC”) joint and pain with squeeze test and loading. Id. He assessed osteoarthritis of the CMC joint of the right thumb and partial rotator cuff tear of the right shoulder, administered an injection to the right thumb, instructed Plaintiff to continue home exercises for her right shoulder, and indicated she could work with restrictions of no lifting greater than five pounds. Tr. at 625.
Plaintiff presented to physician assistant Mandi Leche (“PA Leche”) at PMA on June 12, 2017. Tr. at 592. She described pain in her low back that radiated through her right lower extremity and into her foot and rated it as a six. Id. She noted her most recent injection had provided over 70% relief, but her pain had started to return. Id. PA Leche felt that Plaintiff would likely benefit from a spinal cord stimulator (“SCS”) trial. Id. She observed TTP over the right paraspinous muscles and decreased sensation to light touch over the L5 dermatome. Tr. at 593-94. She assessed lumbar radiculopathy, chronic pain syndrome, and high blood pressure and scheduled Plaintiff for a second transforaminal epidural steroid injection (“ESI”) on the right side. Tr. at 592, 594-95. She prescribed Gabapentin 300 mg, Oxycodone HCl 10 mg, Norco 5325 mg, and Tramadol HCl 50 mg. Tr. at 595.
On June 13, 2017, Plaintiff complained of bilateral shoulder pain. Tr. at 627. Dr. Hoenig noted reduced ROM of the bilateral shoulders, pain with rotator cuff testing, pain with impingement maneuvers, and diffuse tenderness over the deltoid. Tr. at 629. He assessed bilateral shoulder pain. Id. He noted Plaintiff needed to return to work at full duty on June 24, 2017, as she could not pay her bills without doing so. Id. He authorized her to return to work without restrictions. Tr. at 631.
Dr. Leche administered a transforaminal ESI at Plaintiff's right L5 level on June 28, 2017. Tr. at 590-91.
Plaintiff followed up with endocrinologist Elaine Marie Sunderlin, M.D. (“Dr. Sunderlin”), on July 6, 2017. Tr. at 599. She reported fatigue and palpitations. Tr. at 600. Dr. Sunderlin noted Plaintiff was late for the visit and had not been compliant with follow up visits and medication refills. Id. She indicated Plaintiff's blood pressure was elevated at 140/80 mmHg and she had a mild fine tremor of outstretched hands. Tr. at 602. She assessed hyperthyroidism due to Graves' disease and cautioned Plaintiff that if she could not get her thyroid levels under control, she would need to consider radioactive iodine ablation (“RAIA”). Id.
Plaintiff reported 60% relief from the ESI during a follow up visit on July 13, 2017. Tr. at 586. She endorsed muscle aches, shoulder pain, muscle weakness, hip pain, back pain, swelling in the arms and legs, knee pain, depression, and restless sleep. Id. She requested medication to help her sleep. Id. PA Leche recorded normal findings on exam. Tr. at 587-88. She assessed lumbar radiculopathy, prescribed Ambien 10 mg, and continued Plaintiff's other medications. Tr. at 588.
Plaintiff returned to Dr. Hoenig on July 18, 2017. Tr. at 632. She rated bilateral shoulder pain as a six. Id. Dr. Hoenig observed reduced ROM of the bilateral shoulders, pain with resisted forward elevation and external rotation, pain with impingement maneuvers, and tenderness about the deltoid and anterior aspect of the shoulders. Tr. at 634. He ordered bilateral shoulder injections, instructed Plaintiff to follow up in four to six weeks, and authorized her to remain out of work until August 18, 2017. Tr. at 634, 636.
Plaintiff complained of low back pain that radiated to her right hip and leg on August 3, 2017. Tr. at 582. She described her pain as burning, stabbing, aching, and tingling. Id. She reported 50% relief from the right transforaminal ESI she received on June 28. Id. PA Leche noted TTP and decreased ROM of the lumbar and cervical spine. Tr. at 583-84. She continued Plaintiff's medications. Tr. at 585.
Dr. DiNicola administered glenohumeral intraarticular injections to Plaintiff's bilateral shoulders on August 8, 2017. Tr. at 637.
Plaintiff followed up with physician assistant Leslie A. Rumbaut (“PA Rumbaut”) for medication refills on August 16, 2017. Tr. at 496. She reported her anxiety was controlled with Buspar and Prozac. Id. She indicated she was taking Ambien for insomnia, but sought other medication due to associated headaches. Id. PA Rumbaut recorded normal exam findings, aside from obesity and elevated blood pressure. Tr. at 497-98. She replaced Ambien with Trazodone for insomnia, referred Plaintiff for a mammogram and a colonoscopy, ordered lab studies, and refilled Amlodipine and Hydrochlorothiazide for hypertension and Buspar and Prozac for anxiety. Tr. at 499.
On August 29, 2017, Plaintiff complained of bilateral shoulder discomfort and limited ROM that was worse on the right than the left. Tr. at 638. She rated her pain as a seven, but indicated the injections had provided some relief. Id. Dr. Hoenig observed Plaintiff to be anxious and depressed, to have decreased ROM of the bilateral shoulders, to have pain with resisted maneuvers and impingement testing, and to be diffusely tender about the bilateral deltoids. Tr. at 640. He noted Plaintiff's financial situation required she “return to some sort of work” and indicated he would “allow her to work full duty as tolerated.” Tr. at 641. He prescribed Ultram 50 mg and authorized Plaintiff to return to work without restrictions. Tr. at 641, 642.
Plaintiff returned to PA Rumbaut to review lab studies on August 30, 2017. Tr. at 492. PA Rumbaut noted Plaintiff's hemoglobin A1C was 6.2% during her prior visit. Id. She indicated Plaintiff had been taking oral steroids intermittently over the last several months and had received treatment for thyroidtoxicosis. Id. Plaintiff admitted to moderate-to-poor diet and recent weight gain. Id. PA Rumbaut recorded normal findings. Tr. at 493-94. She assessed pre-diabetes and reaction to Prednisone. Tr. at 494.
On September 7, 2017, Plaintiff described low back pain that radiated into her bilateral buttocks and rated it as an eight. Tr. at 578. She complained her pain was interfering with sleep and activities of daily living (“ADLs”) and was worsened by standing, performing household chores, and sitting for extended periods. Id. Dr. Leche noted 4/5 strength in the bilateral extensor hallucis longus muscles and decreased sensation along the distal L5 dermatome. Tr. at 580.
Plaintiff followed up with Dr. Sunderlin on September 19, 2017. Tr. at 603. She was taking 30 mg of Methimazole once a day and reported feeling “good.” Id. She had gained 14 pounds since the prior visit and continued to endorse fatigue and insomnia. Tr. at 603-04. Dr. Sunderlin recorded normal findings. Tr. at 606. She assessed hyperthyroidism consistent with Graves' disease, ordered thyroid function studies, and indicated she would adjust Plaintiff's medication, if necessary, based on the results. Id.
Dr. Leche administered bilateral transforaminal ESIs at Plaintiff's L5 level on September 25, 2017. Tr. at 576-77.
Plaintiff reported engaging in home exercises and stretching with Theraband on October 3, 2017. Tr. at 644. She rated her pain as a six. Id. She stated she was no longer working. Id. Dr. Hoenig observed reduced ROM of the bilateral shoulders and discomfort with resisted maneuvers and impingement test. Tr. at 646. He stated Plaintiff had improved since the prior visit and was making progress with ROM, pain, and ADLs. Id.
Plaintiff reported 60% relief from the transforaminal ESI during a follow up visit on October 5, 2017. Tr. at 572. She described pain that radiated to her bilateral lower extremities, but indicated it had improved. Id. PA Leche authorized a two-month refill for Plaintiff's medications. Id.
Plaintiff presented for medication refills on November 30, 2017. Tr. at 482. She indicated she was compliant with her medication and denied complaints. Id. Nurse practitioner Amy Garner (“NP Garner”) recorded normal findings, aside from sinus tenderness. Tr. at 483-84. Plaintiff reported increased stress, but expected her stress level to decrease over the coming weeks. Tr. at 484. NP Garner refilled Prozac and Buspar for major depressive disorder (“MDD”) and anxiety, and administered a Dexamethasone intramuscular injection for acute sinusitis. Id.
On December 7, 2017, Plaintiff described pain in her low back and right hip she rated as a seven. Tr. at 570. She indicated her pain was limiting her activity. Id. She noted she had received minimal or transient relief from ESIs and minimal improvement from physical therapy and medications, which had included narcotics and anti-inflammatory drugs. Id. She observed TTP and decreased ROM of the lumbar and cervical spine. Tr. at 570-71. She refilled Plaintiff's medications and ordered a psychological evaluation for possible SCS trial. Tr. at 571.
On December 12, 2017, Plaintiff complained of bilateral shoulder pain that radiated to her fingers. Tr. at 648. She indicated her shoulder pain increased with activity and use, particularly with extending her arms overhead or away from her body. Id. She rated her pain as a six. Id. Dr. Hoenig observed limited forward elevation and external rotation of the bilateral shoulders, diffuse TTP of the deltoids, pain with rotator cuff testing, tenderness around the elbow and forearm, and greater weakness on the left than the right. Tr. at 650. He assessed bilateral shoulder pain and ordered an MRI of the left shoulder. Id.
Plaintiff rated her low back pain as a seven in severity on January 4, 2018. Tr. at 568. PA Leche noted TTP and decreased ROM in the lumbar and cervical spine. Id. She started Movantik 25 mg and refilled Tizanidine HCl 4 mg, Oxycodone HCl 10 mg, and Gabapentin 300 mg. Tr. at 569.
On February 6, 2018, Plaintiff reported her back pain was worsened by lifting, standing for long periods, and bending. Tr. at 565. She described her pain as radiating to her right leg and interfering with sleep and work. Id. She rated it as a six. Id. PA Leche recorded TTP and decreased ROM of the lumbar and cervical spine. Tr. at 566. She refilled Oxycodone 10 mg, Gabapentin 300 mg, Movantik 25 mg, and Tizanidine 4 mg. Id.
On February 11, 2018, Plaintiff presented to licensed professional counselor Sandra C. Lawson (“Counselor Lawson”) for a psychosocial assessment to determine if she was a candidate for implantation of an SCS. Tr. at 718-24. She indicated she had been out of work since May 2017 due to a back injury. Tr. at 718. She endorsed a history of anxiety and depression with mild symptoms. Tr. at 719-20. She noted a history of bereavement following her husband's death in 2010 and stress related to pain and financial difficulties. Tr. at 720. Counselor Lawson described Plaintiff as alert, well-groomed, maintaining good eye contact, demonstrating normal speech, and having normal mood/affect, cooperative attitude, intact thought process, normal thought content, no hallucinations or delusions, and normal impulse control. Tr. at 722-23. Plaintiff reported she coped with stressful situations by praying, crying, talking to her oldest daughter, and hibernating in her bedroom. Tr. at 723-24. Counselor Lawson indicated Plaintiff's reported symptoms were consistent with mild depression. Tr. at 724. She stated a screening tool for posttraumatic stress disorder was negative. Id. She considered Plaintiff to be at low risk for opioid abuse and a good candidate for SCS implantation. Id.
Plaintiff sought medication refills and denied complaints, aside from worsening near vision, on February 21, 2018. Tr. at 478. Physician assistant Elijah G. Wells recorded normal findings on exam. Tr. at 479-80. He refilled Plaintiff's medications and referred her to an ophthalmologist. Tr. at 481.
On March 6, 2018, an MRI of Plaintiff's left shoulder revealed a complete tear of the supraspinatus tendon, a partial thickness tear versus strain of the infraspinatus tendon, and AC joint hypertrophy with inferior spurring causing impingement. Tr. at 446-47.
On March 13, 2018, Plaintiff rated her back pain as a seven and described aching, numbness, stabbing, and throbbing pain that was worsened by bending forward and backward, twisting, sleeping, and shopping. Tr. at 563. She indicated her pain interfered with work and sleep and radiated to her right leg. Id. She complained her pain medication caused constipation and Zanaflex made her feel too sleepy. Id. PA Leche observed TTP over the lumbar spine, pain with ROM, severely limited lumbar flexion and extension, and decreased cervical ROM. Tr. at 563-64. She prescribed Baclofen and continued Gabapentin, Movantik, and Oxycodone. Tr. at 563, 564. She noted Plaintiff was not a surgical candidate because she had minimal chance of improvement. Tr. at 563. She indicated she was waiting for Plaintiff's insurance provider to authorize an SCS. Id.
Optometrist J. Steve McPhail assessed mild nuclear sclerotic cataracts (“NSC”) and retinal degeneration of the bilateral eyes on March 22, 2018. Tr. at 539. He noted early cataracts were not significantly affecting Plaintiff's vision or ability to perform desired activities and instructed her to follow up in one to two years. Tr. at 539-40.
On April 11, 2018, Plaintiff reported her medication was working well and denied side effects. Tr. at 562. PA Leche refilled Oxycodone 10 mg. Id.
Plaintiff followed up with Dr. Sunderlin on May 1, 2018. Tr. at 606. She reported she had stopped Methimazole due to fatigue, swelling, and confusion as to the appropriate dose. Tr. at 607. She endorsed palpitations and insomnia. Id. Dr. Sunderlin recorded normal findings on physical exam. Tr. at 610. She instructed Plaintiff to restart Methimazole at 15 mg daily. Id.
Plaintiff returned to Dr. McPhail for blurred vision on May 7, 2018. Tr. at 536. He assessed NSC, myopia, retinal degeneration, and presbyopia in the bilateral eyes and prescribed new glasses. Tr. at 537.
Plaintiff presented to PA Leche to discuss the insurance company's denial of an SCS on May 16, 2018. Tr. at 560. Plaintiff had TTP over the cervical and lumbar spine, limited flexion and extension of the lumbar spine due to pain, 4/5 bilateral lower extremity strength, and decreased distal sensation along the L5 dermatome. Id. PA Leche assessed lumbar radiculopathy, continued Plaintiff's medications, and scheduled her for right L4-5 and L5-S1 transforaminal ESIs. Tr. at 561.
On May 21, 2018, Plaintiff reported bilateral shoulder pain with significant left shoulder pain that caused difficulty sleeping. Tr. at 654. She described fairly-constant pain in the deltoid and back of the left shoulder. Id. She rated her pain as a seven, despite taking four Oxycodone per day. Id. Dr. Hoenig noted the workers' compensation carrier had authorized coverage for the left shoulder, but denied coverage for the right shoulder. Id. He observed decreased internal rotation, weak cuff strength in all facets, pain with impingement, and diffuse tenderness in the deltoid and clavicle on examination of the right shoulder. Tr. at 656. He noted decreased ROM, weakness in all facets, and diffuse tenderness over the clavicle, AC joint, and deltoid on the left. Id. He assessed left shoulder rotator cuff tear and planned to proceed with arthroscopic surgery with decompression, distal clavicle resection, and rotator cuff repair. Tr. at 657. Dr. Hoenig restricted Plaintiff to “light duty” work with no use of the left upper extremity. Tr. at 653.
On May 31, 2018, Plaintiff followed up with Edward J. Mea, D.O. (“Dr. Mea”), for hyperthyroidism. Tr. at 546. She was concerned as to her thyroid, noting her dose of Methimazole had been decreased to one-and-a-half pills daily. Id. She complained that Trazodone did not help her insomnia, but noted Zolpidem had previously helped. Id. Dr. Mea observed trace edema in the bilateral ankles. Tr. at 547. He ordered thyroid lab studies, prescribed Zolpidem 10 mg for insomnia, and continued Plaintiff's other medications. Id.
Plaintiff rated her pain as a seven on June 19, 2018. Tr. at 558. She reported her medication was helpful, but not as effective as it had previously been. Tr. at 558-59. Physician assistant Carlee Bright (“PA Bright”) authorized refills of Oxycodone HCl 10 mg and Baclofen 10 mg, prescribed Celebrex 200 mg, and ordered x-rays of the lumbar spine and nerve conduction velocity/electromyography (“NCV/EMG”) testing of the lower extremities. Tr.at 557.
On June 28, 2018, Dr. Hoenig administered a cortisone injection to the CMC of Plaintiff's right thumb and performed left shoulder arthroscopy with extensive debridement and biceps tenotomy, subacromial decompression, distal clavicle resection, and rotator cuff repair. Tr. at 658-59.
Plaintiff presented for postoperative follow up on July 2, 2018. Tr. at 660. She rated her pain as a seven and indicated she was using a transcutaneous electrical nerve stimulation (“TENS”) unit and ice. Id. Physical therapist Laura Robson (“PT Robson”) removed Plaintiff's dressing, placed band-aids over her wound sites, and assessed her passive ROM. Tr. at 661. Plaintiff returned for physical therapy sessions on July 9, 11, 16, 23, 27, and 30, August 1, 8, 13, 20, 22, and 27, September 24 and 26, October 1, 4, and 8, and November 16, 28, and 30, 2018. Tr. at 663-64, 670-75, 680-92, 698-704, 975-80, 986-93, 999-1000.
Plaintiff returned to Dr. Hoenig on July 10, 2018. Tr. at 666. She complained of increased right shoulder pain and rated her pain as a six. Id. Dr. Hoenig noted no problems at the incision site. Tr. at 668. He instructed Plaintiff to continue physical therapy for the left shoulder, ordered an injection to the subacromial space in her right shoulder, and authorized her to remain out of work. Tr. at 665, 668.
Plaintiff complained of pain in her low back and bilateral hips and shoulders on July 17, 2018. Tr. at 555. She rated her pain as a 10 without medication and a four with medication. Id. Pain management specialist Richmond P. Allan (“Dr. Allan”), noted some inconsistency as to Plaintiff's urine drug screen. Id. He observed Plaintiff's left arm was in a sling. Tr. at 556. He noted lumbosacral tenderness, knee crepitus, antalgic gait, and trace pitting edema of the lower extremities. Id. He refilled Oxycodone HCl 10 mg. Tr. at 555.
On July 18, 2018, Plaintiff presented to nurse practitioner Kim Anne Pickett (“NP Pickett”) for follow-up as to Graves' disease. Tr. at 610. She reported compliance with Methimazole 15 mg daily. Tr. at 611. NP Pickett continued Methimazole 15 mg daily. Tr. at 613.
On August 3, 2018, Plaintiff complained of a three-week history of gasping for breath upon waking. Tr. at 786. She reported grogginess throughout the day and taking one to two naps for 30 minutes to an hour at a time. Id. She denied anxiety symptoms. Tr. at 788. Dr. Mea observed Plaintiff's left arm to be in a sling and noted trace edema of her bilateral lower extremities. Tr. at 787. He referred Plaintiff to a sleep physician, continued her medications, and ordered Cologuard for colorectal screening, thyroid lab studies, and a lipid panel. Tr. at 788.
On August 14, 2018, Plaintiff reported the injection had provided 80% relief to her right shoulder, but was beginning to wear off. Tr. at 694. She rated her pain as a five. Id. Dr. Hoenig instructed Plaintiff to continue physical therapy and home exercises and to remain out of work pending a recheck in six weeks. Tr. at 696.
David S. Rogers, M.D., performed EMG/NCV testing of Plaintiff's lower extremities on August 15, 2018. Tr. at 727-35. The tests produced normal results. Tr. at 727.
Plaintiff complained of low back pain on August 21, 2018. Tr. at 715. PA Bright assessed low back pain, radiculopathy of the lumbar region, shoulder pain, drug-induced constipation, and chronic pain disorder. Id. She noted Plaintiff had tenderness and limited ROM of the lumbar spine and ordered x-rays. Id. She prescribed Celebrex for shoulder pain and Relistor for constipation and refilled Oxycodone. Tr. at 715-16.
On August 21, 2018, x-rays of the lumber spine showed moderate disc space narrowing at L5-S1, bilateral facet arthrosis at the lower two levels with 10 mm anterolisthesis of L4, and osteoarthritis of the SI joints. Tr. at 736.
Plaintiff rated her pain as an eight on September 20, 2018. Tr. at 712. PA Bright reviewed EMG/NCV testing of the bilateral lower extremities and indicated the findings were normal. Id. She recorded normal findings on physical exam. Tr. at 713. She prescribed a Medrol Dosepak for lumbar radiculopathy and refilled Plaintiff's other medications. Tr. at 712-13.
On September 25, 2018, Plaintiff reported great progress with physical therapy and endorsed only minor left shoulder pain. Tr. at 994. She indicated her right shoulder was “doing somewhat well,” with good and bad days. Id. She noted she was down to two Oxycodone per day and was trying to wean off them. Id. Dr. Hoenig recorded right shoulder ROM to 160 and 30 degrees and left shoulder ROM to 150 and 30 degrees. Tr. at 996. He acknowledged pain with impingement maneuvers and rotator cuff testing on the right. Id. He restricted Plaintiff to light duty work with no overhead lifting, no lifting greater than one pound from floor to waist, and no lifting greater than one pound from waist to shoulder. Tr. at 997, 998.
State agency psychological consultant Silvie Ward, Ph.D. (“Dr. Ward”), reviewed the record and considered Listing 12.06 for anxiety and obsessive-compulsive disorders on September 27, 2018. Tr. at 76-77, 89-90. She concluded Plaintiff's mental impairment was non-severe, after assessing mild limitations in concentrating, persisting, or maintaining pace and adapting or managing oneself and no limitations in interacting with others and understanding, remembering, or applying information. Id. On May 16, 2019, a second state agency psychological consultant, Derek O'Brien, M.D. (“Dr. O'Brien”), affirmed Dr. Ward's findings. Compare Tr. at 76-77 and 89-90, with Tr. at 110-11 and 128-30.
Plaintiff returned for pain management follow up on October 18, 2018. Tr. at 710. She complained of low back and right hip and leg pain. Id. Dr. Allan refilled Oxycodone, Baclofen, Celebrex, and Gabapentin. Id.
On November 12, 2018, Plaintiff reported making slow progress with physical therapy and noted a dull ache with intermittent increases in left shoulder pain. Tr. at 981. She said her right shoulder pain was tolerable and worse on some days. Id. She indicated she continued to take two Oxycodone per day. Id. Dr. Hoenig observed active forward elevation of the left shoulder to 150 degrees with external rotation to 40 degrees and internal rotation to the back pocket. Tr. at 983. He indicated Plaintiff's strength was improving, but she had a little bit of discomfort on extremes of motion and with resisted maneuvers. Id. He recorded right shoulder ROM to 160 degrees of forward elevation, 30 degrees of external rotation, and internal rotation to the side. Id. He again noted mild discomfort with impingement maneuvers and resisted testing. Id. He prescribed a Medrol Dosepak to address Plaintiff's stiffness, instructed her to continue physical therapy, and restricted her to no lifting greater than five pounds from waist to shoulder and no overhead lifting. Tr. at 984.
Plaintiff followed up with Dr. Allan for pain management on November 15, 2018. Tr. at 967. She rated her pain as a seven and described it as sharp, aching, numb, stabbing, and throbbing. Id. She noted it was decreased by rest and exacerbated by bending, squatting, and performing household chores. Id. She indicated her pain radiated to her right leg and interfered with her abilities to sleep and engage in ADLs. Id. Dr. Allen assessed low back pain and refilled Oxycodone, Baclofen, Celebrex, and Gabapentin. Id.
Plaintiff complained of depression and insomnia on November 29, 2018. Tr. at 802. She reported she was experiencing increased difficulty dealing with the anniversary of her husband's death, desired to be alone, and had difficulty getting out of the house. Tr. at 803. She reported having been on Prozac for years, as it was prescribed following her husband's death. Id. She indicated she was out of Buspar for anxiety, but her anxiety was not as concerning as her depression. Id. She indicated she was taking Oxycodone 10 mg two to three times a day, but desired to stop pain management treatment and discontinue opiate pain medication. Id. Katherine Mitchum Spinks, M.D. (“Dr. Spinks”), recorded normal findings on exam, aside from depressed mood. Tr. at 810. She assessed chronic right-sided low back pain with rightsided sciatica, anxiety, insomnia, hypertension, allergic rhinitis, MDD, and hyperthyroidism. Tr. at 811. She referred Plaintiff to a new pain management specialist, ordered lab studies, added Wellbutrin for MDD, and continued other medications for hypertension, insomnia, and depression. Tr. at 812.
On December 3, 2018, Plaintiff presented to pulmonologist Armin Meyer, M.D. (“Dr. Meyer”), for evaluation of snoring. Tr. at 1018. Dr. Meyer noted Plaintiff likely had sleep apnea and assessed snoring, fatigue, hypertension, anxiety, MDD, insomnia, and obesity. Tr. at 1017. He observed that Plaintiff had significant insomnia with anxiety and depression contributing. Id. He discussed driving precautions, provided nutrition counseling, and ordered a sleep study and trial of continuous positive airway pressure (“CPAP”). Id.
On December 11, 2018, Plaintiff reported occasional left shoulder soreness and good progress with her right shoulder causing no real pain, but occasional cramping in her arms and tension in her right hand. Tr. at 971. She rated her pain as a five. Id. Dr. Hoenig noted examination of both shoulders showed near full ROM, good strength, no crepitus, no pain with impingement maneuvers, and no TTP. Tr. at 973. He assessed right shoulder pain with partial cuff tear and status post-left shoulder scope and rotator cuff repair. Id. He indicated Plaintiff was at maximum medical improvement for both shoulders with an eight percent impairment rating on the left and a six percent impairment rating on the right. Tr. at 974. He imposed a permanent restriction for no overhead lifting. Tr. at 970, 974.
Physical therapist Steve Ahrens (“PT Ahrens”) discharged Plaintiff from physical therapy on December 19, 2018. Tr. at 968-69. He recorded left shoulder active ROM to 124 degrees for flexion and left shoulder passive ROM to 160 degrees for flexion, 116 degrees for abduction, 76 degrees for internal rotation, and 70 degrees for external rotation. Tr. at 968. He noted Plaintiff's left shoulder strength was 4-/5 for flexion, 3+/5 for abduction, 4/5 for internal rotation, and 4/5 for external rotation. Id. PT Ahrens stated Plaintiff had been “consistently poorly compliant” with in-clinic physical therapy and appeared to be poorly compliant with a home exercise program. Tr. at 969. He noted Plaintiff had missed or cancelled many appointments. Id. He stated Plaintiff continued to report moderate pain with relatively easy activities and was mildly weak due to poor rehab compliance and poor effort. Id. He discharged her due to poor compliance. Id.
Plaintiff presented to pain management specialist Edward Swan Delorey, M.D. (“Dr. Delorey”), for consultation on December 27, 2018. Tr. at 822. She complained that her pain caused significant stress and impairment to her life. Tr. at 824. Plaintiff endorsed depressed, helpless, and hopeless mood. Tr. at 825. She described her pain as throbbing, aching, tender, aggravated by lifting and walking, and interfering with sleep, ADLs, and work. Id. She endorsed numbness, weakness, tingling, and muscle spasms. Id. She rated her pain as a five and indicated it had been as high as an eight during the prior month. Id. She admitted physical therapy had provided moderate benefits, but said she had stopped attending due to financial limitations. Tr. at 826. She said ESIs had provided 50% improvement for three to four weeks. Id.
Dr. Delorey observed TTP over the lumbar facets and paraspinal muscles and right greater than left SI joints, positive bilateral facet loading, mildly positive FABER test on the right, mildly positive straight-leg raising (“SLR”) test on the right, and normal ROM, strength, sensation, and reflexes in the lower extremities. Tr. at 830. He assessed lumbar spondylosis, chronic right-sided low back pain with right-sided sciatica, lumbar post-laminectomy syndrome, lumbar degenerative disc disease (“DDD”), sacroiliitis, lumbar paraspinal muscle spasms, and chronic pain syndrome. Tr. at 822. He noted Plaintiff's history, physical exam, and imaging suggested her pain was multifactorial with contribution of facetogenic pain, SI joint dysfunction, and post-laminectomy pain syndrome. Id. He recommended Plaintiff increase physical activity to prevent deconditioning and worsening of the pain cycle, undergo psychological counseling to address the comorbid psychological effects of pain, and use pain medications and interventional procedures judicially to decrease pain and allow her to participate in physical activities. Tr. at 822-23. He refilled Celebrex and Gabapentin, switched Baclofen to Robaxin 500 mg for muscle spasms, and decreased Oxycodone to 5 mg, four times daily as needed in anticipation of transitioning Plaintiff to Butrans patches at her next visit. Tr. at 823. He ordered bilateral L3-4, L4-5, and L5-S1 facet joint injections. Id.
On January 1, 2019, state agency medical consultant James Taylor, D.O. (“Dr. Taylor”), reviewed the record and assessed Plaintiff's physical residual functional capacity (“RFC”) as follows: occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds; stand and/or walk for a total of about six hours in an eight-hour workday; sit for a total of about six hours in an eight-hour workday; occasionally stoop, kneel, crouch, crawl, and climb ladders/ropes/scaffolds; frequently balance and climb ramps/stairs; occasionally reach overhead with the left upper extremity; and avoid concentrated exposure to hazards. Tr. at 78-81, 91-94. A second state agency medical consultant, Hurley W. Knott, M.D. (“Dr. Knott”), assessed the same physical RFC on May 20, 2019. Compare 78-81 and 91-94, with Tr. at 11316 and 131-34.
On January 7, 2019, Plaintiff complained she had developed bilateral tinnitus after starting Wellbutrin. Tr. at 838. She indicated the medication was effective, but she could not tolerate the tinnitus. Id. Nurse practitioner Erica Leigh Gardner (“NP Gardner”) discontinued Wellbutrin and prescribed Buspar. Tr. at 844.
On January 25, 2019, Plaintiff underwent polysomnography that showed moderate obstructive sleep apnea (“OSA”). Tr. at 742-44.
Plaintiff followed up with Dr. Delorey on January 28, 2019. Tr. at 848. She rated her pain as a three and indicated the lumbar facet injections she received on January 20 had provided greater than 50% relief of her low back pain. Id. Dr. Delorey prescribed 30 Oxycodone 5 mg tablets for Plaintiff to use as they waited for approval of Butrans patches. Id. He referred Plaintiff to aquatic therapy and continued Robaxin and Celebrex. Id.
On February 7, 2019, Plaintiff reported doing well on Buspar and requested to increase her dose from two to three times a day. Tr. at 863. Dr. Spinks continued Plaintiff's medication for hypertension, decreased Ambien to 5 mg, and increased Buspar to three times a day. Tr. at 865-66.
Plaintiff rated her pain as a four and indicated her medication was providing 60-70% relief on February 25, 2019. Tr. at 870. She endorsed episodic pain flares in her low back and buttocks, but indicated they would resolve within a few days. Id. She had lost five pounds and looked forward to starting aquatic therapy. Id. Dr. Delorey noted mild TTP over Plaintiff's bilateral lumbar facets, paraspinal muscles, and right greater than left SI joints, positive bilateral facet loading in the lumbar spine, mildly positive FABER test on the right, mildly positive SLR test on the right, and 5/5 strength, normal ROM, intact sensation, and normal and symmetric reflexes in the bilateral lower extremities. Tr. at 877. He prescribed 10 Oxycodone 5 mg tablets to be used sparingly over the next four weeks, and refilled Celebrex, Gabapentin, Robaxin, and Butrans patches. Tr. at 878.
On March 26, 2019, Plaintiff endorsed slightly-decreased pain, rated her current pain as a four, and reported 75% relief from her pain medication regimen. Tr. at 883. She indicated she had been unable to start aquatic therapy because of a transportation problem. Id. Dr. Delorey observed 5/5 strength, normal and symmetric ROM, intact sensation to light touch, and normal and symmetric reflexes in Plaintiff's bilateral lower extremities. Tr. at 890-91. He noted mild TTP over Plaintiff's bilateral lumbar facets, paraspinal muscles, and right greater than left SI joints, mildly-positive bilateral facet loading in the lumbar spine, mildly-positive FABER test on the right, and mildly-positive SLR test on the right for pain radiating below the knee. Tr. at 891.
On April 29, 2019, Plaintiff reported 60% pain relief with medication and rated her pain as a six. Tr. at 1050. She noted recent skin irritation and rash due to Butrans patches. Id. Dr. Delorey indicated he would replace Butrans patches with Belbuca oral films. Id. He restarted Plaintiff on Gabapentin, as her pain worsened after discontinuing it. Tr. at 1051. He indicated Plaintiff had not taken Oxycodone over several days and he did not intend to continue it. Id. He refilled Celebrex and Robaxin. Tr. at 1059.
Plaintiff returned to Dr. Meyer on May 1, 2019. Tr. at 1003. She reported sleeping and feeling better with use of CPAP, but waking later during the night because her pressure was too high. Tr. at 1008. Dr. Meyer diagnosed OSA with use of CPAP, primary insomnia, and body mass index (“BMI”) between 40.0 and 44.9. Tr. at 1007. He recommended the pressure on Plaintiff's CPAP be lowered. Id.
On May 28, 2019, Plaintiff reported her pain had increased slightly over the prior month. Tr. at 1036. She rated her pain as a four and endorsed 40-50% pain relief with medications. Id. She indicated Belbuca and resumption of Gabapentin had been beneficial. Id. She reported some sedation, but did not feel that it was significant enough to change her treatment. Id. She requested repeat lumbar facet injections. Id. Dr. Delorey refilled Celebrex, Gabapentin, Robaxin, and Belbuca and approved repeat bilateral facet joint injections at L3-4, L4-5, and L5-S1. Tr. at 1045-46.
On June 27, 2019, Plaintiff indicated her chronic pain was about the same and rated it as a six. Tr. at 1023. She endorsed 50% pain relief from medications. Id. She reported increased stressors related to her sister's illness and her brother's death. Id. Dr. Delorey's medical assistant scheduled Plaintiff for bilateral lumbar facet joint injections on July 12. Tr. at 1024. Dr. Delorey refilled Celebrex, Gabapentin, Robaxin, and Belbuca. Tr. at 1033.
Plaintiff presented to licensed independent social work James Francis Nagi (“SW Nagi”) on September 3, 2019. Tr. at 1001. She desired to treat with a therapist, but was concerned about the cost. Id. She endorsed a history of anxiety and depression and reported she had often isolated and spent most of her time in bed since she had stopped working. Id. SW Nagi assessed anxiety and current moderate episode of MDD. Id.
Plaintiff complained of depression, hyperthyroidism, anxiety, and insomnia on December 20, 2019. Tr. at 1063. She indicated she was struggling with depression and had not left her house in three weeks. Tr. at 1068. She noted multiple members of her family had passed away over the prior year and she feared she was going to be evicted from her home. Id. She said she was rarely using Belbuca and had not followed up for pain management treatment in several months because of transportation problems. Id. She endorsed poor sleep and appetite. Id. Dr. Spinks assessed current moderate episode of MDD, insomnia due to other mental disorder, hypertension, anxiety, hyperthyroidism, and acute non-recurrent maxillary sinusitis. Tr. at 1069-70. She ordered lab studies, increased Wellbutrin to 300 mg, and continued Prozac 40 mg. Tr. at 1070-71.
On March 18, 2020, Plaintiff reported feeling better, but not getting out as much and not socializing. Tr. at 1533. She indicated her home was in preforeclosure and she was trying to find a job to stop the foreclosure and to avoid sitting at home all the time. Id. She noted her pain had improved. Id. A depression screen was positive. Id. Dr. Spinks noted depressed mood, but otherwise normal findings on physical exam. Tr. at 1534. She stated Plaintiff was no longer able to travel to Greenville to see her pain management physician and refilled Celebrex, Robaxin, and Gabapentin. Tr. at 1535. She indicated Plaintiff's depression was uncontrolled and instructed her to decrease Prozac to 20 mg for seven days before stopping it and starting Lexapro 10 mg for one week and 20 mg thereafter. Id.
Plaintiff reported worsened pain after being off her medication on July 1, 2020. Tr. at 1484. She endorsed increased emotional stress due to financial and transportation problems and the recent deaths of her brother and sister. Id. She indicated increased neuropathic pain in her legs. Id. Dr. Delorey increased Gabapentin and restarted Belbuca 300 mg every 12 hours. Id.
On August 27, 2020, Plaintiff rated her pain as a five and indicated no change in her lower back pain and some improvement in her right thigh pain with the increased dose of Gabapentin. Tr. at 1470. She reported she had been unable to attend the appointment for injections because of transportation problems and requested the procedure be rescheduled. Id. She endorsed bilateral knee pain with greater pain in her right knee and giveway in her left knee. Id. Dr. Delorey noted TTP over Plaintiff's bilateral lumbar facets, paraspinal muscles, and right-greater-than-left SI joints, positive bilateral facet loading in the lumbar spine, mildly-positive FABER test on the right, and mildly-positive SLR on the right. Tr. at 1477. He ordered x-rays of Plaintiff's bilateral knees, refilled her medications, and rescheduled the repeat bilateral facet joint injections at L3-4, L4-5, and L5-S1. Tr. at 1478.
On September 29, 2020, Plaintiff reported continued pain and giving way of her left leg due to a fall three weeks prior. Tr. at 1524. She indicated her mood had improved, as she was watching her granddaughter two or three days per week. Tr. at 1525. She stated she was using her CPAP and sleeping for four hours on most nights. Id. A depression screen was negative. Id. Dr. Spinks noted swelling and tenderness in Plaintiff's left lower leg and thickening and discoloration of her toenails. Tr. at 1526. She ordered x-rays of Plaintiff's left tibia and fibula, which were normal. Tr. at 1528. She diagnosed toenail fungus and suspected Plaintiff's left leg pain was due to a hematoma that would spontaneously resolve. Id.
Plaintiff complained of bilateral knee pain, insomnia, and depression and requested a referral to pain management on April 9, 2021. Tr. at 1516. She described knee pain that had been exacerbated by exercise at the gym and was worse on the left. Id. She also reported back and right shoulder pain. Id. She stated she had difficulty traveling to Greenville for pain management because she had only one car in her household. Id. She indicated she had been working four days a week and was glad to get out of the house. Id. A depression screening was negative. Id. Dr. Spinks noted bilateral knee tenderness and crepitus on physical exam. Tr. at 1518. She referred Plaintiff to pain management, prescribed Meloxicam 15 mg, increased Hydroxyzine to 50 mg at bedtime, continued Wellbutrin XL 300 mg and Lexapro 20 mg, and advised her to stop Celebrex. Id.
Also on April 9, 2021, Plaintiff presented to Joseph Paul Ross, III, M.D. (“Dr. Ross”), at Medical Group of the Carolinas Weight Loss Services. Tr. at 1586. She reported having attended a bariatric surgery presentation and being interested in pursuing gastric bypass surgery. Id. She endorsed fatigue, sleep apnea, shortness of breath, leg swelling, borderline diabetes mellitus, heartburn, sciatica, numbness in her feet and hands, anxiety, and depression. Tr. at 1589-90. Dr. Ross observed musculoskeletal swelling and bilateral lower extremity edema. Tr. at 1590-91. He initiated medical nutrition therapy. Tr. at 1592.
On April 12, 2021, Plaintiff weighed 269.8 pounds, which represented weight loss of 7.6 pounds. Id. On May 11, 2021, Plaintiff had lost 5.2 pounds since the prior visit and a total of 12.8 pounds. Tr. at 1577. Plaintiff had lost 0.2 pounds from her last visit and a total of 13 pounds on June 10, 2021. Tr. at 1573. On July 29, 2021, nurse practitioner Mark B. Alexander, M.D. (“NP Alexander”) noted Plaintiff had lost 5.4 pounds since her last visit and a total of 18.4 pounds. Tr. at 1568. A record dated August 12, 2021, reflects two pounds lost since the prior visit and total weight loss of 20.4 pounds. Tr. at 1564.
On August 13, 2021, Plaintiff reported she had been spending weekends with her boyfriend, who lived in a different town. Tr. at 1507. She said she continued to struggle with sleep, but had notice a little improvement since she had become more active. Id. She reported she fell the prior day. Id. A depression screening was negative. Id. Dr. Spinks recorded normal findings on exam. Tr. at 1508-09.
On August 18, 2021, Plaintiff presented to nurse practitioner Jennifer Dawn Psaltis (“NP Psaltis”) after having fall down the stairs an hour prior. Tr. at 1536. NP Psaltis noted no peripheral edema, normal gait, decreased ROM of the right ankle, swelling and tenderness over the lateral malleolus, and normal attention span and concentration. Tr. at 1537. She assessed a closed avulsion fracture of the medial malleolus of the right tibia, prescribed a walking boot, and referred Plaintiff to an orthopedic surgeon. Id.
On September 22, 2021, Plaintiff reported having sustained a second fall two weeks prior. Tr. at 1593. John Albert Lucas, IV, M.D. (“Dr. Lucas”), noted x-rays showed significant widening of the medial malleolus and new appearance of a posterior malleolus fracture and tibia-fibula x-rays indicated a Maisonneuve fracture. Id. He administered a cortisone injection to address Plaintiff's left knee pain and referred her to Alexander Henry MacDonell, IV, M.D. (“Dr. MacDonell”), for surgical intervention. Id.
Plaintiff presented to nurse practitioner Elizabeth Deborah Roberts (“NP Roberts”) for surgical clearance on September 28, 2021. Tr. at 1698. A depression screening was negative. Id. NP Roberts recorded normal findings on physical exam. Tr. at 1700. She noted an electrocardiogram (“EKG”) in the office showed sinus rhythm with left ventricular hypertrophy and recommended a repeat EKG prior to surgery. Tr. at 1701.
Plaintiff underwent surgical open reduction of right syndesmosis and deltoid ligament repair on October 5, 2021. Tr. at 1550-51.
On October 26, 2021, Plaintiff indicated her pain was well-controlled. Tr. at 1642. Dr. MacDonell noted swelling about the medial lateral right ankle, intact sutures, well-healing incisions, decreased ankle ROM and strength, and antalgic gait. Tr. at 1645. He instructed Plaintiff to begin progressive weightbearing to the right leg and referred her to physical therapy. Tr. at 1646.
Plaintiff had gained 10 pounds during a medical weight loss visit on October 28, 2021. Tr. at 1554.
Plaintiff presented to physical therapist Mark Clark (“PT Clark”) for a physical therapy functional assessment on November 8, 2021. Tr. at 1623. PT Clark noted limited strength, balance, and gait. Tr. at 1624. He recommended physical therapy twice a week for 12 weeks. Tr. at 1625-26.
On November 16, 2021, Plaintiff reported decreased right ankle pain and functional improvements with physical therapy. Tr. at 1637. Dr. MacDonell noted swelling about the medial lateral right ankle, improved right ankle strength and ROM, and slightly antalgic gait. Tr. at 1640.
Plaintiff presented to Dr. Spinks for routine follow up on December 10, 2021. Tr. at 1694. A depression screening was negative. Id. Dr. Spinks noted normal findings. Tr. at 1695-96.
On December 22, 2021, Plaintiff reported improved right ankle pain and some improvement with physical therapy, although she continued to experience some swelling. Tr. at 1632. Dr. MacDonell observed Plaintiff to ambulate with slightly antalgic gait in the boot, have swelling about the medial lateral right ankle, demonstrate well-healing incisions, have normal right ankle strength and ROM, show intact sensation and no gross instability, and have mild TTP along the medial deltoid. Tr. at 1635. He instructed Plaintiff to wean from the boot to a lace-up brace and to continue with physical therapy. Tr. at 1636.
Plaintiff presented to Dr. Ross for a preoperative evaluation on February 23, 2022. Tr. at 1663. She weighed 265.8 pounds, which represented a four-pound weight loss from her initial weight of 269.8 pounds. Id. Dr. Ross discussed the risks and alternatives, and Plaintiff agreed to proceed with surgery. Tr. at 1667.
Plaintiff complained of a one-week history of lower back and left knee pain on March 2, 2022. Tr. at 1690. Amber Stroupe, D.O. (“Dr. Stroupe”), noted bilateral lumbar paraspinal muscle hypertonicity, crepitus with passive ROM of the bilateral knees, positive McMurray sign to the left medial knee, and otherwise normal findings. Tr. at 1692-93. She assessed acute left knee pain, primary osteoarthritis of the bilateral knees, and lumbar DDD and prescribed Tramadol 50 mg. Tr. at 1693.
On March 11, 2022, Plaintiff reported good mood, improvement with CPAP, and excruciating knee pain. Tr. at 1686. Dr. Spinks recorded normal findings on exam. Tr. at 1687-88. She continued Plaintiff's medications, but changed Wellbutrin from extended release to immediate release. Tr. at 1688-89.
On March 14, 2022, Plaintiff demonstrated a return to her prior level of function with appropriate strength, balance, and activity tolerance for performance of all functional mobility tasks. Tr. at 1599. Physical therapist Rena Parker indicated Plaintiff needed no further physical therapy. Id.
Plaintiff underwent gastric bypass surgery on March 14, 2022. Tr. at 1661.
Plaintiff presented to nurse practitioner Jessica A. Cash (“NP Cash”), for post-surgical follow up on March 23, 2022. Tr. at 1656. She had lost 26.4 pounds since surgery. Id.
During a follow up visit on April 14, 2022, Plaintiff indicated she was doing well and eating and drinking without nausea and vomiting as long as she did not eat or drink too quickly. Tr. at 1652. Nurse practitioner Jessica A. Cash noted Plaintiff had lost 38 pounds since surgery and 11.6 pounds since her last visit. Id.
On April 15, 2022, Plaintiff reported having not taken Hydrochlorothiazide over the prior week, but noted no swelling in her legs since stopping it. Tr. at 1681. She endorsed improved energy and mood since increasing her morning protein intake. Id. A depression screening was negative. Id. Dr. Spinks recorded normal findings. Tr. at 1682.
Plaintiff denied pain and instability and reported her right ankle was doing well on June 2, 2022. Tr. at 1627. She endorsed left knee pain. Id. Dr. MacDonell observed improved swelling about the medial lateral right ankle, well-healing incisions, no gross signs of infection, improved right ankle strength and ROM, intact sensation, no gross instability of the right ankle, no TTP along the medial deltoid, normal gait, and full ROM, normal strength and tone, and no instability of the ipsilateral hip. Tr. at 1630. He indicated no further intervention was needed and Plaintiff had no restrictions. Id.
On June 8, 2022, Plaintiff weighed 206 pounds, which represented weight loss of 58.9 pounds since her gastric bypass surgery. Tr. at 1648. Dr. Ross noted Plaintiff was doing well overall and encouraged her to incorporate cardio and strength training into her exercise routine. Tr. at 1651.
Plaintiff complained of right eye redness and blurred vision on July 27, 2022. Tr. at 1676. Edward Leons Katemba, M.D., assessed hordeolum externum of right upper eyelid and prescribed Prednisone and erythromycin ophthalmic ointment. Tr. at 1677.
Plaintiff presented to nurse practitioner Christopher Todd Henderson (“NP Henderson”) for left eye irritation on August 4, 2022. Tr. at 1674. NP Henderson assessed blepharitis of the left upper eyelid and prescribed erythromycin ophthalmic ointment. Tr. at 1675.
Plaintiff presented to Stephen Michael Kana, M.D. (“Dr. Kana”), for evaluation of bilateral knee pain on October 3, 2022. Tr. at 1707. She endorsed left-greater-than-right knee pain, multiple falls over the prior year, and increased pain with walking, climbing stairs, squatting, and kneeling. Id. Dr. Kana observed the following on examination of the knees: swelling; TTP of the medial joint lines; pain with full flexion and extension; positive McMurray's sign; and positive crepitus through ROM. Tr. at 1710. He assessed primary osteoarthritis of the bilateral knees and advised Plaintiff of various treatment options. Id. Plaintiff opted to proceed with cortisone injections, and Dr. Kana injected Plaintiff's bilateral knees with Marcaine and DepoMedrol. Tr. at 1710-11.
Plaintiff complained of worsening lower back pain and bilateral knee pain on October 5, 2022. Tr. at 1716. She requested repeat bilateral lumbar facet joint injections and to restart Belbuca. Id. Dr. Delorey noted TTP over the bilateral lumbar facets, paraspinal muscles, and right-greater-than-left SI joint, positive bilateral facet loading in the lumbar spine, mildly-positive FABER sign on the right, and mildly-positive SLR on the right. Tr. at 1723. He reviewed x-rays that showed severe narrowing of the medial and lateral compartments and osteophytes on the distal femur, left proximal tibia, and around the patella, consistent with tricompartmental osteoarthritis of the left knee. Tr. at 1713. He stated Plaintiff's pain appeared to be multifactorial with contribution of facetogenic pain, SI joint dysfunction, post-laminectomy pain syndrome, and chronic bilateral knee osteoarthritis. Tr. at 1723. He restarted Belbuca and ordered lumbar facet joint injections. Tr. at 1716.
C. The Administrative Proceedings
1. The Administrative Hearings
a. Plaintiff's Testimony
i. January 23, 2020
Plaintiff testified she lived with her two children, ages 18 and 22. Tr. at 40. She stated she last worked at Mary Black Hospital on May 27, 2017. Tr. at 40-42. She denied having worked or received unemployment benefits since that date. Tr. at 40. She indicated she filed a claim for workers' compensation and received a $28,000 settlement. Tr. at 40-41. She said she received financial support through her husband's military pension and her children's income. Tr. at 41. She stated her children worked and attended college. Id.
Plaintiff confirmed she had been injured on the job when she slipped and fell, injuring her left hip and shoulder. Tr. at 42. She said she immediately visited the ER and subsequently went to occupational health and to her doctor. Id. She testified she had rotator cuff tears in both shoulders, depression, anxiety, back and hip pain, and nerve pain that radiated down both of her legs. Tr. at 42-43. She indicated Graves' disease caused her to often feel tired and have blurred vision, heart palpitations, and swelling in her ankles and feet. Tr. at 43. She stated problems with her shoulders prevented her from lifting, fixing her hair, getting out of the bathtub, and performing household chores. Tr. at 44. She denied being able to sweep or reach overhead to retrieve items. Tr. at 44-45.
Plaintiff admitted she had a valid driver's license without restrictions. Tr. at 43-44. However, she said she did not drive because of vision problems, difficulty holding the steering wheel, and anxiety. Tr. at 45-46. She indicated her right hand and thumb would “tense[] up” if she held them in the same position for too long and nerve pain radiated down her arm and into her hand. Tr. at 46. She confirmed she was right-handed. Id. She said she received injections for arthritis in her right thumb. Id. She denied being able to perform fine motor tasks such as fastening zippers and buttons and doing detailed work with her hands. Id. She indicated she could manipulate larger items. Id. She said she wore slip-on clothing due to these problems. Tr. at 47.
Plaintiff testified her anxiety was increased such that it was hard for her to concentrate. Id. She expressed reluctance to drive because she had delayed ability to react due to her physical problems. Id. She said she could not turn her head and used the car's mirrors to view things to her rear. Id. She denied being able to shop for groceries because she could not bend down or reach overhead to retrieve items and had difficulty pushing a shopping cart. Tr. at 47-48.
Plaintiff estimated she could sit comfortably for about 30 minutes. Tr. at 48. She stated that after sitting for 30 minutes, she would need to get up, go lie down, stretch, and put up her feet. Id. She said she alternated between a recliner and her bed during a typical day. Id. She estimated she could likely stand for about 20 minutes prior to experiencing increased pain in her right hip, legs, and back. Id. She indicated she could walk about 50 feet, the distance to her mailbox. Tr. at 49. She denied being able to lift a gallon of milk with either hand. Id. She said she had stiffness and shakiness in her bilateral hands and could make only a light fist. Id. She denied being able to squat, kneel, crouch, crawl, or climb stairs. Tr. at 49-50. She indicated she did not visit her backyard because she could not ascend the deck stairs to get back into her house. Tr. at 50. She denied being able to climb a ladder or bend down to retrieve items she dropped to the ground. Id.
Plaintiff testified her treatment for chronic back pain included pain management with injections every three to four months. Tr. at 51. She indicated her doctor did not believe she would benefit from surgery, but had recommended implantation of an SCS, which her insurance denied. Id. She said she could do very little twisting. Id. She stated she had severe depression and anxiety and had recently been prescribed a new medication for depression. Id.
Plaintiff testified she often stayed in her bed and watched television. Id. She indicated her pain and other symptoms varied, but she had few good days. Tr. at 52. She described her actions on an average day as getting up, drinking a cup of coffee, watching television, and lounging in the recliner. Id. She said her son usually prepared or microwaved meals or picked up food and shopped for groceries. Id. She stated she had previously enjoyed gardening, but could no longer do the required lifting, carrying, and bending. Tr. at 53. She said she had discontinued physical therapy because she was not making progress and it was too painful. Id.
Plaintiff stated she had last worked as a food service supervisor. Id. She noted the job required she prepare and plate food and deliver it to hospital patients. Tr. at 54. She estimated she had to lift 25 to 50 pounds. Id. She stated she had previously worked as an associate at Lowe's, where she had to lift heavy items like lawnmowers and cases of oil. Id. She said she worked in patient intake at Columbia Orthopaedic and Neurosurgical Associates, where she helped patients with instructions, cleaned, and did laundry, lifting about 25 pounds. Tr. at 55.
Plaintiff indicated she used paper plates because she could not lift plates. Tr. at 56. She said she had previously dropped plates and glasses. Id. She denied having been hospitalized for more than 24 hours due to depression or anxiety. Id. She said she had started seeing Dr. Dill around August 2019 for depression. Tr. at 56-57.
Plaintiff testified she was 5'4” tall and weighed 244 pounds. Tr. at 57. She stated her weight caused increased difficulty walking and bending over. Id. She denied having cooked, done laundry, ironed, mopped, vacuumed, taken out the trash, dusted, performed yard work, hunted, fished, sewed, crocheted, traveled outside the state, or cleaned the bathroom, kitchen, or living room since May 2017. Tr. at 57-59. She admitted she had placed glasses and silverware in the dishwasher and folded clothes over that period. Tr. at 57-58. She said she attended online religious services, used Facebook, emailed, performed research on the internet, and did little texting. Tr. at 59. She admitted she had been to stores and restaurants since May 2017. Tr. at 59-60. She denied belonging to any clubs or groups and visiting movie theaters, parks, beaches, or lakes. Id.
ii. October 20, 2022
Plaintiff testified she lived with her two adult children. Tr. at 1136. She stated she had last worked as a childcare provider for a friend from early 2021 until September 2022. Tr. at 1137. She indicated she had worked eight hours per day, three days per week and had earned $12.00 per hour. Id. She said she had previously worked as a food service supervisor at Mary Black Hospital from 2016 to May 2017. Tr. at 1137-38.
Plaintiff explained her duties in caring for her friend's child had included feeding her and changing her diapers. Tr. at 1139. She said she generally did not have to lift the child because her daughter assisted her with lifting. Id. She noted the child was a year old. Tr. at 1140.
Plaintiff testified she had been unable to work in 2017 and 2018 because of pain in her shoulders, back, hip, and legs. Id. She indicated she continued to experience the same problems. Id. She estimated that during that period, she could sit for 20 to 30 minutes, stand for 20 minutes, and walk for 15 minutes and about 100 feet at a time. Tr. at 1141-42. She stated her present abilities to sit and stand remained the same, but she had reduced ability to walk because of worsened low back and leg pain. Id. She said she continued to use a recliner that she had been using in 2017 and 2018. Tr. at 1142. She indicated she experienced pain, numbness, and tingling in her right arm in 2017 and 2018. Id. She denied being able to lift a gallon of liquid with one hand and perform detailed work with her hands since 2017. Tr. at 1143.
Plaintiff testified her ability to use her arms and hands affected her clothing choices, and she required her daughter's assistance in performing personal hygiene. Tr. at 1143-44. She said she could drive if it was an emergency and she had an appointment, but she preferred that someone else drive. Tr. at 1144. She indicated she experienced shoulder pain, particularly on the right, when she drove. Id. She denied cooking and said she had done barely any cooking in 2017 and 2018. Tr. at 1144-45. She could not recall whether she performed household chores in 2017 and 2018, and denied engaging in hobbies during that period. Tr. at 1145. She stated she spent most of her time watching television, which was on all the time. Tr. at 1146. She denied being able to stoop, crouch, squat, crawl, climb ladders, and climb stairs due to pain in her lower back, legs, hips, and shoulder and said she could not perform these activities in 2017 and 2018. Id. She said her medication caused her to feel sleepy. Tr. at 1146-47.
Plaintiff testified she had surgery after she fell down the stairs and injured her left ankle. Tr. at 1147. She endorsed continued pain, instability, and difficulty walking on uneven surfaces. Id. She stated she had also undergone gastric bypass surgery and had lost 80 pounds. Id. She said she currently weighed 187 pounds. Id. She indicated she continued to suffer from sleep apnea, typically slept three-and-a-half hours during the night, and felt sleepy during the day. Id.
Plaintiff endorsed problems with memory and concentration and noted she sometimes felt confused. Tr. at 1148. She said her daughter placed her medications in a tray that was divided for morning and evening. Id. She indicated a mental health professional had treated her depression. Id.
Plaintiff testified she experienced problems with her bilateral knees, for which she received injections. Tr. at 1149. She said the injections were somewhat helpful. Id. She stated she experienced numbness in her left arm that came and went, but occurred on most days. Id. She endorsed current pain in her legs, knees, and low back. Tr. at 1150.
The ALJ questioned Plaintiff about the help she received from her daughter when she was providing childcare. Tr. at 1150-51. Plaintiff stated she had reported all the income from the childcare job and her daughter had reported none because she needed to provide proof of income to the bankruptcy court to save her home.Tr. at 1151.
Plaintiff reported $16,691.95 in earnings in 2021, $4,215 in earnings in the first quarter of 2022, and $5,144 in earnings in the second quarter of 2022, the last quarter reflected in the record. Tr. at 1371, 1379.
Plaintiff testified her weight had caused problems prior to her surgery and she continued to experience neck and shoulder pain due to being overweight. Id. She stated she had last received treatment for depression in January 2022. Id. She indicated she previously saw a therapist in 2019. Id. She denied having undergone knee or hip surgery and indicated she had undergone back surgery in 1993. Tr. at 1154.
Plaintiff denied attending church and said she texted and emailed and used Facebook very little and the internet occasionally. Tr. at 1154-55.
b. Vocational Expert Testimony
i. January 23, 2020
Vocational Expert (“VE”) Robert E. Brabham, Sr., Ph.D., reviewed the record and testified at the first hearing. Tr. at 60-70. The VE categorized Plaintiff's PRW as a general office clerk, Dictionary of Occupational Titles (“DOT”) No. 209.562-010, requiring light exertion per the DOT and up to medium exertion as performed and a specific vocational preparation (“SVP”) of 3, and a food service supervisor, DOT No. 319.137-010, requiring light exertion per the DOT and up to medium exertion as performed and an SVP of 6. Tr. at 61-62. The ALJ asked the VE if Plaintiff had acquired any transferable skills. Tr. at 62. The VE testified the job of general office clerk would have produced transferable skills related to keeping records, receiving payments, making phone calls, dealing with dates, comparing records, researching accounts, and using office equipment. Id. The ALJ asked if those skills were transferable with very little, if any, vocational adjustment. Id. The VE stated they were “[t]o selected fittings.” Id.
The ALJ described a hypothetical individual of Plaintiff's vocational profile who could lift 20 pounds occasionally and 10 pounds frequently; stand for six hours in an eight-hour workday; walk for six hours in an eight-hour workday; sit for six hours in an eight-hour workday; frequently balance and climb ramps and stairs; occasionally stoop, kneel, crouch, crawl, and climb ladders, ropes, or scaffolds; occasionally reach overhead; and avoid concentrated exposure to hazards. Tr. at 62-63. The VE testified the hypothetical individual could perform Plaintiff's PRW. Tr. at 64. The ALJ asked whether there were other jobs the hypothetical person could perform. Id. The VE identified a light job with an SVP of 3 as a records clerk, DOT No. 206.387-022, with 320,000 positions in the national economy. Tr. at 64-65. The ALJ asked the VE which skills from Plaintiff's PRW would transfer to such a job. Tr. at 65. The VE testified skills such as dealing with records, locating information, comparing records, doing background detail work, using basic office equipment and computers, and screening and reviewing records would transfer. Id. The VE further stated Plaintiff would have transferable skills to telephone answering-type jobs. Id. He identified DOT No. 235.462010, with 80,000 positions in the national economy. Id. The VE confirmed Plaintiff's skills would transfer with little, if any, vocational adjustment in terms of tools, work process, work setting, and industry. Tr. at 65-66.
The ALJ asked the VE if his testimony was consistent with the DOT. Tr. at 66. The VE stated his testimony was consistent, except the DOT did not specifically address overhead reaching and he had based his testimony as to that factor on his 50 years of experience. Id.
For a second hypothetical question, the ALJ described an individual of Plaintiff's vocational profile who was limited to simple, routine, repetitive work on a sustained basis, eight hours a day, five days a week, in two-hour increments, and with normal breaks. Id. He further specified the job would require frequent judgment and occasional decision making. Id. He asked if such an individual could perform Plaintiff's PRW. Id. The VE testified the individual would be unable to perform Plaintiff's PRW, as it was not simple. Tr. at 67. The ALJ asked if there would be other work available for the described individual. Id. The VE identified light jobs as an assembler/fabricator, DOT No. 739.687-078, and a hand packer, DOT No. 789.687-066, with 360,000 and 400,000 positions available in the national economy, respectively. Tr. at 67-68.
The ALJ asked the VE if his testimony was consistent with the DOT. Tr. at 68. The VE clarified his testimony as to overhead reaching was based on his experience, as it was not specifically addressed in the DOT. Id.
For a third hypothetical questions, the ALJ described an individual of Plaintiff's vocational profile who would be limited as described in the second question and would be absent from the workstation on a daily basis, for a duration at her discretion. Id. He asked if the additional restriction would affect the VE's response. Tr. at 69. The VE stated it would prevent the individual from engaging in gainful employment. Id. He explained that such absences were not addressed in the DOT, but his testimony as to their effect was based on his experience. Id.
Plaintiff's attorney asked the VE to consider the individual described in the first and second hypothetical questions and to further assume she would be able to use her hands occasionally. Id. The VE testified the individual would be unable to perform the identified jobs. Tr. at 69-70.
ii. October 20, 2022
VE Maria DeLeon reviewed the record and testified at the second hearing. Tr. at 1155-63. The VE categorized Plaintiff's PRW as a child monitor, DOT No. 301.677-010, requiring medium exertion as described in the DOT and light exertion as performed and an SVP of 3; a general hardware salesperson, DOT No. 279.357-050, requiring light exertion and an SVP of 4; an outpatient receptionist, DOT No. 237.367-038, requiring sedentary exertion and an SVP of 4; and a food service supervisor, DOT No. 319.137-010, requiring light exertion and an SVP of 6. Tr. at 1156-57. She testified Plaintiff acquired transferable skills from her PRW that included use of office equipment, time management, judgment and decision making, service orientation, coordination, math skills, and critical thinking. Tr. at 1157-58. She stated these skills were transferable with very little, if any, vocational adjustment. Tr. at 1158.
The ALJ asked the VE to consider a hypothetical individual of Plaintiff's vocational profile who was capable of lifting 20 pounds occasionally and 10 pounds frequently; could sit for six of eight hours, stand for six of eight hours, and walk for six of eight hours; could frequently reach with the left upper extremity, climb ramps and stairs, and balance; could occasionally climb ladders, ropes, or scaffolds, stoop, kneel, crouch, crawl, and reach overhead; and could have occasional exposure to hazards, including dangerous moving machinery and unprotected heights. Tr. at 1158. He questioned whether the individual would be able to perform Plaintiff's PRW. Id. The VE testified the individual would be able to perform Plaintiff's PRW as an outpatient receptionist as she performed it. Tr. at 1158-59.
For a second hypothetical question, the ALJ asked the VE to consider an individual of Plaintiff's vocational profile who could perform simple and detailed work on a sustained basis, eight hours a day, five days a week in two-hour increments with normal breaks; could frequently exercise judgment and make decisions; and could handle frequent changes in the work setting. Tr. at 1159. The ALJ asked the VE if the individual would be able to perform Plaintiff's PRW. Id. The VE stated the individual would not. Id. The ALJ asked why an individual who could perform detailed work would be unable to perform work as a child monitor. Id. The VE stated an SVP of three indicates more than just simple work. Id. However, after further discussion, the VE stated the individual would be able to perform work as a child monitor and an outpatient receptionist. Tr. at 1159-60. The ALJ asked if the individual would be able to perform other jobs with transferable skills from Plaintiff's PRW. Tr. at 1160. The VE identified light jobs with an SVP of 3 as a kitchen service assembler, DOT No. 319.484-010, and a general clerk, DOT No. 209.562-010, with 213,000 and 300,000 positions in the national economy, respectively. Tr. at 1161. She explained these jobs required use of office equipment, service orientation, and time management skills Plaintiff had acquired in PRW. Id.
The ALJ asked the VE if her testimony as to the jobs of kitchen service assembler and general clerk had been consistent with the DOT. Id. The VE responded in the affirmative. Id. The ALJ asked the VE if there was any conflict between her testimony and the DOT with respect to overhead reaching. Id. The VE stated overhead reaching was not distinguished in the DOT and she had based her testimony as to that factor on her experience and education. Tr. at 1161-62.
For a third question, the ALJ asked the VE to consider that the individual would have daily absences from the workstation for a duration that would be at her discretion and total more than 20% of the workday. Tr. at 1162. The VE testified employers would not tolerate such a limitation. Id.
Plaintiff's counsel asked the VE to consider that the individual would be limited to occasional reaching with the left upper extremity. Tr. at 116263. He asked if that modification would affect her response to the first hypothetical question. Tr. at 1163. The VE testified none of the jobs she previously identified would be available if the individual were limited to occasional reaching with the left upper extremity. Id.
Plaintiff's counsel asked the VE to again consider the first hypothetical question and to assume the individual would be limited to lifting a maximum of five pounds. Id. The VE testified a five-pound lifting restriction would preclude all work in the national economy. Id.
2. The ALJ's Findings
In his December 8, 2022 decision, the ALJ made the following findings of fact and conclusions of law:
1. The claimant meets the insured status requirements of the Social Security Act through September 30, 2019.
2. It was previously found that the claimant is the unmarried widow of the deceased insured worker and has attained the age of 50. The claimant met the non-disability requirement for disabled widow's benefits set forth in section 202(e) of the Social Security Act.
3. The prescribed period ends on July 31, 2024.
4. The claimant engaged in substantial gainful activity during the following periods: January 2021 through September 2022 (20 CFR 404.1520(b) and 404.1571 et seq.).
5. However, there has been a continuous 12-month period(s) during which the claimant did not engage in substantial gainful activity. The remaining findings address the period(s) the claimant did not engage in substantial gainful activity.
6. The claimant has the following severe impairments: obstructive sleep apnea, lumbar degenerative disc disease, right shoulder, left shoulder, lumbar spine, thyroid/Graves' disease, obesity, right ankle, left knee (20 CFR 404.1520(c)).
7. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526).
8. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except frequent pushing/pulling upper extremity; occasional climbing rope/ladder/scaffolds, stooping, kneeling, crouching, and crawling; frequent climbing ramps/stairs and balancing; occasional overhead reaching; and occasional exposure to hazards such as dangerous moving machinery and unprotected heights. She can perform simple and detailed work on a sustained basis eighthours a day, five-days a week in two-hour increments with normal breaks for an eight-hour day with frequent decisionmaking, judgment, and changes in the work setting.
9. The claimant is capable of performing past relevant work as a Child Monitor, DOT # 301.677-010, medium/SVP 3 (light as performed) and Outpatient Receptionist, DOT # 237.367-038, Sedentary/SVP 4. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565).
10. The claimant has not been under a disability, as defined in the Social Security Act, from May 27, 2017, through the date of this decision (20 CFR 404.1520(f)).Tr. at 1091-1110.
II. Discussion
Plaintiff alleges the Commissioner erred for the following reasons:
1) the ALJ did not evaluate her subjective allegations in accordance with 20 C.F.R. § 404.1529(c) and SSR 16-3p;
2) the ALJ failed to properly consider Drs. Malhan's and Hoenig's opinions;
3) the ALJ found she was capable of performing work at a greater exertional level than that supported by the evidence; and
4) the ALJ failed to properly consider her mental RFC.
The Commissioner counters that substantial evidence supports the ALJ's findings and that the ALJ committed no legal error in his decision.
A. Legal Framework
1. The Commissioner's Determination-of-Disability Process
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:
the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for at least 12 consecutive months.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; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents her from doing substantial gainful employment. See 20 C.F.R. § 404.1520. These considerations are sometimes referred to as the “five steps” of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).
The Commissioner's regulations include an extensive list of impairments (“the Listings” or “Listed impairments”) the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. § 404.1525. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, she will be found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that her impairments match several specific criteria or are “at least equal in severity and duration to [those] criteria.” 20 C.F.R. § 404.1526; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's past relevant work to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. § 404.1520(h).
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); 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 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).
2. The Court's Standard of Review
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 his 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).
B. Analysis
Because the ALJ found Plaintiff had engaged in substantial gainful activity from January 2021 through September 2022-the month prior to the most recent hearing-he effectively considered whether she was disabled during the period between her alleged onset date of May 27, 2017, and December 31, 2020. See Tr. at 1092.
The ALJ separately noted Plaintiff reported $10,804 in self-employment income in 2018, although he did not find this to be substantial gainful activity. Tr. at 1100. The record does not indicate the type of self-employment work Plaintiff performed in 2018, the number of hours she performed it each week, or the period of time over which she performed it. During January 23, 2020 hearing, Plaintiff testified she had done no work since she last worked at Mary Black Hospital on May 27, 2017. Tr. at 40-42. Plaintiff's testimony is inconsistent with the self-employment income reflected on the detailed earnings query dated July 16, 2022. See Tr. at 1372-75.
1. Subjective Symptom Evaluation
Plaintiff argues the ALJ failed to evaluate her allegations in accordance with 20 C.F.R. § 404.1529(c) and SSR 16-3p. [ECF No. 14 at 35]. She notes the ALJ found her allegations concerning the intensity, persistence, and limiting effects of her symptoms were not entirely consistent with the medical evidence of record, but ignored the evidence that supported her testimony and cherrypicked the record to support his conclusion. Id. at 42. She further asserts the ALJ failed to address factors in 20 C.F.R. § 404.1529(c) that were relevant to his evaluation of her subjective allegations. Id. at 42-43. She maintains the ALJ referenced reports of improved symptoms, while ignoring evidence of worsened symptoms, limited ability to perform ADLs, descriptions of pain, factors that aggravated her pain, medication-related side effects, and comments as to the effectiveness of various treatment methods. Id. at 43-44. She contends the ALJ failed to provide specific reasons for rejecting her statements regarding pain. Id. at 44-45. She claims the ALJ misrepresented the record in explaining he did not accept her testimony as to the work she performed as a nanny. Id. at 45-46.
The Commissioner argues the ALJ based the RFC assessment on relevant evidence that included Plaintiff's allegations about her functional limitations, her medical improvement with treatment, gaps in treatment, her ADLs, her work activity, and the medical opinions and prior administrative findings. [ECF No. 17 at 16-17, 22]. He notes Plaintiff is not arguing the ALJ should have fully credited her allegations, but that he should have credited them to the extent they supported a maximum RFC for sedentary work. Id. at 20-21. He refutes Plaintiff's claim that the ALJ did not consider her testimony that she did not perform the lifting in her work as a nanny because the ALJ expressly considered it and explained it was inconsistent with the other evidence. Id. at 24-25.
“[A]n ALJ follows a two-step analysis when considering a claimant's subjective statements about impairments and symptoms.” Lewis v. Berryhill, 858 F.3d 858, 865-66 (4th Cir. 2017) (citing 20 C.F.R. § 404.1529(b), (c)). “First, the ALJ looks for objective medical evidence showing a condition that could reasonably produce the alleged symptoms.” Id. at 866 (citing 20 C.F.R. § 404.1529(b)). If the ALJ concludes the claimant's impairment could reasonably produce the symptoms she alleges, he proceeds to the second step, which requires him to “evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's ability to perform basic work activities.” Id. (citing 20 C.F.R. § 404.1529(c)).
If the ALJ proceeds to the second step, he must consider “whether there are any inconsistencies in the evidence and the extent to which there are any conflicts between [the claimant's] statements and the rest of the evidence.” 20 C.F.R. § 404.1529(c)(4). In undertaking this inquiry, the ALJ should consider “statements from the individual, medical sources, and any other sources that might have information about the claimant's symptoms, including agency personnel,” as well as the following factors:
(1) the claimant's ADLs;
(2) the location, duration, frequency, and intensity of the claimant's pain or other symptoms;
(3) any precipitating or aggravating factors;
(4) the type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken to alleviate pain or other symptoms;
(5) treatment, other than medication, the claimant receives or has received for relief of pain or other symptoms;
(6) any measures the claimant uses or has used to relieve pain or other symptoms (e.g., lying flat on his back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and
(7) other factors concerning the claimant's functional limitations and restrictions due to pain or other symptoms.20 C.F.R. § 404.1529(c)(3); SSR 16-3p, 2017 WL 5180304, at *6.
The ALJ must explain which of the claimant's alleged symptoms he considered “consistent or inconsistent with the evidence in [the] record and how [his] evaluation of the individual's symptoms led to [his] conclusions. SSR 16-3p, 2017 WL 5180304, at *8. “The determination or decision must contain specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms.” Id. at *10.
The ALJ must support the RFC assessment with a narrative discussion describing how all the relevant evidence in the case record supports each conclusion and must cite “specific medical facts (e.g., laboratory findings) and non-medical evidence (e.g., daily activities, observations).” SSR 96-8p, 1996 WL 374184, at *7 (1996). He must explain how material inconsistencies or ambiguities in the record were considered and resolved. Id. He must “build an accurate and logical bridge” between the evidence and his conclusion as to the intensity, persistence, and limiting effects of the claimant's symptoms. Monroe, 826 F.3d at 189.
Because the ALJ found Plaintiff's impairments “could reasonably be expected to cause the alleged symptoms,” he was required to proceed to the second step and “evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit[ed her] ability to perform basic work activities.” 20 C.F.R. § 404.1529(b), (c). At the second step, the ALJ considered “whether there [were] any inconsistencies in the evidence and the extent to which there [were] any conflicts between [the claimant's] statements and the rest of the evidence.” 20 C.F.R. § 404.1529(c)(4). He concluded Plaintiff's “statements concerning the intensity, persistence, and limiting effects of these symptoms [were] not entirely consistent with the medical evidence and other evidence in the record.” Tr. at 1097.
A review of the ALJ's decision shows that he considered the relevant factors in § 404.1529(c)(3) and SSR 16-3p in reaching the conclusion that Plaintiff's allegations were not entirely consistent with the rest of the evidence. It also demonstrates that the ALJ addressed Plaintiff's allegations as to specific functional limitations and explained his reasons for imposing less restrictive functional limitations than she alleged.
The ALJ found Plaintiff's shoulder pain, arthritis, and history of rotator cuff repair did not limit her as she alleged. Tr. at 1098. He discussed the objective findings, Plaintiff's reports to her medical providers, the diagnostic imaging, the surgical history, her ADLs, and other treatment. Id. He wrote:
Orthopedic discharge records dated December 11, 2018 note that claimant has reached maximum medical improvement and the only permanent restriction assessed is ‘no overhead lifting,'
consistent with claimant's report of only “occasional soreness” in her left shoulder and no real pain in her right shoulder, and physical exam findings of both shoulders showing near full range of motion, strength is good, no crepitus, no pain with impingement maneuvers and no tenderness to palpation (Ex 22F/4-6). Of note, the record is void of any further medical follow- up or complaint of shoulder problems. Notably, pain management records dated December 2018 when initially seen to October 2022 are void of any complaint of shoulder pain (Exs 25F/3 and 39F/3). Presumably, if claimant was limited by pain and numbness of her upper extremities to the degree alleged, these complaints would be voiced to her pain management physician. Further, I note that physical therapy records indicate that the claimant was not compliant with attending physical therapy missing many appointments and she gave poor effort at physical therapy (Exhibit 22F). Despite her failure to attend physical therapy and poor effort treatment records note the claimant was experiencing occasional soreness, that she was making good progress and that the claimant was please [sic] (Exhibit 22F). While the claimant testified that she has left arm numbness, is unable to button or zipper and has daily numbness in the morning records are to the contrary. By way of illustration treatment records indicate that the claimant goes to the gym, has ridden a bike for 5 miles, does weightlifting, does cardio, works out four days a week and that the claimant reported that she feels good about that (Exhibit 28F). Treatment records noted that the claimant overall return to prior level of functioning with appropriate strength, balance, and activity tolerance for the performance of all functional mobility tasks and no further physical therapy was necessary (Exhibit 33F). The claimant was also reported to be independent with activities of daily living, homemaking, ambulation and independent of activity of daily living assistance (Exhibit 33F). These activities, working out, performing weightlifting, and reports that she was independent in activities of daily living are inconsistent with the degree of limitations reported by the claimant. The claimant was also reported to be watching her granddaughter two or three days a week which again indicates ability to perform functions with her upper extremities that is inconsistent with the degree of limitation reported at the hearing (Exhibit 28F). Finally, while the record indicates severe impairments to the shoulders necessitating surgical intervention
the interventions achieve their intended purpose of ameliorating the severity of the claimant's function of the shoulders. Examinations reveal normal range of motion of the musculoskeletal system, no neurologic deficits, no weakness, normal muscle tone and no numbness (Exhibits 38F, 32F and 31F). Let there be no doubt the claimant has sustained significant and severe impairments to her shoulders. This necessitated conservative treatment, medications and physical therapy, as well as invasive procedures to repair her shoulders. Treatment of the shoulders has been successful as evidenced by the claimant returning to work and earning SGA wages. Based on the totality of the evidence I am persuaded the limitations set forth above with respect to the shoulders is supported by the evidence of record.Tr. at 1098-99.
The ALJ further found Plaintiff's allegations as to limitations imposed by lumbar DDD and degenerative joint disease of the hips were not supported by the evidence. Tr. at 1099. He noted Plaintiff's history of remote partial discectomy and right laminectomy, imaging reports, her indications to her medical providers, her providers' findings, and her reports of exercise activities. Tr. at 1099-1100. He cited Plaintiff's reports of improvement following facet injections and with medications. Id. He wrote:
Ms. C[] testified that in a typical day she goes from the recliner to the bed, that she spends the day in bed watching TV, that she is unable to stoop, crouch, and climb because of back pain, can only sit 30 minutes, stand 20 minutes, walk 15 minutes and lift 5 pounds (Testimony January 23, 2020 hearing and October 20, 2022 hearing). The claimant's work activity is inconsistent with this testimony. Work activity since 2017 to the present time suggests significant functional abilities inconsistent with the claimant's testimony. In 2017 the claimant earned a total of $13,654 most of which was earned at QHG of Spartanburg
(Exhibit 15D). In 2018, the claimant earned $10,804 in self-employment income (Exhibit 15D). The claimant collected unemployment benefits from the fourth quarter of 2020 through the third quarter of 2021. In September 2020 the claimant reported that she was watching her granddaughter two or three days a week (Exhibit 28F22). Her income in 2021 was $16691 (Exhibit 14D). Earnings for the first quarter of 2022 was $4215.00 and in the second quarter $5144.00 (Exhibit 18D). As noted above the work activity has been caring for children which the vocational expert testified was a child monitor generally performed at the medium exertional level but as described by the claimant was performed at the light level (Testimony). The ability to perform work at the light level requires exertional functions inconsistent with the claimant's testimony likewise, the claimant's testimony requires being out of bed during the workday and postural functions inconsistent with what was reported by the claimant. Treatment records particularly examinations reveal findings inconsistent with the extreme limitations reported by the claimant. The claimant reported that medications improved her quality of life and allows her to be more functional and that the medications do not cause side effects (Exhibits 27F and 25F). Treatment records also indicate that the claimant was in no acute distress, had normal range of motion of the lower extremities, had 40 to 50% pain relief with medications and frequently was reported to have no lumbar pain as well as normal range of motion (Exhibit 38F, 37F, 35F, 31F and 18F). Other examinations revealed the claimant was not fatigued, had no weakness, was well appearing and repeatedly been noted to be in no acute distress (Exhibits 39F, 38F, 37F, 35F, 31F, 28F, 27F, 26F, 25F, 24F, 19F and 18F). Similarly, activities of daily living like going to the gym, riding a bike for 5 miles, weightlifting, doing cardio exercise and caring for her grandchildren require functional abilities, exertional and postural inconsistent with the claimant's testimony (Exhibit 28F). Again, the claimant has had surgical intervention for the lumbar spine, pain management and treatment by her primary care physician as well as orthopedic specialists as noted hereinabove. I do not suggest she is without pain the record clearly indicates that she experiences pain but not to the extent testified to at the hearings (Exhibits 35F and 31F). Based on the totality of the evidence I have imposed significant functional
limitations because of the severity of the claimant's lumbar spine and hips.Tr. at 1100-01.
The ALJ found Plaintiff's right ankle pain and history of right ankle fracture did not limit her to the degree she alleged. Tr. at 1101. He discussed Plaintiff's diagnoses, the surgical repair, post-operative and physical therapy records, her providers' observations, and her reports to her providers. Id. He stated he had considered Plaintiff's ADLs and work activity in assessing the RFC and noted “at the first hearing the claimant did not testify to any problems with respect to her ankle and at the October 20, 2022 hearing the claimant reported that her doctors had discharged her with respect to the right ankle.” Id.
The ALJ found Plaintiff's allegations as to left knee pain were “unsupported by the record.” Id. He discussed imaging reports, Plaintiff's providers' observations, physical exam findings, and conservative treatment. Tr. at 1101-02. He wrote: “In limiting the claimant with respect to her knee I find that the claimant's activities particularly going to the gym and ability to ride the stationary bike for 5 miles; which illustrates functional abilities consistent with the RFC. Riding a bike for 5 miles requires an extensive expenditure of time flexing and extending the knees.” Tr. at 1102. He found the combined effect of obesity and knee problems were less limiting than they had been when she weighed more. Id.
The ALJ noted inconsistency between Plaintiff's allegations and the evidence as to her thyroid. Id. He stated the record showed the condition to be controlled with appropriate medical compliance, but noted:
Endocrinology records dated July 2017 reflect that claimant is seen in consultation after ‘no-showing' for three scheduled appointments. Contrary to her report of taking prescribed Methimazole as prescribed, which she acknowledges completely alleviates her symptoms, a medication reconciliation reveals that she had not filled medications in six-months (Ex 8F/3). When seen in follow-up in September 2017 it is noted that FT4 and FT3 improved quickly with medication therapy, consistent with claimant's report of overall feeling ‘good' (Ex 8F/6). While labs dated April 26, 2022, note that TSH has been persistently depressed, despite normal free T4, claimant reported improved energy since increasing her protein intake in the morning and she has returned to work since undergoing bariatric gastric bypass surgery on March 14, 2022 (Exs 37F/1 and 4 and 35F).Tr. at 1102-03. He wrote:
Furthermore, the claimant's allegations are undermined by the somewhat normal level of daily activity and interaction demonstrate by the record. In particular, the claimant admitted activities of daily living including performing personal care items unassisted (albeit with some reaching related difficulties), performing light household tasks, shopping for household essentials, managing funds, caring for her granddaughter, working 8-hours a day, several days a week as a nanny for an infant child and pursuing hobbies such as watching TV, going to the gym, riding an exercise bike, walking daily for exercise, and socializing with a male friend on the weekends (Exs 4E, Hearing Testimony, 28F/13 and 4 and 31F/34)). Some of the physical and mental abilities required in order to perform these activities are the same as those necessary for obtaining and maintaining
employment. I find the claimant's ability to participate in a wide-range of activities is inconsistent with the claimant's allegations of debilitating functional limitations.
Specifically, claimant's testimony that she experiences chronic fatigue and is tired a lot and has ongoing chronic pain in her shoulders with numbness in her left arm and she cannot lift more than 5-pounds and chronic low back pain and she is unable to sit for more than 20-30 minutes and stand and walk for more than 15-20 minutes and walking is limited to 100 feet is inconsistent with references in the record to claimant working as a nanny for 32-hours a week (Ex 33F/24), driving out of town to visit a male friend on the weekends (Ex 28F/4), riding an exercise bike for 5-miles (Ex 28F/13), walking 20-minutes daily, 5-days a week (Ex 31F/34), and traveling out of town for pain management treatment (Ex 39F).
Finally, a review of the claimant's work history shows that the claimant has worked since the alleged onset date of disability. As previously detailed, she has reported wages in 2021 and 2022 which are commensurate with substantial gainful activity.Tr. at 1103-04.
“An ALJ has an obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding.” Lewis, 858 F.3d at 869. Plaintiff claims the ALJ ignored multiple references to her pain during office visits, but he did not. See Tr. at 1101 (citing 31F, 35F), 1102 (noting Plaintiff's report of increased musculoskeletal low back pain and left knee pain on March 2, 2022, and gradual worsening of left knee pain on October 3, 2022). She cites a significant portion of her testimony from the first hearing and appears to argue the ALJ did not address every limitation she alleged. See ECF No. 14 at 37-42. The excerpts above show that the ALJ addressed many of the limitations Plaintiff alleged in her testimony. See Tr. at 10981104. However, “there is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision.” Reid v. Commissioner of Social Sec., 769 F.3d 861, 865 (quoting Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (per curiam); accord Russell v. Chater, No. 94-2371, 1995 WL 417576, at *3 (4th Cir. July 7, 1995) (per curiam) (explaining the court had not “establish[ed] an inflexible rule requiring an exhaustive point-by-point discussion in all cases”)).
Contrary to Plaintiff's allegations, the ALJ did not rely on only one record and cited multiple valid reasons for declining to credit her testimony that her daughter performed the lifting duties as she worked as a nanny. In addressing Plaintiff's work activity, the ALJ wrote the following:
By way of illustration records indicate the claimant has been providing childcare not only for a family member but outside the family for almost 2 years. On September 29, 2020 the claimant reported to Dr. Spinks that she is watching a granddaughter two or three days a week (Exhibit 28F22). Ms. C[] reported to Family Medicine of Bowling Springs on April 9, 2021 that she was working four days a week and glad to get out of the house (Exhibit 28F13). When examined on October 3, 2022 the claimant reported to Dr. Kana that her occupation was caregiver (Exhibit 38F3). The claimant, again, when examined on April 15, 2022 reported that she had returned to work (Exhibit 37F3). On March 2, 2022 treatment records indicate the claimant was able to function at home and work/school (Exhibit 37F13). Based on these reports, from treating physicians, in conjunction with the
earnings attributable to the claimant the record persuades me the claimant has engaged in substantial gainful activity.Tr. at 1092. He further explained:
While the claimant admitted in testimony to work activity described as caring for an infant child from January 2021 until she quit in September 2022, I do not accept her testimony that she performed the work with assistance from her daughter who performed all of the lifting responsibilities. Foremost, as acknowledged in her testimony, claimant's daughter was not paid for these purported work services. Further, the claimant described to medical providers on several occasions returning back to work or working as a nanny and in none of these instances does claimant note that she is working with the assistance of her daughter (Ex 33F/34). This work history, when viewed in light of other evidence of record, raises a question as to whether the claimant's current unemployment is actually due to her medical impairments.Tr. at 1104.
Plaintiff argues in a footnote that the ALJ erred in finding she both worked as a nanny and watched her granddaughter, as she has no grandchildren and the child referred to in the medical record as her granddaughter is actually the child of family friend and the same child for whom she served as the nanny. [ECF No. 18 at 5 n.3]. However, Plaintiff made no effort to clarify this issue in her testimony or as part of the administrative record. As the ALJ lacked this information, it was not unreasonable for him to rely on the information cited in Plaintiff's medical records and assume she provided care to two different children.
In light of the foregoing, the undersigned recommends the court find the ALJ cited substantial evidence and built an accurate and logical bridge between the evidence and his conclusion that Plaintiff's allegations were not entirely consistent with the record.
2. Medical Opinions
Following a visit on May 11, 2017, Dr. Malhan released Plaintiff with restrictions of no lifting, pushing, or pulling over five pounds and a desk job only due to bilateral shoulder and left hip pain. Tr. at 929.
Dr. Hoenig provided multiple impressions as to Plaintiff's restrictions over the course of treatment. On April 18 and May 16, 2017, he stated Plaintiff should do no lifting greater than five pounds. Tr. at 625, 956. On June 13, 2017, he authorized Plaintiff to return to work with no restrictions. Tr. at 631. On July 18, 2017, he authorized Plaintiff to remain out of work until August 29, 2017. Tr. at 636. When Plaintiff returned on August 29, 2017, Dr. Hoenig indicated she could return to regular duty. Tr. at 642. On May 21, 2018, he restricted Plaintiff to light duty with no use of the left upper extremity. Tr. at 653. Dr. Hoenig again authorized Plaintiff to remain out of work on July 10 and August 14, 2018. Tr. at 665, 696. When Plaintiff returned on September 25, 2018, Dr. Hoenig authorized her to perform light duty with no overhead lifting, no lifting greater than one pound from floor to waist, and no lifting greater than one pound from waist to shoulder. Tr. at 998. On November 12, 2018, Dr. Hoenig indicated Plaintiff should remain on light duty with no lifting greater than five pounds from waist to shoulder and no overhead lifting. Tr. at 974. On December 11, 2018, Dr. Hoenig released Plaintiff with a permanent restriction for no overhead lifting. Tr. at 974.
Plaintiff argues the ALJ relied on the non-examining state agency consultants' opinions over those of Drs. Malhan and Hoenig. [ECF No. 14 at 44-45]. She maintains the ALJ did not evaluate Drs. Malhan's and Hoenig's opinions in accordance with 20 C.F.R. § 404.1520c. Id. at 46-47. She asserts the restrictions they provided were not temporary. [ECF No. 18 at 1-2].
The Commissioner argues the ALJ explained his reasons for finding persuasive the state agency consultants' opinions that Plaintiff could perform light work with occasional overhead reaching. [ECF No. 17 at 18]. He further maintains the ALJ adequately explained his conclusion that Plaintiff's doctors provided only snapshot opinions of her functioning, prior to Dr. Hoenig issuing a final restriction for no overhead lifting. Id. at 19, 26-27, 30. He claims the ALJ provided valid reasons for not fully crediting the opinion that Plaintiff could perform no overhead reaching. Id. at 19, 29.
“The RFC assessment must always consider and address medical source opinions.” SSR 96-8p, 1996 WL 374184, at *7. “If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the medical opinion was not adopted.” Id. An ALJ is required to evaluate all the medical opinions of record based on: (1) supportability; (2) consistency; (3) relationship with the claimant; (4) specialization; and (5) other factors that tend to support or contradict the medical opinion. 20 C.F.R. § 404.1520c(b), (c). However, he is only required to discuss the supportability and consistency of each medical source's opinion, as these factors are considered most important in assessing its persuasiveness. 20 C.F.R. § 404.1520c(a), (b)(2). Evaluation of the supportability factor requires the ALJ to consider a medical opinion more persuasive based on “the more relevant . . . objective medical evidence and supporting explanations” the medical source provides. 20 C.F.R. § 404.1520c(c)(1). The ALJ's assessment of the consistency factor requires he consider a medical source's opinion more persuasive if it is consistent “with the evidence from other medical sources and nonmedical sources in the claim.” 20 C.F.R. § 404.1520c(c)(2).
Although ALJs have discretion in evaluating the persuasiveness of medical opinions, substantial evidence must support the ALJ's conclusions as to the supportability and consistency factors. If the ALJ materially errs in evaluating these factors, the court may remand the case. See Flattery v. Commissioner of Social Security Administration, C/A No. 9:20-2600-RBH-MHC, 2021 WL 5181567, at *8 (D.S.C. Oct. 21, 2021) (concluding substantial evidence did not support the ALJ's evaluation of the supportability factor where he ignored the claimant's continuing treatment with the medical provider and portions of the provider's treatment notes), R&R adopted by 2021 WL 5180236 (Nov. 8, 2021); Joseph M. v. Kijakazi, C/A No. 1:20-3664-DCC-SVH, 2021 WL 3868122, at *13 (D.S.C. Aug. 19, 2021) (finding the ALJ erred in assessing a medical opinion pursuant to 20 C.F.R. § 404.1520c and § 416.920c because he misconstrued the date the plaintiff last saw the medical provider, neglected the continuing treatment relationship, and erroneously claimed the last treatment visit was prior to the plaintiff's alleged onset date), R&R adopted by 2021 WL 3860638 (Aug. 30, 2021).
The ALJ considered the state agency psychological consultants' opinions to be persuasive, as they were consistent with the longitudinal record and Plaintiff's testimony regarding her work activity, and supported by the rationale and summary they articulated. Tr. at 1104-05. The ALJ found the state agency medical consultants' opinions to be somewhat persuasive, as the physicians articulated rationale that supported the opinion, the medical evidence supported it, and subsequent treatment records failed to reveal any significant changes. Tr. at 1105-06. However, he gave “[l]imited weight” to the opinions “to the extent that there is no limitation in pushing and pulling with the left upper extremity to account for the shoulder impairment.” Tr. at 1105.
The ALJ addressed Dr. Malhan's opinion as follows:
I have found the opinion of Dr. Deepak Malhan, M.D. at Exhibit 19F/5, dated May 11, 2017 that claimant “may return to work, no lifting over 5-pounds, no pushing/pulling over 5-pounds and desk job only” unpersuasive as this appears to be a temporary restriction not permanent. Dr. Malhan examined the claimant on May 11, 2017, in part, for the purposes of the claimant's Workmen's Compensation statement of physical capacity (Exhibit 19F5). In his history he noted that the claimant had very little strength in the right shoulder and restricted to lifting by only 5 pounds by Dr. Hoeng. All other treatment records are for dates prior to the onset date. For example, when examined on December 21, 2015, examination revealed the right shoulder had no misalignment, atrophy, erythema, induration, swelling, warmth, scapular winging or prominence. Soft tissue palpation on the right revealed tenderness. His diagnosis was bilateral shoulder pain and left hip pain. Examinations provided by other physicians in Dr. Malhan's office revealed the claimant was healthy appearing, in no acute distress, joints bones and muscles were examined revealing no contractures misalignment, tenderness, bony abnormalities and normal movement of all extremities. There was RSI joint and sciatic notch tenderness and no neurologic deficits.Tr. at 1106.
In the prior report and recommendation, the court found the ALJ erred in evaluating the persuasiveness of Dr. Malhan's opinion under 20 C.F.R. § 404.1520c, as he did not consider the supportability and consistency of the opinion with the other evidence and “[t]he only reason [he] gave for declining to find the opinion more persuasive [was] that it appeared to be temporary.” Tr. at 1253. Although the ALJ similarly found Dr. Malhan's opinion to be temporary in this decision, he provided a more robust explanation. He did not use the terms “supportability” and “consistency” in evaluating Dr. Malhan's opinion in this decision, but he adequately discussed the factors. See Todd A. v. Kijakazi, C/A No. 3:20-594, 2021 WL 534868, at *4 (E.D. Va. Nov. 16, 2021) (noting an “ALJ need not necessarily use the words ‘supportability' or ‘consistency' as long as the ALJ still performs the requisite analysis of these factors”). In addressing the supportability of Dr. Malhan's opinion, the ALJ noted that except for the May 11, 2017 visit, all of Dr. Malhan's treatment was rendered prior to Plaintiff's alleged disability onset date and had produced minimal abnormal findings. Tr. at 1106. He addressed the consistency factor by indicating the other providers in Dr. Malhan's office had also recorded generally normal observations. Id. Thus, the ALJ declined to find Dr. Malhan's opinion persuasive because it appeared to indicate a temporary restriction based only on findings during the May 11, 2017 visit, and was neither supported by Dr. Malhan's longitudinal treatment record, nor consistent with the records of the other medical providers in his office.
The ALJ wrote the following as to Dr. Hoenig's opinions:
Further, while I have found the various work status forms completed by Dr. Hoenig in the course of treating claimant's left rotator cuff and subsequent left shoulder surgery, noting various degrees of limitation during her recovery from surgery unpersuasive (5/21/18-no use of left arm (Ex 9F/36); 7/10/18- out of work (Ex 9F/44); 9/25/2019-continue on light duty, no lifting more than 1# (Ex 22F/31); 11/12/2018-continue on light duty, waist to shoulder 5# and shoulder to overhead 0# (Ex 22F/18); no lifting greater than 5 pounds (Ex 20F10); 4/18/17 as these appear to be temporary restrictions and are inconsistent with exam findings that reflect she progressed to near full range
of motion of both shoulders, strength is good, no crepitus, no pain with impingement maneuvers and no tenderness to palpation by December 2018 (Ex 22F). These restrictions are also inconsistent with claimant's ability to work as a nanny for almost two years, working 8-hours a day, three or four days a week (three days a week as reported in claimant's testimony and four days a week as noted in exam notes (Ex 33F/24).Tr. at 1106-07. He further noted “many of the opinions were signed by physical therapists not Dr. Hoenig.” Tr. at 1107. He found “Dr. Hoenig's permanent restrictions of no restrictions other than ‘no overhead lifting' somewhat persuasive and considered his opinion in restricting claimant to only occasional overhead reaching (Ex 22F/3).” Tr. at 1107. However, he explained the restriction for no overhead reaching was not supported by Dr. Hoenig's finding that Plaintiff “had near full range of motion of shoulders, good strength, no crepitus, no pain with impingement maneuvers and no tenderness to palpation.” Id. He stated the restriction conflicted with Plaintiff's ADLs and work activity and was inconsistent with findings on recent exams. Tr. at 1107-08.
The ALJ's conclusions as to Dr. Hoenig's opinions are supported by substantial evidence. As noted above, Dr. Hoenig authorized Plaintiff return to work-sometimes without restriction-during several visits between April 2017 and December 2018. The fact that Dr. Hoenig provided different opinions as to Plaintiff's ability to perform work duties over time supports the ALJ's conclusion that all, but the December 2018 restrictions, were temporary.
As with Dr. Malhan's opinion, the ALJ did not use the terms “supportability” and “consistency,” but the explanation set forth above reflects his explicit consideration of the two factors. The ALJ stated Dr. Hoenig's opinions prior to December 2018 were “inconsistent” with his findings on exam, which indicates they lacked supportability. See Tr. at 1106. He considered the opinions inconsistent with Plaintiff's subsequent work history, which indicates they were inconsistent with the other evidence of record. See Tr. at 1107. The ALJ also considered the supportability and consistency factors in finding the permanent restriction Dr. Hoenig provided in December 2018 to be “somewhat persuasive.” Id. He addressed the supportability factor in summarizing Dr. Hoenig's observations over the course of treatment and stating the restriction for no overhead reaching was not fully consistent with his observations of “near full range of motion of the shoulders, good strength, no crepitus, no pain with impingement maneuvers and no tenderness to palpation.” See id. In considering the consistency factor, he stated the restriction was not consistent with Plaintiff's ADLs and subsequent work activity. Tr. at 1107-08.
Given the foregoing explanations, the undersigned recommends the court find the ALJ complied with the requirements of 20 C.F.R. § 404.1520c in evaluating the opinion evidence and reached conclusions supported by substantial evidence.
3. RFC for Light Work
Plaintiff argues that because the ALJ erred in assessing her statements about her symptoms and pain and failed to consider the combined effects of her impairments, he erroneously concluded she could perform work at the light exertional level. [ECF No. 14 at 49-52]. She maintains her testimony and her doctors' reports support a maximum RFC for sedentary work. Id. at 50. She asserts the ALJ failed to engage in a function-by-function analysis to support his conclusion that she could perform light work. Id. at 51. She contends the ALJ failed to resolve evidence that suggested she could not meet the lifting, pushing, pulling, standing, and walking requirements of light work. Id. at 52. She submits the ALJ relied on her ADLs to support a finding that she could perform light work without citing specific ADLs or explaining how they were consistent with the demands of light work. Id.
The Commissioner argues substantial evidence supports the ALJ's conclusion that Plaintiff could perform light work. [ECF No. 17 at 15]. He maintains Plaintiff's activities, including caring for her granddaughter, working as a nanny, going to the gym, riding an exercise bike, walking daily for exercise, and traveling to socialize with a male friend on weekends, were consistent with the ability to perform light work. Id. at 17. He asserts benign observations on physical exams and Plaintiff's treatment regimen were also consistent with her ability to perform light work. Id. at 17-18. He contends the ALJ expressly considered Plaintiff's ability to lift 20 pounds frequently and 10 pounds occasionally, stand six of eight hours, walk six of eight hours, and sit six of eight hours. Id. at 30-31. He argues that even if the ALJ had credited Plaintiff's argument that she was limited to sedentary work, he would not have found she was disabled because she had sedentary PRW as an outpatient receptionist. Id. at 14.
A claimant's RFC represents the most she can still do, despite limitations imposed by her impairments and symptoms. 20 C.F.R. § 404.1545(a). It must consider all the claimant's medically-determinable impairments and be based on all the relevant evidence in the record. 20 C.F.R. § 404.1545(b); SSR 96-8p, 1996 WL 374184, at *2. Such relevant evidence includes, but is not limited to: the claimant's medical history; medical signs and laboratory findings; the effects of treatment, including limitations or restrictions imposed by the mechanics of treatment (e.g., frequency of treatment, duration, disruption to routine, side effects of medication); reports of daily activities; lay evidence; recorded observations; medical source statements; and effects of symptoms, including pain, that are reasonably attributed to a medically-determinable impairment. SSR 96-8p, 1996 WL 374184, at *5.
The ALJ must include a narrative discussion that clarifies the restrictions he included in the RFC assessment, applies the pertinent legal requirements to the evidence, references specific medical facts, such as medical signs and laboratory evidence, and non-medical evidence, including ADLs and observations, and “explains how any material inconsistencies or ambiguities in the case record were considered and resolved.” SSR 96-8p, 1996 WL 374184, at *7; Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013) (citing Hines v. Bowen, 872 F.2d 56, 59 (4th Cir. 1989)).
As discussed above, the ALJ adequately addressed and thoroughly cited specific evidence in considering the medical opinions and Plaintiff's allegations as to the functional effects of pain and other symptoms. A review of the decision reveals his consideration of Plaintiff's medical history, diagnostic tests, her providers' observations, various treatments and their effectiveness, her reported ADLs, her statements to her providers, and other evidence. He provided further explanation as to how he considered the individual and combined effects of Plaintiff's impairments in including specific limitations in the RFC assessment.
The ALJ wrote: “In terms of claimant's bilateral shoulder pain, I found bilateral shoulder arthritis, status-post rotator cuff tear repair ‘severe' and considered this in restricting claimant to light work with frequent pushing/pulling with bilateral upper extremities, occasional overhead reaching, and occasional climbing ladders/scaffolds/ropes and crawling.” Tr. at 1098. He subsequently noted: “In terms of Plaintiff's alleged low back and hip pain, I found lumbar degenerative disc disease severe and degenerative joint disease involving hips ‘non-severe' and considered them in restricting claimant to light work with postural limitations of frequently climbing steps/ramps and balancing and occasionally climbing ropes/ladders/scaffolds, stooping, kneeling, crouching, and crawling.” Tr. at 1099.
The ALJ considered right ankle pain and status-post right ankle fracture “in restricting claimant to a range of light work with postural and environmental limitations.” Tr. at 1101. He accounted for left knee arthritis in “restricting claimant to light work with postural and environmental limitations; particularly with respect to kneeling, crouching and crawling.” Id. He considered Plaintiff's obstructive sleep apnea in assessing environmental limitations of avoiding hazards, ropes, ladders, and scaffolds. Id. He addressed Plaintiff's Graves' disease and obesity in restricting her to light work with postural and environmental limitations. Tr. at 1102, 1103.
The ALJ wrote:
I find that the combined effects of all of the claimant's impairments, severe and nonsevere set forth in section 6 above create synergies necessitating a more restrictive residual functional capacity than if considering the impairments individually. The combined effects were persuasive in concluding the claimant was limited to lifting 20 pounds occasionally and 10
pounds frequently, standing six of eight hours, walking six of eight hours and sitting six of eight hours.Id.
The ALJ acknowledged the record contained some abnormal clinical presentations, but they were “offset by generally benign presentations noted elsewhere in the record.” Id. He stated Plaintiff's treatment had generally been routine and conservative, aside from left shoulder arthroscopic rotator cuff repair in June 2018 and right ankle surgery in October 2021. Id.
Although Plaintiff argues the ALJ did not engage in a function-by-function assessment in concluding she could meet the exertional requirements of light work, the above explanation reflects that he specifically addressed her abilities to sit, stand, walk, lift, and carry. To the extent Plaintiff continues to argue the ALJ's specific consideration of a five-pound lifting restriction would result in an RFC for sedentary, as opposed to light work, the undersigned rejects this argument, as the ALJ provided valid reasons for declining to accept that Plaintiff was limited to lifting five pounds. In addition, as reflected in the ALJ's thorough discussion of Plaintiff's subjective allegations, the ALJ cited many reasons for concluding she was capable of engaging in light work, including her performance of light work over nearly a two-year period following her alleged onset date of disability and her other ADLs. Finally, as the Commissioner noted, even if the ALJ had found Plaintiff had a maximum RFC for sedentary work, he would have still ended the evaluation with a finding that she was not disabled at step four based on her ability to perform her sedentary PRW as an outpatient receptionist.
Therefore, the undersigned recommends the court find substantial evidence supports the ALJ's finding that Plaintiff could perform light work.
4. Mental RFC
Plaintiff argues the ALJ failed to properly assess her mental RFC. [ECF No. 14 at 52-56]. She maintains the ALJ summarily discounted the severity of her mental impairments and did not appropriately weigh the evidence in considering the four broad areas of mental functioning. Id. at 5354.
The Commissioner argues the ALJ cited substantial evidence to support his conclusion that Plaintiff's mental impairments were not severe. [ECF No. 17 at 31-34]. He notes Plaintiff's medical providers suggested no mental functional restrictions and the state agency psychological consultants found her mental impairments were non-severe. Id. at 33.
A severe impairment “significantly limits [a claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). “An impairment or combination of impairments is found ‘not severe' . . . when medical evidence establishes only a slight abnormality or a combination of slight abnormalities which would have no more than a minimal effect on an individual's ability to work even if the individual's age, education, and work experience were specifically considered (i.e., the person's impairment(s) has no more than a minimal effect on his or her physical or mental ability(ies) to perform basic work activities).” SSR 85-28.
Where the record includes evidence of mental impairments, the ALJ is required to use the special technique in 20 C.F.R. § 404.1520a to evaluate the severity of the mental impairments. After determining a claimant has a medically-determinable mental impairment, the ALJ must rate the degree of the claimant's functional limitation as none, mild, moderate, marked, or extreme based on “the extent to which [her] impairment(s) interfere with [her] ability to function independently, appropriately, effectively, and on a sustained basis” in the broad functional areas of understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. 20 C.F.R. § 404.1520a(b), (c)(2), (3), (4). If the ALJ rates the degree of the claimant's limitation as “none” or “mild,” he will generally conclude the impairment is non-severe, unless the evidence otherwise indicates there is more than a minimal limitation in the claimant's ability to do basic work activities. 20 C.F.R. § 404.1520a(d)(1). If the ALJ rates the degree of the claimant's limitation as “moderate,” “marked,” or “extreme,” he should consider the mental impairment as severe and assess whether it meets a listing. 20 C.F.R. § 404.1520a(d)(2). If the claimant's impairment is severe, but does not meet a listing, the ALJ must consider it in assessing the claimant's RFC. 20 C.F.R. § 404.1520a(d)(3).
The ALJ is required to reference in his decision “the significant history, including examination and laboratory findings, and the functional limitations that were considered in reaching a conclusion about the severity of the mental impairment(s)” and to “include a specific finding as to the degree of limitation in each of the functional areas.” 20 C.F.R. § 404.1520a(e)(4). If the ALJ errs in evaluating a claimant's mental impairment as non-severe, his error may be considered harmless if he proceeded beyond step two in the sequential evaluation process and considered the mental impairment in assessing the claimant's RFC. See Washington v. Astrue, 698 F.Supp.2d 562, 580 (D.S.C. 2010) (collecting cases); Singleton v. Astrue, C/A No. 9:08-1982-CMC, 2009 WL 1942191, at *3 (D.S.C. July 2, 2009).
The undersigned finds no merit to Plaintiff's argument that the ALJ summarily discounted the severity of her mental impairments. The ALJ thoroughly discussed the evidence he considered in evaluating the severity of Plaintiff's mental impairments as follows:
While the record reflects, that claimant has reported symptoms of depression and anxiety that are managed by her primary care provider with medications, not only has symptoms not required
specialized mental health treatment, other than a one-time visit to a counselor (Hearing Testimony), behavioral health assessment dated February 11, 2018 notes only mild depression and anxiety, consistent with mental status exam which is completely normal. Claimant is alert, well-groomed, good eye [contact], normal mood/affect, speech is logical and goal directed, thought processes and content are normal and she denied an[y] functional limitations in her activities of daily living, finances, family relationships and social skills (Ex 11F/13-15). Of note, while claimant reported increased depression in November 2018 which she attributed to the anniversary of her spouse's passing, within a couple of months of adjusting medications for anxiety and dysphoric mood, she reported ‘doing well' on previous prescribed dosage of Buspar, consistent with findings of normal mood and affect, normal behavior and thought content (Ex 15F/84) and reported ‘”she is feeling wonderful” (Ex 15F/89).
Although claimant reported an increase in depression with poor sleep in December 2019, she acknowledged increased situational stressors related to finances and possibly losing her house and the deaths of several family members in the last years; nonetheless mental status exam was completely normal with normal mood and affect, normal behavior and thought content (Ex 26F/8). Follow-up records with her primary care provider dated March 18, 2020 note that claimant reports ‘feeling better' and she is trying to find a job to avoid foreclosure and not sit at the house all day (Ex 28F/30), consistent with normal mental status (Ex 28F/30). When seen again, six-month later, on September 29, 2020 by her PCP, she again reported feeling better and was watching her granddaughter 2-3 times a week (Ex. 28F/21). Records dated August 13, 2021 note that claimant is dating a man who lives in Hendersonville, NC and she spends the weekends with him (a distance of about 40-miles from her home in SC). In addition to PHQ2 depression screen being negative, claimant relates that although she continues to struggle with her sleep, it has improved since she has become more active (Ex 28F/4).Tr. at 1093-94.
The undersigned finds the record refutes Plaintiff's argument that the ALJ did not appropriately weigh the evidence in considering the four broad areas of mental functioning. The ALJ cited substantial evidence to support the degree of limitation he assessed in each area. He explained he had found Plaintiff to have no limitation in understanding, remembering, or applying information, as she “denie[d] any difficulty with memory, understanding, following instructions and concentrating (Ex 4E/6)” and was “able to manage finances including paying household bills and operating checking and savings accounts (Ex 6E/4).” Tr. at 1094.
He stated he had considered Plaintiff to have no limitation in interacting with others, as she “denie[d] any difficulty getting along with others and described social activities such as going shopping as needed and attending church regularly (Ex 6E). Id. He further noted: “Although claimant has reported some social withdrawal (Ex 26F/8), medical records are void of any limitations in interpersonal skills as she is consistently observed to present as in no distress with normal behavior (Exs 26F, 15F and 25F). Further, the record reflects that claimant is dating a man who lives in Hendersonville and spends the weekend with him (Ex 28F/xxx).” Id.
He found Plaintiff had mild limitation in concentrating, persisting, or maintaining pace, noting:
While the claimant reports that she has difficulty completing tasks, it appears that she attributes this to her physical pain and not emotional functioning, as she denies difficulty concentrating, reports that she can finish what she starts, is able to handle her household finances and identified reading as a hobby (Ex 6E/6). Moreover, the claimant's testimony that she has worked since January 2021, for almost two-years caring for an infant child for a sustained 8-hours a day, as required by her job is consistent with no more than mild limitation in her ability to concentrate, persist at a task and maintain pace.Tr. at 1094-95.
The ALJ concluded Plaintiff had mild limitation in adapting or managing oneself based on the following:
While the claimant relates that she needs some assistance in personal care; again, this appears to be related to physical limitations which she identifies as difficulty reaching (Ex 6E/2). Otherwise, she reports she handles stress ‘pretty good' and changes in routine ‘well' and is able to independently shop, drive and manage her household (Ex 6E). Although in a subsequent Function Report completed in April 2019, claimant reported that ‘stress causes anxiety on a bad day' (Ex 7E/7), she again described physical limitations affecting her personal care and reported that she is able to shop for up to two-hours at a time for household items, drive, and spend time regularly with her children and family (Ex 7E/4-5). Moreover, the claimant's testimony that she has worked since January 2021, for almost two-years, caring for an infant child on a regular basis and references to her caring for her grandchild while the parent was at work is consistent with no more than mild limitation in adapting or managing herself (Ex 28F/22).Tr. at 1095.
The ALJ further explained he had found Plaintiff's mental impairments to be non-severe, as they caused no “more than a minimal limitation in [her] ability to do basic work activities.” Id. Although he noted he had considered all of Plaintiff's impairments, including those that were non-severe, in assessing her RFC, he further indicated “[t]he evidence does not support a finding of any additional functional limitations other than those included in [the RFC assessment]. Id. He considered Plaintiff's mental functioning in the RFC assessment to the extent he found: “She can perform simple and detailed work on a sustained basis eight-hours a day, five-days a week in two-hour increments with normal breaks for an eight-hour day with frequent decision-making, judgment, and changes in the work setting.” Tr. at 1097. He considered persuasive the state agency psychological consultants' opinions and discussed treatment records throughout the relevant period. Tr. at 1105.
Because the ALJ followed the special technique, cited specific evidence of record to support his conclusion, and provided a well-reasoned explanation to support his assessment of Plaintiff's mental impairments as non-severe, the undersigned recommends the court find substantial evidence supports his conclusion.
III. Conclusion and Recommendation
The court's function is not to substitute its own judgment for that of the Commissioner, but to determine whether his decision is supported as a matter of fact and law. Based on the foregoing, the undersigned recommends the Commissioner's decision be affirmed.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); See Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
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).
