South Carolina Cases July 23, 2019: Hickman v. Saul

Case Description

REPORT AND RECOMMENDATION

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) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her claim for Disability Insurance Benefits ("DIB"). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether she applied the proper legal standards. For the reasons that follow, the undersigned recommends the Commissioner's decision be reversed and remanded for further proceedings as set forth herein.

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I. Relevant Background

A. Procedural History

On April 17, 2014, Plaintiff filed an application for DIB in which she alleged her disability began on August 27, 2005. Tr. at 279-82. Her application was denied initially and upon reconsideration. Tr. at 183-86, 199-203, 205-09. On October 14, 2016, Plaintiff had a hearing before Administrative Law Judge ("ALJ") Brian Garves. Tr. at 81-129 (Hr'g Tr.). The ALJ issued an unfavorable decision on November 28, 2016, finding Plaintiff was not disabled within the meaning of the Act. Tr. at 54-80. Subsequently, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. Tr. at 35-41. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on July 18, 2018. [ECF No. 1].

B. Plaintiff's Background and Medical History

1. Background

Plaintiff was 37 years old at the time of the hearing. Tr. at 119. She obtained a dual degree in criminal justice administration and sociology. Tr. at

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117-18. Her past relevant work ("PRW") was as a deputy sheriff, a retail closing manager, and a customer service banker. Tr. at 90-93. She alleges she has been unable to work since August 27, 2005, and described her original injury as occurring on October 4, 2004. Tr. at 90, 123-24.

2. Medical History

On October 4, 2004, Plaintiff presented to Lexington Medical Center ("LMC") with complaint of knee pain due to twisting it at work that morning. Tr. at 362-69. A knee x-ray showed a small joint effusion. Tr. at 368. Robert Mearns, M.D. ("Dr. Mearns"), found knee effusion and tenderness, placed Plaintiff in a knee immobilizer, assessed sprained knee, prescribed Tylox, and instructed her to follow up with orthopedics per her workers' compensation provider. Tr. at 362.

On October 8, 2004, Plaintiff presented to LMC Occupational Health and reported she previously twisted her right knee while chasing a burglary suspect in a parking lot. Tr. at 358-60. Plaintiff also reported she had been out of work as a deputy sheriff since the incident, her knee felt like it would "give way" when she tried to walk on it, and her pain was 6.5/10. Tr. at 358.

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The attending nurse found swelling over the knee's medial aspect, assessed sprained left knee, prescribed medication, scheduled an MRI to rule out internal derangement, noted an orthopedic referral was likely, and opined Plaintiff could "[r]eturn to work [with] sedentary restrictions." Tr. at 359-60.

On October 12, 2004, a left knee magnetic resonance image ("MRI") reflected an anterior cruciate ligament ("ACL") tear, with an associated meniscal tear. Tr. at 361.

On October 15, 2004, Plaintiff presented to Frank K. Noojin, M.D. ("Dr. Noojin"), at Moore Orthopaedic Clinic, with complaints of left knee pain. Tr. at 424-28. Dr. Noojin discussed Plaintiff's options and scheduled a left knee arthroscopy with partial medial meniscectomy and ACL reconstruction with patellar tendon autograft, noting it was usually an outpatient procedure that allowed physical therapy within a week of surgery. Tr. at 425.

On October 19, 2004, Plaintiff presented to HealthSouth for physical therapy and attended approximately 50 physical therapy sessions from October 2004 to April 2005. Tr. at 429-40, 540-83, 467-600.

On October 28, 2004, Plaintiff presented to Dr. Noojin and reported she was "doing great." Tr. at 421-23. Dr. Noojin noted Plaintiff was scheduled for surgery and she could do light duty, with no climbing, kneeling, squatting, or crawling, until the surgery date if there was work available. Id .

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On November 8, 2004, Dr. Noojin performed a left knee arthroscopy with arthroscopic ACL reconstruction and anticipated a six-month recovery process. Tr. at 372-74.

On November 10, 2004, Plaintiff presented to Dr. Noojin for follow up. Tr. at 419-20. Knee x-rays showed tunnels were in good position. Id . Dr. Noojin kept Plaintiff out of work and scheduled a follow up in two weeks. Id .

On November 24, 2004, Plaintiff presented to Dr. Noojin, who removed her sutures and noted the incision was healing nicely. Tr. at 416-19. Dr. Noojin continued physical therapy and kept Plaintiff out of work, but noted "[s]he could do some light duty sedentary type work within a couple of weeks." Id .

On December 14, 2004, Plaintiff presented to physical therapy and reported her knee was still sore. Tr. at 429, 438. The therapist noted Plaintiff continued to progress well. Id .

On December 15, 2004, Plaintiff presented to Dr. Noojin, who found Plaintiff had minimal effusion and her incision was healing nicely and counseled Plaintiff to "continue to work on extension." Tr. at 415-16. Dr. Noojin noted Plaintiff could "go back to work light duties, sedentary duties only if available" and scheduled a follow up in four weeks. Id .

On January 21, 2005, Plaintiff presented to Dr. Noojin and reported she was doing well. Tr. at 411-14. Dr. Noojin found Plaintiff's gait was

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slightly antalgic and her knee was minimally tender over the medial and lateral joint lines. Id . Dr. Noojin noted Plaintiff had been working very hard on her extension and continued her on light duty until her appointment in six weeks. Id .

On March 4, 2005, Plaintiff presented to Dr. Noojin and reported her knee and back were "doing better." Tr. at 409-10. Dr. Noojin noted, "[a]t this time she is almost ready to go back to regular work[,] but I think given all of the road responsibilities she would be better off at light duty for 4 more weeks at which time we anticipate return to her regular job" and she continued physical therapy to work on strength. Id .

On April 15, 2005, Plaintiff presented to Dr. Noojin for follow up and reported she was doing well. Tr. at 404-08. Dr. Noojin found Plaintiff had symmetrical flexion, stable Lachman, and no effusion, but some quadricep atrophy and "fairly significant strength losses on the left compared to the right, but she want[ed] to go back to work doing her regular job." Id . Dr. Noojin opined Plaintiff's graft had healed nicely, continued physical therapy to build strength in her legs, and "return[ed] her to her regular job." Id .

On May 13, 2005, Plaintiff presented to Dr. Noojin and reported she was "doing better, but she still ha[d] a lot of pain." Tr. at 400-03. Plaintiff also reported she had returned to regular work, but pain in her back and knee due to climbing a lot of stairs. Id . Dr. Noojin found Plaintiff's gait was

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slightly antalgic and she had positive apprehension, but stable bilateral knees, negative straight leg raise ("SLR") tests, and no effusion and she was generally alert and oriented. Id . Dr. Noojin compared Plaintiff's knee results from the prior month, noted additional rehabilitation should help, and kept her at regular work status. Id .

On June 29, 2005, Plaintiff presented to Dr. Noojin with complaints of continued knee and back pain. Tr. at 397. Plaintiff reported she could not run without knee pain and had returned to regular work, but had some difficulty. Id . Dr. Noojin noted Plaintiff's gait was antalgic and her right knee hyperextended, but she was alert, oriented, and appropriate, had negative SLR tests, and appeared to be neurovascularly intact bilaterally. Id . Dr. Noojin assessed status-post ACL reconstruction and mechanical low back pain and ordered lumbar spine and knee MRIs. Id . Dr. Noojin returned Plaintiff to regular duties at work. Tr. at 398.

On July 9, 2005, a lumbar spine MRI reflected a small central protrusion at L4-L5, with facet arthropathy, and a hemitransverse articulation on the left at L5-S1 with partial sacralization at L5, but no stenosis. Tr. at 370. A left knee MRI showed intact ACL reconstruction, longitudinal tear involving the posterior horn of the medial meniscus, and mild arthrofibrosis extending along the infrapatellar plica. Tr. at 371, 861.

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On July 18, 2005, Plaintiff presented to Dr. Noojin for follow up. Tr. at 396-97. A lumbar spine MRI showed slight stenosis at L4-L5 with no major disc herniations. Id . A left knee MRI showed an intact ACL graft, but a peripheral tear of the medial meniscus and a possible slight cyclops lesion that may block her extension. Id . Dr. Noojin assessed medial meniscus tear left knee with cyclops, recommended a repeat arthroscopy for her knee, and referred her to W. Alaric Van Dam, M.D. ("Dr. Van Dam"), for a possible injection for her back. Id .

On August 10, 2005, Dr. Van Dam administered a translaminar epidural steroid injection ("ESI"). Tr. at 392-95.

On August 19, 2005, Plaintiff presented to Dr. Noojin and reported some relief from her back pain, but continued knee pain. Tr. at 392. Dr. Noojin assessed left knee pain with questionable medial meniscus tear. Id . Dr. Noojin scheduled a left knee arthroscopic intervention, but noted Plaintiff would be kept "in her regular job." Id .

On August 29, 2005, Dr. Noojin performed a left knee arthroscopy with medial meniscus repair and medial plicectomy or meniscectomy. Tr. at 390-91, 660-77.

On September 1, 2005, Plaintiff presented to Dr. Noojin and reported some discomfort, but she was "doing well." Tr. at 389. Dr. Noojin noted the

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incision was healing well, ordered physical therapy, and issued a work excuse. Id .

On September 9, 2005, Plaintiff started physical therapy at HealthSouth and attended approximately 30 visits between September 2005 and February 2006. Tr. at 503-39, 467-600.

On September 22, 2005, Plaintiff presented to Dr. Noojin with complaints of continued knee and back pain. Tr. at 387-89. Dr. Noojin noted he thought Plaintiff's back pain was related to her knee, continued therapy, prescribed a brace, referred her to Dr. Van Dam for an injection, noted she would likely be out of work for three more months, and issued a work excuse. Id .

On October 4, 2005, Dr. Van Dam administered a translaminar ESI. Tr. at 385-86.

On October 26, 2005, Plaintiff presented to Dr. Noojin with complaints of continued back and knee pain and reported she was "still having a hard time," despite two injections. Tr. at 382-84. Dr. Noojin found medial and lateral joint line and lumbosacral tenderness. Id . Dr. Noojin noted Plaintiff's frustration, issued a work excuse for at least six weeks, indicated she would be unable to perform a functional evaluation due to her pain, continued her therapy, and prescribed Naprosyn and Mepergan. Id .

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On November 10, 2005, Dr. Noojin noted he was a physician at Moore Orthopaedic Clinic, had treated Plaintiff for work-related injuries that she sustained to her left-lower extremity and back due to an accident on October 4, 2004, and opined Plaintiff had reached maximum medical improvement ("MMI") for her lower extremity, but not her back, which required additional treatment. Tr. at 381.

On December 1, 2005, Plaintiff presented to Dr. Noojin with complaints of low back and knee pain. Tr. at 379. Plaintiff reported she did not receive "a lot of relief" from an injection and was frustrated. Tr. at 379-80. Dr. Noojin found left quadricep atrophy and a fairly antalgic gait, but no knee effusion, full range of motion ("ROM"), and negative SLR tests. Id . Dr. Noojin noted, "At this point we have really done most of what I know to do for her. We still can't return her to work at this point." Id . Dr. Noojin provided additional exercises, scheduled a follow-up visit in six weeks, and instructed Plaintiff to remain out of work. Id .

On December 7, 2005, Dr. Noojin met with Plaintiff's case manager and noted they would keep Plaintiff in physical therapy, but "keep her out of work as there is really nothing she can do at this point" and she would seek a second opinion Tr. at 378.

On December 8, 2005, Plaintiff presented to Kevin Nahigian, M.D. ("Dr. Nahigian"), at Carolina Shoulder and Knee Specialists for a second medical

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opinion. Tr. at 693-94. Dr. Nahigian explained "she ha[d] been handled very appropriately," but "[t]his [was] an extremely difficult problem in a young person." Tr. at 693. Dr. Nahigian assessed status-post left knee ACL reconstruction, healed, and left knee medial joint line discomfort following medial meniscal repair. Tr. at 712. Dr. Nahigian did not "feel that additional conservative options [were] great," administered an injection, and recommended a knee arthroscopy if Plaintiff did not improve. Tr. at 692. Dr. Nahigian continued Plaintiff's restrictions. Tr. at 465.

On January 24, 2006, Plaintiff presented to Dr. Noojin. Tr. at 375-77. Dr. Noojin noted Plaintiff had "really not progressed," was "in therapy for a long time," and had obtained a second opinion and received a Cortisone injection, but no relief. Tr. at 375. Dr. Noojin found Plaintiff's gait was antalgic and assessed residual left knee and low back pain. Id . Dr. Noojin noted,

At this point, regarding her knee, I think she has reached [MMI] as far as nonoperative measures. Should she pursue arthroscopy, I personally would not just look at the meniscus. I would consider lateral release since this is the third surgery. . . . Personally, having already looked at her medial meniscus twice, I don't think the meniscus is the problem. There was barely even a tear of the medial meniscus at the initial surgery. When I repaired it at the second surgery, there was only [a] 1 cm quite stable tear. I would be very surprised if this has not in fact healed.

Tr. at 375. Dr. Noojin also noted he would keep Plaintiff out of therapy and work with her current restrictions, would be prepared to do a lateral release

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if the meniscus findings were negative, and offered to send Plaintiff to Dr. Van Dam for an opinion to determine whether her back pain was secondary to abnormal gait mechanics. Tr. at 375-76.

On February 3, 2006, a left knee x-ray reflected patella-femoral chondrosis with possible medial meniscal repair, unhealed. Tr. at 691-92.

On February 6, 2006, Plaintiff presented to Dr. Nahigian, who performed a left knee partial medial meniscectomy and left knee lateral retinacular release. Tr. at 641-59.

On February 21, 2006, Plaintiff presented to Dr. Nahigian and reported she was consistently improving. Tr. at 691. Dr. Nahigian assessed two weeks status-post left knee arthroscopy for posterior horn tear of the medial meniscus and lateral retinacular release, doing well. Id .

On March 29, 2006, Plaintiff presented to Dr. Nahigian and received an injection for continued knee pain. Tr. at 466, 640, 687. Dr. Nahigian assessed medial meniscus tear and opined Plaintiff had the same restrictions. Id . Dr. Nahigian referred Plaintiff to Todd S. Jarosz, M.D. ("Dr. Jarosz"), for her back pain and noted Plaintiff had been terminated from employment due to her exhausted leave and so there was no rush to return her to work, but continued the same restrictions. Id .

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On April 11, 2006, Plaintiff presented to Dr. Jarosz, with complaints of back pain. Tr. at 638-39, 686, 688-90. Dr. Jarosz performed an exam and referred Plaintiff to Steven B. Storick, M.D. ("Dr. Storick"), for a bilateral L4-L5 facet joint injection and possibly L5-S1 injections. Id . Dr. Jarosz recommended Plaintiff begin a physical therapy program to improve her pain and expressed concern that she would continue to have pain until her gait was normal. Id .

Also on April 11, 2006, Plaintiff presented to Dr. Nahigian. Tr. at 447-57. Dr. Nahigian opined Plaintiff was medically qualified to perform the essential duties of her job, but needed accommodations because she temporarily could not bend or climb ladders or poles, was limited in stooping and squatting, and could only lift up to 30 pounds. Tr. at 448.

On May 9, 2006, Plaintiff presented to Dr. Storick. Tr. at 443-46. Dr. Storick reviewed Plaintiff's prior medical history, noted she had limited ROM in her left knee with tenderness along the left lumbosacral junction, and assessed chronic low back pain and lumbar spondylosis. Tr. at 443. Dr. Storick noted Plaintiff's ongoing back pain may have multiple etiologies and administered facet joint injections. Tr. at 444-45, 610-17, 858-60.

On May 11, 2006, Plaintiff presented to Dr. Nahigian and reported she continued to have episodes of instability with her left leg, but her swelling and pain had improved. Tr. at 639, 686. Dr. Nahigian explained episodes of

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instability were due to residual weakness in Plaintiff's leg. Id . Dr. Nahigian limited Plaintiff to the same work restrictions and continued physical therapy. Tr. at 458, 639.

On May 31, 2006, Plaintiff presented to Dr. Jarosz with exacerbated back pain the prior week. Tr. at 636, 685. Dr. Jarosz ordered a bone scan of the lumbar spine and continued her physical therapy. Id .

Also on May 31, 2006, Dr. Nahigian opined Plaintiff was medically qualified to perform the essential duties of her job, but needed accommodations because she temporarily could not bend, was limited in stooping and squatting, and could only lift up to 30 pounds. Tr. at 459. Dr. Nahigian continued physical therapy. Id .

On June 27, 2006, a bone scan was unremarkable. Tr. at 441, 460.

On June 29, 2006, Plaintiff presented to Dr. Jarosz with complaints of knee and back pain. Tr. at 634, 683. Dr. Jarosz reviewed Plaintiff's medical history, performed a physical exam, referred her to Ezra B. Riber, M.D. ("Dr. Riber"), for a consultation regarding medial branch blocks and facet joint rhizotomy. Tr. at 634. He also opined Plaintiff was medically qualified to perform the essential duties of her job, but needed accommodations because

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she temporarily could not bend or climb ladders or poles, was limited in stooping and squatting, and could only lift up to 30 pounds. Tr. at 461.

On July 11, 2006, Plaintiff presented to Dr. Nahigian, who noted she was "much improved with decreasing pain and swelling." Tr. at 463, 633, 682. Dr. Nahigian found a well-tracking patella and nearly resolved swelling and joint line symptoms. Id . Dr. Nahigian assessed "[status-post] partial medial meniscectomy and lateral retinacular release, doing well." Id . Dr. Nahigian concluded,

We will allow three additional months in case the patient is having problems, then she will be automatically declared MMI. I do feel it is imperative that she continue to strengthen the leg. She may transition to a home exercise program and continue with her swimming. For her total knee injury and surgical intervention, she will be assigned a 10% permanent impairment rating of the left lower extremity. She has no absolute restrictions and may participate in activities as she desires.

Id .

On August 3, 2006, Plaintiff presented to Dr. Nahigian and reported she twisted her left knee when she was chased by a dog. Tr. at 632, 681. Dr. Nahigian noted Plaintiff "had done extremely well prior to this injury" and found a Grade 1 medial collateral ligament ("MCL") sprain and secondary

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synovitis. Tr. at 632. Dr. Nahigian injected Depo-Medrol and Lidocaine into Plaintiff's left knee and scheduled a follow-up appointment in four weeks. Id .

On August 23, 2006, Plaintiff presented to Dr. Riber, at Palmetto Pain Management, for a consultation and evaluation of back pain. Tr. at 708-09, 737-38. Dr. Riber found lumbar spine pain and an unremarkable gait. Id . Dr. Riber assessed post-traumatic lumbar facet syndrome and "reasonably good, short-term relief from intra-articular facet injections" and scheduled medial branch blocks. Id .

On September 21, 2006, Dr. Riber administered medial branch blocks at L4-L5 and L5-S1, bilaterally. Tr. at 717, 736.

On October 3, 2006, Plaintiff presented to Dr. Nahigian and reported her knee remained the same or slightly improved. Tr. at 631, 680. Dr. Nahigian noted Plaintiff's knee ROM was improving, but her MCL was tender and her quadricep strength was weak. Id . Dr. Nahigian limited her to the "same restrictions of essentially a sit-down job," scheduled an appointment in six weeks, and hoped she would reach MMI at that time. Id .

On October 10, 2006, Plaintiff attended additional physical therapy sessions at HealthSouth until December 29, 2006. Tr. at 467-502, 467-600.

On October 19, 2006, Dr. Riber performed medial branch blocks at L3-L4, L4-L5, L5-S1, bilaterally. Tr. at 716, 735.

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On November 8, 2006, Dr. Riber performed medial branch blocks at L4-L5 and L5-S1 facet joints, bilaterally. Tr. at 734.

Also on November 8, 2006, Dr. Jarosz referred Plaintiff to Dr. Riber for a facet joint rhizotomy. Tr. at 630, 679. Dr. Riber continued Plaintiff's work restrictions of lifting no greater than 30-35 pounds with limited squatting and stooping and avoiding frequent bending and prolonged standing more than four hours. Id . Dr. Jarosz noted he would be relocating, but Dr. Riber could refer Plaintiff to an appropriate doctor for further follow up, and he believed she would be "much better after her facet joint rhizotomies and if she is able to lose about 40-50 pounds." Id .

On December 5, 2006, Dr. Nahigian opined Plaintiff's knee had reached MMI with a 10% impairment rating and noted she had restrictions for her back that would supersede any knee restrictions. Tr. at 464, 678. Dr. Nahigian noted he did "not foresee any long-term specific restrictions or limitations." Tr. at 678.

On December 11, 2006, Plaintiff presented to Dr. Riber for follow up. Tr. at 715, 733. Dr. Riber noted intra-articular facet injections provided modest improvement and medial branch blocks provided moderate improvement. Id . Dr. Riber recommended medial branch blocks L3-L4 through L5-S1 bilaterally with possible radiofrequency rhizotomy. Id .

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On January 2, 2007, Dr. Riber performed radiofrequency rhizotomy with medial branches supplying L4-L5 and L5-S1 on the right side. Tr. at 732.

On January 26, 2007, Dr. Riber performed medial branch blocks at L3-L4 through L5-S1, bilaterally. Tr. at 731.

On March 2, 2007, a lumbar spine MRI showed a small central protrusion at L4-L5, without lateral deformity, and "some asymmetry of development at the L5 segment, which could reflect altered stress." Tr. at 601, 862.

On March 14, 2007, William Rambo, M.D. ("Dr. Rambo"), performed an independent medical evaluation. Tr. at 602-09, 856-57. Dr. Rambo noted Plaintiff's medical history and treatment for her knee injury and back pain, including three surgeries, physical therapy, injections, and medications. Tr. at 602. Dr. Rambo could not appreciate "any muscle atrophy, fasciculation, or focal weakness in the legs." Id . Plaintiff had 5/5 quadricep strength and intact sensation and could stand, flex, and extend at the waist within normal limits. Id . Dr. Rambo found some hamstring tightness, diffuse tenderness to palpation ("TTP") in the lumbosacral region, and a positive Waddell sign. Id . Dr. Rambo assessed chronic low back pain and opined,

[Plaintiff] has been very thoroughly and appropriately evaluated and treated. Her neurologic examination is intact. Her MRI shows only mild pathology which is most likely longstanding. I do

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not feel that any other treatment is necessary, not even a rhizotomy. I believe that she has reached [MMI]. I believe that approximately 50% of her current low back pain symptomatology is due to her work-related injury of 10/4/04, the other 50% is more chronic. In terms of rating purposes, I believe that she is in DRE Lumbar Category II, according to the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition, page 384. I would give her a 5% impairment of the whole person.

Tr. at 603.

On April 2, 2007, Lawrence Bergmann, Ph.D. ("Dr. Bergmann"), performed an independent medical examination. Tr. at 618-20. Plaintiff reported the history of her injuries and she was not working, but added she was training to be a missionary and planning to complete her college degree. Tr. at 618. Plaintiff also reported symptoms of anxiety and panic attacks that improved when she took Cymbalta, but she had stopped taking the medication. Tr. at 618-20. Dr. Bergmann administered two tests and found Plaintiff was experiencing "anxiety and tension, depressed mood, excessive worry and apprehension, impaired concentration, irritability and anger, pessimistic thinking, lack of adaptation to disability, avoidance of interpersonal contact, restlessness, and sleep disruption." Id . Plaintiff was oriented and alert, with fair judgment and ability to maintain focus, but she had a depressed mood and psychomotor activity was characterized by restlessness. Id . Dr. Bergmann diagnosed adjustment disorder, with mixed anxiety and depressed mood, and pain disorder. Id . Dr. Bergmann

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recommended a short course of mental health services, including psychotherapy and psychotropic medication, and noted Plaintiff would likely make good progress with treatment.

On May 10, 2007, Dr. Riber noted Plaintiff continued to experience significant pain in her lumbar spine and was not at MMI, but needed additional pain management treatment and was a strong candidate for a rhizotomy procedure that should "tend to lessen her period of disability." Tr. at 730.

On July 16, 2007, Plaintiff presented to Henry J. Marion, M.D. ("Dr. Marion"), at Lexington County Health Services, with complaints of lower back pain. Tr. at 774.

On August 14, 2007, Plaintiff presented to Nancy Lembo, D.O. ("Dr. Lembo"), at Palmetto Spine Sports Medicine, for an initial consultation. Tr. at 626-29. Dr. Lembo reviewed Plaintiff's treatment history and decided to perform a medial branch block prior to a radiofrequency procedure to ensure it would address her pain. Tr. at 628.

On August 28, 2007, Dr. Lembo administered a left L3, L4, L5 median branch block. Tr. at 623-24.

On September 4, 2007, Plaintiff presented to Dr. Lembo, with complaints of back pain. Tr. at 621-25. Dr. Lembo noted Plaintiff had received an injection and did not have immediate relief, but her left back pain

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was 3/10, she moved without assistance, and her gait was nonantalgic. Tr. at 621. Dr. Lembo assessed low back pain and small central disk protrusion at L4-L5 with facet arthropathy. Tr. at 622. Dr. Lembo explained the medial branch block was not positive, recommended against radiofrequency ablation, and felt that a stimulator would help Plaintiff's pain, as it appeared to be more myofascial in nature. Id . Dr. Lembo opined Plaintiff would reach MMI once she received the stimulator unit and did not schedule a follow-up appointment. Id .

On October 9, 2007, Dr. Riber recommended bilateral radiofrequency rhizotomy and noted this appeared to be Plaintiff's sole treatment option. Tr. at 713-14, 728-29. Dr. Riber noted Dr. Lembo only administered treatment to one side, such that Plaintiff could not be expected to show improvement due to her bilateral facet syndrome. Id .

On November 12, 2007, Plaintiff presented to Dr. Marion "for abdominal discomfort, right flank pain." Tr. at 774. Dr. Marion assessed abdominal pain and instructed her to continue analgesics and Prilosec. Id .

On December 13, 2007, Plaintiff presented to Robert Deysach, Ph.D. ("Dr. Deysach"), for an outpatient neuropsychological consultation. Tr. at 696-98. Dr. Deysach recommended counseling either to deal with adjustment of maintenance of her current physical status or, should additional treatment be performed, for managing the contingencies of such treatment. Id .

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Beginning January 17, 2008, through March 18, 2008, Plaintiff attended five counseling sessions for depression and anxiety and reported improvement with Cymbalta, but noted it made her tired. Tr. at 699-705.

On March 28, 2008, Dr. Riber performed a radiofrequency rhizotomy at L2 through S1, bilaterally. Tr. at 725-27.

On April 23, 2008, Plaintiff presented to Dr. Riber and reported she was "doing better." Tr. at 712, 724. Dr. Riber noted Plaintiff had complete relief of right-sided back pain after the radiofrequency rhizotomy and her left-sided pain was improving, but she still had residual discomfort that was not unusual after the treatment. Id . Dr. Riber also noted her improvement was underscored by the fact she no longer took pain medication. Id . Dr. Riber found greater ROM in the lower back, with some discomfort on extension, but it was "overall significantly improved" and her gait was unremarkable. Id . Dr. Riber explained Plaintiff's pain may resolve within 2-3 months. Id .

On May 21, 2008, Plaintiff presented to Dr. Riber and reported she was "doing well" after the radiofrequency treatment. Tr. at 711, 723. Dr. Riber found Plaintiff's gait was unremarkable and her lumbar spine ROM had improved, but she had some discomfort with extension, although it was improved since her prior visit. Id . Dr. Riber prescribed Cymbalta and Celebrex and scheduled a follow up visit in one month. Id .

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On July 7, 2008, Plaintiff presented to Dr. Riber for follow up. Tr. at 710, 722. Dr. Riber noted Plaintiff had "made some good progress including increased activity and adjustments of her medication" and her activity level had increased although she "[paid] the price" for several days afterwards, but demonstrated a "bounceback" with improvement again. Id . Dr. Riber explained Plaintiff would "always have some residual discomfort" and "[a]s long as she knows her limits and has a reasonable outlook, I expect her to do fine." Id . Dr. Riber noted "the only thing missing [was] a home exercise program" and recommended several visits at Total Rehab, such that Plaintiff could become independent in a home exercise program to help maintain her improvement and mobility. Id . Dr. Riber continued Plaintiff's medications and noted she was approaching MMI. Id .

On October 8, 2008, Plaintiff presented to Dr. Riber for follow up. Tr. at 707, 721. Dr. Riber noted Plaintiff's pain "responded nicely" to interventional treatment, including radiofrequency rhizotomy, and she had participated in an independent home exercise program through Total Rehab that recommended aquatic therapy. Id . Plaintiff also expressed interest in psychotherapy. Id . Dr. Riber found reasonably good lumbar spine ROM, with pain on extension and flexion, and an unremarkable gait. Id . Dr. Riber agreed Plaintiff could participate in both requested therapies. Id .

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On December 22, 2008, Plaintiff presented to Dr. Riber. Tr. at 706, 718-20. Dr. Riber found Plaintiff's gait slightly favored her left leg and she had discomfort with extension and flexion of her lumbar spine. Id . Dr. Riber assessed improved bilateral lumbar facet syndrome, chronic intractable back pain, post-traumatic lumbar facet syndrome, and "reasonably good pain relief" with interventional treatment, including radiofrequency rhizotomy and current medication. Id . Dr. Riber opined Plaintiff was at MMI and he would anticipate ongoing medications, such as Cymbalta and Lyrica, would be required to lessen her disability. Id . In addition, radiofrequency treatment to her facets had been successful and would likely need to be repeated every six months. Id . Dr. Riber opined Plaintiff's bilateral multilevel lumbar facet syndrome caused a 13% impairment of the whole person. Id . Plaintiff was issued a disabled placard for one year due to her mobility impairment. Tr. at 720.

Plaintiff followed up with Dr. Marion for primary care on April 2, 2009, April 17, 2009, June 11, 2009, February 17, 2010, June 29, 2010, August 9, 2010, February 3, 2011, November 8, 2011, April 4, 2012, July 24, 2012, and February 27, 2013. Tr. at 765-75.

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On May 22, 2013, Plaintiff presented to Dr. Marion "for follow up of injuries sustained in a motor vehicle accident" on May 16, 2013, with complaints of neck, arm, back, and knee pain, with headache. Tr. at 762-64. Dr. Marion found TTP in the paracervical, supraclavicular, lumbosacral paraspinal, mid-spinous, and peri-patellar areas. Id . Dr. Marion assessed headache and neck, knee, arm, and lower back pain. Tr. at 763.

On May 29, 2013, Plaintiff presented to Dr. Marion for follow up of her accident-related injuries. Tr. at 759-61. Dr. Marion noted some slight improvement, but found TTP in her neck, upper back, and knee, with spasms in the paraspinal muscles. Id . Dr. Marion assessed neck, lower back, and knee pain and refilled her prescriptions. Id

Plaintiff followed up with Dr. Marion on June 12, 2013. Tr. at 756-58. Dr. Marion noted persistent discomfort and observed tenderness in Plaintiff's neck, back, arm, and knee. Id . Dr. Marion referred Plaintiff to physical therapy. Id .

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On June 13, 2013, Plaintiff presented to Ellis Physical Therapy Associates due to knee, back, and arm pain. Tr. at 906-907. Plaintiff had 3/5 muscle strength with pain and resistance in every plane. Id . The physical therapist noted Plaintiff's signs and symptoms were consistent with soft tissue injuries and she would benefit from skilled physical therapy to improve strength, decrease pain, and increase active ROM. Id .

On July 23, 2013, Plaintiff presented to Dr. Marion for follow up. Tr. at 753-55. Dr. Marion noted physical therapy had been very helpful, but found tenderness in the cervical and lumbar spine areas. Id . He assessed arm, knee, neck, and lower back pain and headache due to the accident and prescribed Cyclobenzaprine, Meperidine, and Promethazine. Id .

On September 19, 2013, Plaintiff presented to Dr. Marion with complaints of continued hip pain from the accident. Tr. at 750-52. Dr. Marion noted an ambulation impairment and discomfort in the greater trochanteric area. Id . He assessed arm, hip, low back, and neck pain and referred Plaintiff for additional physical therapy. Id .

On October 7, 2013, Plaintiff presented to Dr. Marion for follow up and reported "some residual discomfort in the neck, back, and knee areas." Tr. at 747-49. Dr. Marion noted physical therapy had been completed and there was significant improvement in her symptoms. Id . He also noted Plaintiff had "some discomfort in several years prior to the accident but [felt] this was

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worsened by the accident." Id . Dr. Marion found tenderness in the supraclavicular and lumbosacral paraspinal muscles with some discomfort in knee palpation and extension. Tr. at 748. Dr. Marion assessed neck, lower back, and arm pain and noted Plaintiff would continue home therapy. Tr. at 749.

On October 29, 2013, Plaintiff present to Dr. Marion for follow up. Tr. at 744-46. Dr. Marion noted Plaintiff had participated in physical therapy, taken prescriptions, and reported some ongoing discomfort that was tolerable with the prescribed medications, but "[m]aximum benefit" had been achieved. Id . He found mild discomfort or tenderness in Plaintiff's back or knees. Tr. at 745. He assessed nausea and knee, arm, neck, and back pain, prescribed Promethazine, Cyclobenzaprine, Meperidine, and Ibuprofen, and opined Plaintiff had "reached maximum medical and physical therapy benefit from injury sustained from a motor vehicle accident." Tr. at 746.

On January 15, 2014, Dr. Marion stated,

This letter is provided at the request of [Plaintiff] and verifies that she has received medical care at the Lexington Family Practice Northeast Columbia office. She has had ongoing disability secondary to musculoskeletal disorders. These include bilateral knee pain and chronic lower back pain. This note provides confirmation that her last day of work activity is documented as of 8/26/2005 through 12/31/2010. Ongoing disability continues to the present time. Due to her condition, she is unable to perform work activity. Medical records are available upon request.

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Tr. at 739.

On March 17, 2014, Plaintiff presented to Dr. Marion with cold symptoms and chronic pain in her back and knees. Tr. at 740-43. Dr. Marion assessed acute tracheobronchitis and irritable bowel syndrome, prescribed Benzonatate, and provided a referral to gastroenterology. Tr. at 742.

On August 11, 2014, Darla Mullaney, M.D. ("Dr. Mullaney"), a state agency physician, reviewed the record and stated, "Based on the [medical evidence record ("MER")] in the file, [Plaintiff] does not meet a listing and the severity of her condition, would not rule out all types of work. A fully favorable decision cannot be made with MER in the file. Without the MER from Dr. Riber, we cannot fully assess her condition, [symptoms], or credibility. Therefore, the claim has insufficient evidence to make a determination as of the [date last insured ("DLI")]." Tr. at 179.

Also on August 11, 2014, Kevin King, Ph.D. ("Dr. King"), a state agency psychologist reviewed the record and stated, "Without the MER from Post Trauma Resources, we cannot fully assess her condition, [symptoms], or credibility. Therefore, the claim has insufficient evidence to make a determination as of the DLI." Tr. at 180.

On October 13, 2014, Dale Van Slooten, M.D. ("Dr. Van Slooten"), a state agency physician, reconsidered the record and noted there was "INSUFFICIENT EVIDENCE." Tr. at 192.

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On October 14, 2014, Timothy Laskis, Ph.D. ("Dr. Laskis"), a state agency psychologist, reconsidered the record and stated, "Without the MER from Post Trauma Resources, we cannot fully assess her condition, [symptoms] or credibility. Therefore, the claim has insufficient evidence to make a determination as of the DLI." Tr. at 193.

On March 30, 2015, Plaintiff presented to Dr. Marion with recurrent back and knee discomfort. Tr. at 783-92. Dr. Marion found chronic stable conditions, assessed degenerative disc disease ("DDD"), and prescribed Meperidine. Tr. at 786.

On December 16, 2015, Plaintiff presented to Dr. Marion with ongoing back and knee discomfort. Tr. at 776-78. Dr. Marion assessed DDD and low back, knee, and neck pain due to a prior motor vehicle accident and prescribed medications. Id .

On February 26, 2016, Plaintiff presented to Amit Singh, D.O. ("Dr. Singh"), at the Palmetto Health Spine Center, "for complaints of new onset right-sided neck and shoulder pain." Tr. at 793-95. Plaintiff reported a history of chronic pain, but presented because she had a new onset of pain over the prior two months. Tr. at 793. Dr. Singh found TTP of the cervical spine, right paraspinal and trapezius, and rhomboids. Tr. at 794. Plaintiff had pain with extension and right rotation of the cervical spine. Id . Dr. Singh

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diagnosed cervicalgia and myalgia, referred Plaintiff to physical therapy and behavioral health, and prescribed Gabapentin. Tr. at 795.

On April 11, 2016, Dr. Singh administered right trapezius and levator trigger point injections. Tr. at 796. Dr. Singh suggested alternative treatment options, such as massage therapy, and noted Plaintiff would return as needed. Id .

On August 24, 2016, Plaintiff presented to Dr. Marion with ongoing knee discomfort and a recurrent back problem. Tr. at 843-46. Dr. Marion noted there was a sense of instability in the left knee and orthopedic follow up was requested. Id . Dr. Marion found "some mild generalized tenderness" with effusion and a ballotable patellar in the left knee. Id . Dr. Marion assessed knee effusion and referred Plaintiff to physical therapy. Id .

On September 1, 2016, Plaintiff presented to Robert Dasilva, M.D. ("Dr. Dasilva"), at Midlands Orthopaedics and Neurosurgery, with complaints of knee pain. Tr. at 837-42, 865-68. Plaintiff reported her knee pain was dull, occasionally sharp, nonradiating, activity related, and occurred at home. Tr. at 837-38. Dr. Dasilva found Plaintiff had an antalgic gait and positive crepitation and pain over the medial and lateral joints, but good ROM with pain upon flexion and extension. Id . Dr. Dasilva noted mild knee arthritis, assessed knee pain, ordered an x-ray, and prescribed Voltaren. Id .

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On September 23, 2016, Plaintiff presented to LMC due to a motor vehicle accident that injured her neck and back when she was rear-ended. Tr. at 816-35. The attending physician found Plaintiff was diffusely achy and sore, but she had normal mood and affect. Tr. at 818-19. He assessed multiple contusions and prescribed Hydromorphone. Id .

On September 28, 2016, Plaintiff presented to Dr. Marion with complaints of back and left knee pain after a motor vehicle accident. Tr. at 847-50, 899-903. Plaintiff reported she was rear-ended and drove herself to the hospital. Id . Dr. Marion found TTP to paraspinal, mid-cervical, medial trapezius, left knee, paraspinal and mid-spinal areas, and a decrease in lateral motions. Tr. at 849. Dr. Marion assessed neck, back, and left knee pain and prescribed medication. Id .

On September 29, 2016, Plaintiff presented to Dr. Dasilva for follow up after her accident. Tr. at 863-65. Dr. Dasilva noted Plaintiff was being treated for mild arthritis in both knees and assessed knee pain. Id .

On October 11, 2016, Dr. Marion opined Plaintiff had ongoing painful symptoms and limitation of mobility in multiple areas, including her back and knees, supported by diagnoses of DDD of the lumbosacral spine and knee pain with cruciate ligament tears. Tr. at 800. Dr. Marion also opined Plaintiff's activities of daily living ("ADLs") were affected and she was unable to perform prolonged standing, sitting, driving, walking, or running. Id . Dr.

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Marion concluded Plaintiff was totally disabled due to her injuries and the findings were permanent. Id .

On October 20, 2016, Plaintiff presented to Dr. Marion "for follow up of injuries sustained in a motor vehicle accident." Tr. at 851-54. Dr. Marion found TTP in Plaintiff's back and knee areas. Tr. at 853. Dr. Marion assessed bilateral knee, back, and neck pain with headache and prescribed medications. Id .

Plaintiff attended physical therapy due to the accident in September 2016 from October 3, 2016, through February 8, 2017. Tr. at 133-74, 870-98. The attending physical therapist noted Plaintiff had completed 15 sessions, as authorized by her insurance, she made progress in ROM and functional mobility, had reached maximum rehabilitation potential with continued moderate pain, and discharged Plaintiff from therapy. Tr. at 147.

C. The Administrative Proceedings

1. The Administrative Hearing

a. Plaintiff's Testimony

At the hearing on October 14, 2016, Plaintiff testified she lived in a house with her dog. Tr. at 89, 102. She stated she was 5'2", 201.7 lbs, and last worked August 26, 2005, for the Lexington County Sheriff's Department as a patrol deputy. Tr. at 90. She described the position as a first responder to calls made to dispatch, proactively assisting citizens, arresting, transporting,

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helping carry things, changing tires, and carrying people taller and heavier than herself. Tr. at 90-91. She said she stopped working there because of her knee and back and had the same position in Orangeburg County prior to working for Lexington County. Tr. at 91. Plaintiff testified that prior to working for Orangeburg County, she worked for McDonalds as a closing manager, unloading the truck of boxes up to 50 lbs, balancing the safe, counting the tills, operating the store, managing the crew, and handling customer issues. Id . She said she did not have hiring power, but she could recommend for hiring and firing and could discipline and suspend. Tr. at 92. She testified that after working at McDonalds, she worked as a personal telephone banker at Wachovia in a sedentary position handling accounts, transferring funds, opening new accounts, helping customers balance their books and manage their accounts, finding lost checks, and referring new products. Tr. at 91-93.

Plaintiff testified she had three surgeries on her left knee, the last on February 6, 2006, and one on her right knee in about 1998. Tr. at 93. She stated she experienced constant problems with her knees failing because they would give out and were in constant pain, with swelling down into her toes. Tr. at 93-94. She said she used canes, braces, and a wheelchair depending on how far she would be going and what she would be doing. She said she used the braces and cane for distance walking and stability issues and the

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wheelchair for great distances. Tr. at 94. She described problems with her back and said she is receiving physical therapy from her head to knees after her car accident on September 23, 2016. Tr. at 94-95. She testified she had other physical therapy, including two years outpatient therapy for her knee that ended in 2006, for her back after 2006, and another car accident in 2013. Tr. at 96. Plaintiff said she needed to stand because she was not comfortable at all and said she needed to stand after 15 to 20 minutes of sitting or vice versa, so long as she had something she could lean on or have hold her up. Tr. at 96-97. She stated she was taking Dilantin since her accident and Demerol for pain management twice a day on average. Tr. at 98. She said she suffered side effects of grogginess, dizziness, and sleepiness from her medication. Tr. at 98-99. She said she also took the generic version of Flexeril, daily medication for her arthritis in her knees and back, and 800 mg of ibuprofen. Tr. at 99. She said before the car accident she had trigger shoulder issues and tightness in her neck and pain that caused bad migraine-type headaches that required her to be in a dark room with no sound and no medications helped. Tr. at 99-100. She testified having a tremendous amount of constant pain in her knees, as well as her back from the neck down to her buttocks. Tr. at 100. She said most of the time she did not have clothes on at home because she had been a "naturalist in nature" since she was a child and whether she dressed was dependent on her pain level. Tr. at 101-102. She said when she

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would be medicated, she would not take a bath due to the sleepiness side effect, so she went days without bathing and slept the majority of the time. Tr. at 102. She said she had a cleaning lady tend to her house, and previously her family and friends helped with vacuuming, laundry, and cooking. Tr. at 102-103. She said she gave up cooking because her medications caused memory problems. Tr. at 103.

She indicated trying to accept her situation and depression through prayer, but noted completely cutting off her friends and coworkers for years. Tr. at 104-105. She denied taking any medication for depression or receiving treatment aside from talking with her father, who is a pastor, and her mom. Tr. at 104.

In response to her attorney's questions, Plaintiff stated she experienced migraines since 2005 and had sinus headaches. Tr. at 105. She indicated she did not want to be "doped up" on medications that would interfere with her daily activities like letting her dog out, so she tried to deal with the headaches the best she could. Tr. at 106. She said she had migraine headaches intermittently, sometimes multiple times in a week, and other times would not have one for two weeks. Id . She said during a migraine, she tried to remain still, sometimes for 12 hours, and that hearing her heartbeat caused her head to feel like it would explode. Tr. at 106-107. She said a mild headache would let up after two hours of lying down. Tr. at 107. She testified

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her knees swell multiple times a week, requiring elevation and ice, and sometime heat for the pain. Tr. at 107-108. She acknowledged driving aggravated the swelling. Tr. at 108. She described difficulty picking things off the floor. Tr. at 109. She estimated being able to pick up 20 to 30 lbs, but she would run the chance of throwing her back out. Id . She denied being able to pick up her dog, and said she fed the dog pound-cans of food rather than bagged food that required her father's help to move. Tr. at 110. She said prior to her last car accident, she would have a fairly good day three or four times a week that allowed her to get out of bed and go into her living room, but she would not leave the house. Tr. at 112. She described bad days as being bed-bound and taking medication every four hours and using heating pads. Tr. at 112-13. Plaintiff described stigma attached to having mental issues, particularly having been a police officer. Tr. at 113. She described being angry, volatile, suicidal, and in denial. Id . She stated she took Cymblata and then Lyrica, and in 2007 or 2008, attacked her sister by biting her mouth because she had flicked food at her. Tr. at 113.

b. Vocational Expert's Testimony

Vocational Expert ("VE") Joel D. Leonard reviewed the record and testified at the hearing. Tr. at 118-28. The VE categorized Plaintiff's PRW as (1) a deputy sheriff as medium, skilled, with specific vocational preparation ("SVP") of 5, Dictionary of Occupational Titles (" DOT ") No . 377.263.010, but

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very heavy as performed; (2) a closing manager as a food service manager as light, skilled, with SVP of 5, DOT No . 185.137-010, but medium as performed; and (3) a customer service banker as a customer service clerk as sedentary, skilled, with SVP of 6, DOT No . 249.262-010. Tr. at 118-19.

The ALJ described a hypothetical individual of Plaintiff's vocational profile who could lift no more than 10 pounds at a time, occasionally lift/carry articles, for example, docket files, ledgers, or small tools; the ability to sit for six hours in an eight-hour shift, the ability to stand and/or walk for two hours in an eight-hour shift, provided that she can alternate between standing and sitting every 30 minutes; frequently reach overhead with the right upper extremity; occasionally climb stairs or ramps; never climb ladders, ropes, or scaffolds; frequently balance, occasionally stoop, kneel, crouch, and crawl; occasionally be exposed to unprotected heights and moving machinery; and limited to simple, routine tasks. Tr. at 119-20. The VE testified the hypothetical individual could not perform Plaintiff's PRW. Tr. at 120. The ALJ asked whether there were any other jobs in the region or national economy the hypothetical person could perform. Id . The VE identified the following representative positions of sedentary, unskilled work with SVP of 2: (1) graders, sorters, and inspectors, DOT No . 669.687-014; (2) process assemblers, DOT No . 739.687-066; and (3) surveillance monitor, DOT No .

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379.367-010, with 60,000, 75,190, and 81,000 positions available in the national economy. Tr. at 120-21.

The ALJ described a second hypothetical individual that modified the first hypothetical with the additional limitation that the person would be off task for 20 percent of the day in addition to regularly-scheduled breaks. The VE testified there would be no employment available. Tr. at 121.

In response to questioning by Plaintiff's attorney, the VE testified that if the individual in the first hypothetical were unable to kneel, it would not affect the availability of the identified jobs. Tr. at 121-22. However, the VE testified that the need to elevate legs above the head for at least an hour of the day would eliminate the jobs. Tr. at 122. The VE testified the need to change positions every 15 minutes instead of 30 minutes would eliminate the jobs, as would sustained absences of at least twice a month. Tr. at 122-23.

2. The ALJ's Findings

In his decision dated November 22, 2016, the ALJ made the following findings of fact and conclusions of law:

1. The claimant last met the insured status requirements of the Social Security Act on December 31, 2010.
2. The claimant has not engaged in substantial gainful activity during the period from her alleged onset date of August 27, 2005 through her date last insured of December 31, 2010 (20 CFR 404.1571 et seq .).
3. Through the date last insured, the claimant had the following severe impairments: spine disorder, bilateral knee pain status

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post reconstructive surgery, obesity, depression and anxiety disorder (20 CFR 404.1520(c)).
4. Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled 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).
5. After careful consideration of the entire record, I find that, through the date last insured, the claimant had the residual functional capacity to perform a less than the full range of sedentary work as defined in 20 CR 404.1567(a) except the claimant was able to understand, remember and carry out simple routine tasks. The claimant could occasionally lift, carry, push or pull no more than 10 pounds at a time and occasionally lift/carry articles, for example, docket files, ledgers and small tools. The claimant could sit 6-hours alternating to standing for 30 minutes after every 30 minutes of sitting; stand 2 hours; and/or walk 2 hours. The claimant could frequently balance and perform overhead reaching with the right upper extremity; occasionally sto[o]p, kneel, crouch, crawl or climb stairs/ramps; and should never climb ladders, rope[]s or scaffolds. The claimant could occasionally be exposed to unprotected heights and moving mechanical parts.
6. Through the date last insured, the claimant was unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on February 7, 1979 and was 31 years old, which is defined as a younger individual age 18-44, on the last date insured (20 CFR 404.1563).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Through the date last insured, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 CFR 404.1569, 404.1569(a)).

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11. The claimant was not been under a disability, as defined in the Social Security Act, at any time from August 27, 2005, the alleged onset date, through December 31, 2010, the date last insured (20 CFR 404.1520(g)).

Tr. at 59-74.

II. Discussion

Plaintiff alleges the Commissioner erred for the following reasons:

1) the ALJ's RFC assessment is internally inconsistent;

2) the ALJ erred in relying on the VE's testimony to support the existence of jobs;

3) the ALJ did not properly assess medical source opinions of record; and

4) the ALJ did not adequately consider Plaintiff's subjective symptoms.

The Commissioner counters that substantial evidence supports the ALJ's findings and 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:

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

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can be expected to last for a continuous period of not less than 12 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 (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)

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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 the Commissioner can find claimant disabled or not disabled at any step, the Commissioner may make a determination and not go on to the next step).

A claimant is not disabled within the meaning of the Act if she can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. § 404.1520(a), (b), (f); 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 national economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that

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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 [s]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 (4th Cir. 1971); see Pyles v . Bowen , 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v . Schweiker , 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. Richardson , 402 U.S. at 390. "Substantial evidence" is "such relevant

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evidence as a reasonable mind might accept as adequate to support a conclusion." Biestek v . Berryhil , 139 S.Ct. 1148, 1154 (2019) (citations omitted); Johnson v . Barnhart , 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek , 438 F.2d at 1157-58; see also Thomas v . Celebrezze , 331 F.2d 541, 543 (4th Cir. 1964). 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

1. Discrepancies Within RFC Assessment

Plaintiff argues the ALJ's RFC assessment is internally inconsistent in that it both limits her to standing and/or walking for two hours during the workday and provides for her to stand for four hours during the workday. [ECF No. 17 at 21]. The Commissioner maintains the ALJ's RFC assessment is internally consistent because the ALJ provided Plaintiff an opportunity to alternate to standing after sitting for 30 minutes, but did not require she do so. [ECF No. 18 at 15].

A claimant's RFC represents the most she can still do despite her limitations. 20 C.F.R. § 404.1545(a). It must be based on all the relevant

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evidence in the case record and should account for all of the claimant's medically-determinable impairments. Id . The RFC assessment must include a narrative discussion describing how all the relevant evidence in the case record supports each conclusion and must cite "specific medical facts (e.g., laboratory findings) and non-medical evidence (e.g., daily activities, observations)." SSR 96-8p, 1996 WL 374184 at *7 (1996). The ALJ must determine the claimant's ability to perform work-related physical and mental abilities on a regular and continuing basis. Id . at *2. He must explain how any material inconsistencies or ambiguities in the record were resolved. Id . at *7. "[R]emand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review." Mascio , 780 F.3d at 636, citing Cichocki v . Astrue , 729 F.3d 172, 177 (2d Cir. 2013).

The ALJ stated the following in his decision regarding Plaintiff's RFC assessment:

[I] find that, through the date last insured, the claimant had the residual functional capacity to perform less than the full range of sedentary work as defined in 20 CFR 404.1567(a) except the claimant was able to understand, remember, and carry out simple routine tasks. The claimant could occasionally lift, carry, push or pull no more than 10 pounds at a time and occasionally lift/carry articles, for example, docket files, ledgers and small tools. The claimant could sit 6-hours alternating to standing for

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30 minutes after every 30 minutes of sitting; stand 2 hours; and/or walk 2 hours . . . .

Tr. at 61.

The court considered an analogous RFC in Hemming v . Colvin , No. 1:16-93-PMD, 2016 WL 5899018 (D.S.C. Oct. 11, 2016). The ALJ had assessed an RFC finding the plaintiff "could sit for six hours in an eight-hour workday; could stand and walk for at least two hours in an eight-hour workday; and required the ability to alternate between sitting and standing every 30 minutes throughout the workday." Hemming , 2016 WL 11297855, at *20 (D.S.C. Sept. 6, 2016). The Court explained the following:

Plaintiff's sole objection concerns the ALJ's finding about the maximum number of hours she can stand during the day. First, the ALJ determined she could stand for a maximum of two hours a day. Second, the ALJ found that she was capable of working at a job where she alternated thirty minutes of sitting and standing over the course of an eight-hour workday . . . According to Plaintiff, the thirty minute sit/stand rotation finding, applied to an eight-hour workday, equates to a finding that Plaintiff is capable of standing for four hours a day. Due to the apparent inconsistency of that finding with the two-hour standing maximum, Plaintiff argues a remand is necessary in order for the ALJ to eliminate that inconsistency. The Court agrees.

Hemming , 2016 WL 5899018, at *2. The court further explained that "[residual functional capacity] is not the least an individual can do despite his or her limitations, but the most." Id . (quoting SSR 96-8p). It interpreted the ALJ's finding that the plaintiff "[could] stand and walk for at least two hours as placing a two hour ceiling on her capacity to stand and walk" and found

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the "two-hour standing determination [could not] be reconciled with the ALJ's determination that [the plaintiff] could alternate sitting and standing every thirty minutes during an eight-hour workday." Id .

Similar to the RFC in Hemming , the RFC in the instant case specified Plaintiff could sit for a maximum of six hours, "stand 2 hours; and/or walk 2 hours," while also providing Plaintiff could stand "for 30 minutes after every 30 minutes of sitting." Compare Tr. at 61, with Hemming , 2016 WL 5899018, at *2. The second part of the RFC is incongruent with the first in that the ALJ has specified Plaintiff could stand for a maximum of two hours, but has also included a provision for standing a maximum of four hours during an eight-hour workday.

The ALJ has further complicated the RFC by indicating Plaintiff could "stand 2 hours; and/or walk 2 hours." The undersigned is unable to determine whether the ALJ intends that Plaintiff could perform a combination of standing and walking for two hours during an eight-hour workday or could stand for a maximum of two hours and walk for a maximum of two hours during an eight-hour workday. As the ALJ has also indicated Plaintiff could stand "for 30 minutes after every 30 minutes of sitting," alternating this course over an eight-hour workday would not permit any time for walking.

Furthermore, pursuant to 20 C.F.R. § 404.1567(a), "[j]obs are sedentary if walking and standing are required occasionally and other sedentary

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criteria are met. "'Occasionally' means occurring from very little up to one-third of the time, and would generally total no more than about 2 hours of an 8-hour workday." SSR 96-9p. "Sitting would generally total about 6 hours of an 8-hour workday" for a job to be classified as being performed at the sedentary exertional level." Therefore, the ALJ's indication in his RFC assessment that Plaintiff could stand for up to four hours during an eight-hour workday is inconsistent with his indication that she had the RFC "to perform less than the full range of sedentary work as defined in 20 CFR 404.1567(a)." (Tr. at 61).

In this case, "inadequacies in the ALJ's analysis frustrate meaningful review." Mascio , 780 F.3d at 636. Therefore, the undersigned recommends the court find that substantial evidence does not support the ALJ's RFC assessment.

2. VE Testimony

Plaintiff argues the ALJ erred in relying on the VE's testimony to support the existence of jobs in the economy. [ECF No. 17 at 16-17]. The Commissioner argues that substantial evidence supports the ALJ's finding at step five. [ECF No. 18 at 13, 16].

At step five of the sequential evaluation process, the Commissioner bears the burden of showing that the economy contains a significant number of jobs that the claimant can perform. Walls , 296 F.3d at 290. ALJs obtain

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testimony from VEs to meet this burden. Walker v . Bowen , 889 F.2d 47, 50 (4th Cir. 1989) (citation omitted).

a. Comparison of Hypothetical Question and RFC Assessment

Plaintiff maintains the ALJ assessed a different RFC in his decision than he included in his hypothetical question to the VE. [ECF No. 17 at 17-20]. The Commissioner argues Plaintiff is interpreting the ALJ's RFC finding too narrowly and that both the hypothetical question and the RFC assessment provided an ability to alternate between sitting and standing every 30 minutes. [ECF No. 18 at 13].

For the VE's opinion to be relevant, "it must be based upon a consideration of all other evidence in the record . . . and it must be in response to proper hypothetical questions which fairly set out all of claimant's impairments." Johnson , 434 F.3d at 659 (quoting Walker , 889 F.2d at 50); see also English v . Shalala , 10 F.3d 1080, 1085 (4th Cir. 1993). ALJs have discretion in framing hypothetical questions, but the limitations included in the hypothetical questions must be supported by the record. See Swaim v . Califano , 599 F.2d 1309, 1312 (4th Cir. 1979). A VE's testimony cannot constitute substantial evidence in support of the Commissioner's decision if the hypothesis fails to conform to the facts. See id .

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Pertinent to Plaintiff's argument, the ALJ asked the VE during the hearing to consider the following hypothetical individual:

an individual with the same age, education, and relevant past work as that of the Claimant, and who has the following residual functional capacity—the ability to lift no more than 10 pounds at a time, with occasional lifting and carrying articles, for example, docket files, ledgers, or small tools; the ability to sit for six hours in an eight hour shift, the ability to stand and/or walk for two hours in an eight-hour shift, provided that she can alternate between standing and sitting every 30 minutes . . . .

Tr. at 119.

The following provision of the RFC assessment is relevant to Plaintiff's argument:

the ability to perform less than the full range of sedentary work as defined in 20 CFR 404.1567(a) . . . could occasionally lift, carry push or pull no more than 10 pounds at a time and occasionally lift/carry articles, for example, docket files, ledgers and small tools . . . could sit 6-hours alternating to stand for 30 minutes after every 30 minutes of sitting; stand 2 hours; and/or walk 2 hours . . . .

Tr. at 61. "[T]he ability to stand and/or walk for two hours in an eight-hour shift, provided that she can alternate between standing and sitting every 30 minutes" appears to permit Plaintiff to shift from sitting to standing or standing to sitting every 30 minutes if she so desires, but does not seem to require she do so. This scenario suggests Plaintiff could alternate between sitting and standing as often as every 30 minutes, not to exceed two hours of standing during the workday. The provision in the RFC assessment that

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Plaintiff "could sit 6-hours alternating to stand for 30 minutes after every 30 minutes of sitting" requires Plaintiff alternate between sitting and standing " every 30 minutes," effectively directing she stand for four hours during an eight-hour workday. Tr. at 61.

Because the hypothetical question seems to contemplate a longer period of sitting than the RFC assessment, it is unclear whether the jobs the VE identified could be performed with the restrictions indicated in the RFC assessment. Therefore, substantial evidence does not support the ALJ's reliance on the jobs identified by the VE in response to the hypothetical question presented during the hearing. See Swaim , 599 F.2d at 1312.

b. Conflict Between DOT and VE Testimony

Plaintiff argues the ALJ did not resolve conflicts between the VE's testimony and the DOT . [ECF No. 18 at 22]. The Commissioner maintains the ALJ asked the VE about conflicts between his testimony and the DOT and accepted the VE's response that his testimony was consistent with the DOT . [ECF No. 18 at 16].

In recognizing that opinions from VEs sometimes conflict with the information contained in the DOT , the SSA promulgated SSR 00-4p to explain how these conflicts should be resolved. The "purpose" of SSR 00-4p "is to require the ALJ (not the vocational expert) to '[i]dentify and obtain a reasonable explanation' for conflicts between the vocational expert's

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testimony and the Dictionary , and to '[e]xplain in the determination or decision how any conflict that has been identified was resolved.'" Pearson , 810 F.3d at 208, citing SSR 00-4p (emphasis in original). Pursuant to SSR 00-4p, "[f]irst, the ALJ must '[a]sk the [vocational expert] . . . if the evidence he or she has provided conflicts with the information provided in the [ Dictionary ]'; and second, '[i]f the [vocational expert]'s . . . evidence appears to conflict with the [ Dictionary ],' the ALJ must 'obtain a reasonable explanation for the apparent conflict. '" Id . at 208, citing SSR 00-4p. "SSR 00-4p directs the ALJ to 'resolve the conflict by determining if the explanation given by the [expert] is reasonable'" and "to 'explain the resolution of the conflict irrespective of how the conflict was identified .'" Id . at 208, citing SSR 00-4p (emphasis in original). Thus, "[t]he ALJ independently must identify conflicts between the expert's testimony and the Dictionary ." Id . at 209. Furthermore, "an ALJ has not fully developed the record if it contains an unresolved conflict between the VE's testimony and the DOT " and "an ALJ errs if he ignores an apparent conflict on the basis that the VE testified that no conflict existed." Henderson v . Colvin , 643 F. App'x 273, 277 (4th Cir. 2016), citing Pearson , 810 F.3d at 210.

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The VE identified and the ALJ cited in his decision jobs as a grader/sorter/inspector, an assembler, and a surveillance monitor. Tr. at 73, 121. The DOT includes the following in the descriptions of all three jobs:

STRENGTH: Sedentary Work - Exerting up to 10 pounds of force occasionally (Occasionally: activity or condition exists up to 1/3 of the time) and/or a negligible amount of force frequently (Frequently: activity or condition exists from 1/3 to 2/3 of the time) to lift, carry, push, pull, or otherwise move objects, including the human body. Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met.

669.687-014. DOWEL INSPECTOR, DOT (4th ed., revised 1991), 1991 WL 686074; 739.687-066. COMPACT ASSEMBLER, DOT (4th ed., revised 1991), 1991 WL 680189; 379.367-010. SURVEILLANCE-SYSTEM MONITOR, DOT (4th ed., revised 1991), 1991 WL 673244.

The VE testified that his testimony did not conflict with the DOT , except with respect to Plaintiff's work history. Tr. at 121. He did not address any conflict between the option to alternate between sitting and standing and the job descriptions in the DOT . This court has previously found no apparent conflict between the DOT and VE testimony where VEs identified jobs in response to hypothetical questions that included provisions to alternate between sitting and standing. See Duren v . Colvin , No. 6:13-3142-RBH, 2015 WL 1268163, at *19 (D.S.C. Mar. 19, 2015) (citing Zblewski v . Astrue , 302 F. App'x 488, 494 (7th Cir. 2008) (holding that VE's testimony was not in

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apparent conflict with the DOT as the DOT did not address sit/stand options, and thus ALJ did not err in failing to inquire into such). The court concluded that no conflict arose because the DOT is silent as to a sit-stand option. Id . (citing Wait v . Colvin , No. 1:13-1363-TMC, 2014 WL 2979797, at *4 (D.S.C. Jun. 27, 2014) ("[T]here is no conflict between VE testimony and the DOT where the DOT is silent as to the sit/stand option.")).

Although there is no apparent conflict between the VE's testimony and the DOT with respect to a general provision for alternating between sitting and standing, there appears to be a conflict between the provision for alternating sitting and standing the ALJ included in his RFC assessment and the DOT 's job descriptions. If Plaintiff were expected to be "alternating to stand for 30 minutes after every 30 minutes of sitting" (Tr. at 73), she would exceed the occasional walking and standing in the definition of sedentary work within each of the three identified job description. See 669.687-014. DOWEL INSPECTOR, DOT (4th ed., revised 1991), 1991 WL 686074; 739.687-066. COMPACT ASSEMBLER, DOT (4th ed., revised 1991), 1991 WL 680189; 379.367-010. SURVEILLANCE-SYSTEM MONITOR, DOT (4th ed., revised 1991), 1991 WL 673244. In the absence of any effort on the part

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of the ALJ to resolve this conflict, the undersigned recommends the court find the ALJ did not comply with the provisions of SSR 00-4p.

3. Additional Allegations of Error

In addition to the allegations of error set forth above, Plaintiff argues the ALJ erred in evaluating the medical opinions and in considering her subjective statements. The undersigned declines to address these allegations of error in light of the recommendation to remand on other grounds.

III. Conclusion and Recommendation

The court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported as a matter of fact and law. Based on the foregoing, the court cannot determine that the Commissioner's decision is supported by substantial evidence. Therefore, the undersigned recommends, pursuant to the power of the court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in Social Security actions under sentence four of 42 U.S.C. § 405(g), that this matter be reversed and remanded for further administrative proceedings.

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IT IS SO RECOMMENDED.

July 23, 2019
Columbia, South Carolina

/s/
Shiva V. Hodges
United States Magistrate Judge

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

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

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