South Carolina Cases June 30, 2020: Rogers v. Saul

Case Description

REPORT AND RECOMMENDATION

This is an action brought pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. Section 405(g), to obtain judicial review of a "final decision" of the Commissioner of Social Security, denying Plaintiff's claim for disability insurance benefits (DIB). The only issues before the Court are whether the findings of fact are supported by substantial evidence and whether proper legal standards have been applied.

A. Procedural History

Plaintiff filed an application for DIB and SSI on June 29, 2015, alleging inability to work since May 4, 2015. (Tr. 15). Her claims were denied initially and upon reconsideration. Thereafter, Plaintiff filed a request for a hearing. A hearing was held on December 5, 2017, at which time Plaintiff and a vocational expert(VE) testified. (Tr. 15). The Administrative Law Judge (ALJ) issued an unfavorable decision on April 16, 2018, finding that Plaintiff was not disabled within the meaning of the Act. (Tr. 22). Plaintiff filed a request for review of the ALJ's decision, which the Appeals Council denied on February 8, 2019. (Tr. 1-3). Plaintiff filed this action on March 25, 2019. (ECF No. 1).

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B. Plaintiff's Background and Medical History

Plaintiff was born on May 4, 1965, and was fifty years old at the time of the alleged onset date. (Tr. 21). Plaintiff had at least a high school education and had past relevant work experience as a motor vehicle assembler. (Tr. 21). Plaintiff alleges disability initially due to a back injury. (Tr. 66).

In April 2014, Plaintiff hit another vehicle head-on and did not go to the emergency room but went to Dr. Mitchell. (Tr. 403). Plaintiff ambulated with slightly forward flexed posture and slow, deliberate gait. (Tr. 403). Plaintiff was referred for physical therapy. (Tr. 406).

2015

In May 2015, Plaintiff reported to SSA that her back pain/injury limited her mobility, activity, and gait. (Tr. 203).

On May 1, 2015, Plaintiff was seen by Dr. Mitchell of Carolina Orthopaedic and Neurosurgical Associates for knee pain. (Tr. 474). Pain level was six. Plaintiff had full range of motion of knee. Plaintiff received an injection. Plaintiff received a parking handicap sticker. (Tr. 476). On May 6, limitations were continue light duty per Dr. DiNicola. (Tr. 473).

In June 2015, Dr. DiNicola, M.D. of Orthopaedic Associates limited Plaintiff to no lifting greater than 50 pounds and no repetitive bending and twisting and returned Plaintiff to light duty as of June 2, 2015. (Tr. 468).

On June 23, 2015, Physical Rehabilitation Group completed a Functional Capacity Evaluation using BTE Technologies Evaluation system. (Tr. 521). Plaintiff reported her symptoms limit participation in work activities, leisure activities, and activities of daily living. (Tr. 524). Plaintiff was thought to provide maximum safe effort with very good consistency and good reliability

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in the test findings. It was noted that it was unclear what her prior job duties were. "She does demonstrate the ability to stand for extended periods of time though she has difficulty with stooping, squatting, [and] kneeling." (Tr. 524). Plaintiff was unable to complete kneeling-standing-kneeling positional tolerance test due to difficulty kneeling and inability to perform kneel-to-stand transfer without moderate assistance. (Tr. 524). Plaintiff's performance in weighted activities placed her in the medium-heavy workload category. (Tr. 524). Plaintiff demonstrated the ability to sit for forty minutes, stand for 100 minutes, and intermittently stand, sit, and walk for forty minutes. Plaintiff demonstrated the ability to lift 30 pounds from waist to shoulder, 50 pounds from floor to waist, 40 pounds from floor to shoulder on an occasional basis, and 30 pound crate lift and carry 40 feet. (Tr. 525). Grips and pulls were expected results of 100%. (Tr. 526). Plaintiff had normal grip strength. (Tr. 528). Plaintiff reported pain medication provided moderate relief from pain. (Tr. 535). Plaintiff reported it was painful to take care of herself and she was slow and careful. Plaintiff reported pain prevents her from lifting heavy weights but she can manage light to medium weights if conveniently positioned. Plaintiff reported pain prevents her from walking more than .25 mile. (Tr. 535). Plaintiff reported she can sit in her favorite chair as long as she likes. Plaintiff can stand as long as she wants but it increases pain. (Tr. 536). Plaintiff reported pain prevents her from participating in more energetic activities like sports and dancing. (Tr. 536). Plaintiff reported pain prevents her from performing more physically stressful activities like lifting and vacuuming.

On July 10, 2015, Plaintiff was seen by Dr. DiNicola. (Tr. 464, 537). "At her last visit, we discussed permanent restrictions for her, but she had not had a recent functional capacity evaluation. Since her last visit, she did have a repeat functional capacity evaluation to determine any permanent restrictions. She is here today to discuss and review results for return to work restrictions. Overall,

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her back pain has improved since undergoing radiofrequency ablation, but she is still having some difficulties." (Tr. 464). Pain level was four. Upon exam, Plaintiff had pain with lumbar extension/flexion. Plaintiff had tenderness over left lower lumbar facet joint lines and left PSIS region. Plaintiff had 5/5 strength. Plaintiff had mildly positive facet joint tenderness on the left greater than right reproducing left-sided back pain. Plaintiff had mildly positive FABER on the left. Plaintiff had pain in left shoulder rotation. January 2014 MRI showed multilevel degenerative disc changes most pronounced at L5-S1 level where disc bulge present and in combination with facet arthropathy and ligamentum flavum hypertrophy causes bilateral moderate to severe foraminal stenosis. MRI also showed marked facet arthropathy changes at L4-5 and less changes at L3-4. Plaintiff had mild neural foraminal stenosis at L4-5. A February 2015 MRI showed no significant changes from the 2014 MRI. (Tr. 466). Permanent restrictions of no lifting over 30 pounds and no repetitive bending and twisting were for any future occupations. (Tr. 467).

On August 1, 2015, Plaintiff was seen by Dr. DiNicola. R 469). After ablation, Plaintiff's back pain was overall much improved. "She is not taking any pain medication at this point in time. She is inquiring about return to work status at this point in time." (Tr. 469). Pain level was zero. Despite this pain level, exam was reportedly same as prior visit of pain with lumbar extension/flexion. (Tr. 471). "At this point in time, we do feel like she can return to work with no lifting over 50 pounds and no repetitive bending and twisting activities." Plaintiff was encouraged to continue home exercise and "will see if we can get her back in with BMW." (Tr. 472). "Upon review of FCE on 6/23/15, it has been determined that patient will have permanent work restrictions of no lifting 30lbs or greater and no repetitive bending or twisting motions. This applies to her current work position, and any future position the patient may hold." (Tr. 520).

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On October 13, 2015, Dr. Nabors, a state agency reviewing consultant opined an RFC of light, occasionally climb ramps/stairs, never climb ladders/ropes/scaffolds, unlimited balancing, occasionally stoop/kneel/crouch/crawl, and avoid concentrated exposure to hazards. (Tr. 70-72). On March 1, 2016, Dr. Anderson, a state agency reviewing consultant, affirmed this assessment. (Tr. 62).

On November 10, 2015, Plaintiff was seen by Dr. DiNicola. (Tr. 515). Plaintiff reported increasing left-sided low back pain and increasing left shoulder pain. Plaintiff "has been taking diclofenac with some benefit. She has a very difficult time standing and walking for longer periods of time." (Tr. 515). Pain level was four. Exam was the same as July. (Tr. 517). Plaintiff had normal gait. Plan was injections, future repeat ablation, aquatic therapy, handicap placard due to difficult time ambulating long distances, trial of Tramadol, and continue diclofenac. (Tr. 518).

On November 13, 2015, Plaintiff completed a mobility questionnaire. (Tr. 210). When Plaintiff stands for longer than ten minutes, her pain starts as a dull throbbing pain in lower back, then radiates down her left side into her left knee. Sitting for long periods makes it very uncomfortable with resulting stiffness. Ice packs and half of a relaxant or pain pill dulls it. (Tr. 210). Plaintiff reported side effects of drowsiness. Plaintiff reported cooking and washing dishes for a few minutes at a time because of increase in pain. Plaintiff is able to bathe and dress, but it takes longer. Plaintiff grocery shops, but not too much, as long as she has a cart to lean on for support. (Tr. 210). Plaintiff can walk less than 1/4 of a mile. (Tr. 211). Plaintiff indicated she needed and used a cane, then stated she did not currently have a cane. (Tr. 211). "Since I don't own one, I would need one when I walk or stand for long periods of time." (Tr. 211). Plaintiff reported she would need it for balance and pain. Plaintiff had reported not being able to lift 20 pounds repeatedly. Plaintiff reported

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difficulty putting on shoes and sweeping/mopping. (Tr. 211).

On November 23, 2015, Plaintiff received left L4-S1 injection. (Tr. 514).

2016

On January 5, 2016, Plaintiff was examined by consulting examiner Dr. Junker, M.D. (Tr. 548). Plaintiff conveyed her medical history and subjective symptoms. (Tr. 548-49). Upon exam, Plaintiff weighed 355 pounds. (Tr. 550). Plaintiff had normal station with antalgic gait favoring her left knee. Plaintiff did not use an assistive device and was able to slowly get up and down from chair and on and off table and lie down under her own power. Plaintiff did need some help in sitting up from supine. Plaintiff was considered to be able to read, drive, and handle her own business. (Tr. 550). Plaintiff had some puffiness around her ankles and trace pretibial edema, but her swelling was not pitting at her ankles. Plaintiff had normal range of motion of cervical spine and no tenderness there. Plaintiff had mild decrease in range of motion of lumbar spine with some mild tenderness. Shoulder exam was normal, had no tenderness, and normal range of motion. Plaintiff had 5/5 strength. (Tr. 550). Plaintiff's ankle swelling was not due to joints but more in the soft tissues. (Tr. 551). Plaintiff had no tenderness to palpation or motion of hip or ankle. Plaintiff had some decreased range of motion of knee due to soft tissue barriers. Plaintiff's left knee was warm to palpation and had tenderness. FABER testing of hip reproduced back pain but not hip pain. Straight leg raises produced low back pain but not radicular pain. "She was a bit wobbly but able to do a tandem walk. She did heel and toe walks with occasionally having to reach out and hold on." Plaintiff had 5/5 strength in all extremities with no atrophy. There was no reflex reaction in left knee. (Tr. 551). "I think she does have significant limitation to use of her back certainly aggravated by her obesity." "I think she has severe limitation to use of the left knee, again significantly aggravated by her weight."

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Plaintiff had "obesity, which is significant and contributes to her musculoskeletal problems." (Tr. 551).

On March 9, 2016, Plaintiff was seen by Dr. Mitchell. (Tr. 288). Plaintiff continued to have left knee pain on a daily basis, "but she has been responding very well to cortisone relief upwards of 8-10 months. Her last injection was in May of last year." (Tr. 288). Plaintiff understood she was a surgical candidate but was not interested. Plaintiff was interested in bracing and weight loss. (Tr. 288). Plaintiff's pain level was 8. Upon exam, Plaintiff had normal gait and was obese. (Tr. 290). Plaintiff had tenderness in the medial joint line with a little bit of varus mild malformation. Intact range of motion with some discomfort, no crepitus, and good vascular exam of the lower extremity. "She does walk with slight antalgic on that left side." Imaging showed significant primary osteoarthritis of both knees left greater than right. (Tr. 290). Plaintiff received another injection. Plaintiff needed to be fitted for a medial unloader brace to give some relief and stability since Plaintiff was planning to wait awhile for a knee replacement. Plaintiff was referred to bariatric surgeon. (Tr. 290).

On April 13, 2016, Plaintiff was seen by Dr. DiNicola. (Tr. 278). "She is continued on diclofenac once or twice as needed for pain. She does occasionally use tramadol for her more severe pain. She has continued to receive some benefit from her previous lumbar facet joint injection, however, has noted some increase in pain recently." Plaintiff did not want to schedule a repeat injection at that time. Plaintiff reported her lumbar ablation lasted only two months. Plaintiff reported her left knee injection only lasted three weeks. (Tr. 278). Pain level was 8. Upon exam, gait was normal. (Tr. 280). Plaintiff had pain with lumbar extension/flexion. Plaintiff had tenderness over left lower lumbar facet joint lines and left PSIS region. Plaintiff had 5/5 strength. Plaintiff had

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mildly positive facet joint tenderness on the left greater than right reproducing left-sided back pain. Plaintiff had mildly positive FABER on the left. Plaintiff had pain in left shoulder rotation. (Tr. 280). Plaintiff was to do aquatic therapy and continue tramadol and diclofenac as needed. (Tr. 281).

In July 2016, Plaintiff was prescribed aquatic therapy. (Tr. 251).

On July 6, 2016, Plaintiff was seen by Dr. DiNicola. (Tr. 274). Plaintiff had been taking tramadol as needed with only minimal improvement. Plaintiff takes diclofenac as needed with only minimal benefit. Plaintiff had short-term benefit from ablation and injections. (Tr. 274). Pain level was 6. Upon exam, Plaintiff had normal gait. Plaintiff had pain with lumbar extension/flexion. Plaintiff had tenderness over left lower lumbar facet joint lines and left PSIS region. Plaintiff had 5/5 strength. Plaintiff had mildly positive facet joint tenderness on the left greater than right reproducing left-sided back pain. Plaintiff had mildly positive FABER on the left. Plaintiff had pain in left shoulder rotation. (Tr. 276). Butrans patch was started. (Tr. 277).

On August 3, 2016, Plaintiff was seen by PA Brooks of Orthopaedic Associates. (Tr. 254). Plaintiff had concerns with her Butrans patch. Plaintiff reported minimal improvement and was not yet at the higher dose patch. Plaintiff continued to take tramadol as needed. Plaintiff's pain level was four. Upon exam, Plaintiff had normal gait. (Tr. 256). Plaintiff had pain with lumbar extension/flexion. Plaintiff had tenderness over left lower lumbar facet joint lines and left PSIS region. Plaintiff had 5/5 strength. Plaintiff had mildly positive facet joint tenderness on the left greater than right reproducing left-sided back pain. Plaintiff had mildly positive FABER on the left. Plaintiff had pain in left shoulder rotation. (Tr. 256). Assessment was left-sided low back pain secondary to lumbar spondylosis, lumbar degenerative disc disease, and left shoulder impingement. (Tr. 256-57). Plaintiff was to continue titrating up on the Butrans. (Tr. 257).

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On August 31, 2016, Plaintiff was seen by Dr. DiNicola. (Tr. 266). Plaintiff reported good functional improvement with Butrans patch and denied side effects. "She is overall doing better and has not noticed the need for tramadol as before for her breakthrough pain." (Tr. 266). Upon exam, Plaintiff had normal gait. Plaintiff had same exam as prior August visit. (Tr. 268). Plan was to refill Butrans 10mcg and tramadol was not needed to refill that day but on an as needed basis. (Tr. 269).

On September 9, 2016, Plaintiff was seen by Dr. Gentry of Mary Black Family Medicine. (Tr. 300). Plaintiff inquired about Topamax and a colonoscopy. (Tr. 303). Plaintiff reported tolerating medications well. Upon exam, Plaintiff had normal gait and station. Plaintiff was given refills for diclofenac for osteoarthritis, furosemide for edema, and Topamax for severely obese BMI. (Tr. 305).

On October 26, 2016, Plaintiff was seen by Dr. DiNicola. (Tr. 262). Plaintiff reported good functional improvement with Butrans but relief only lasted the first 3-4 days. Plaintiff had previously failed injections and ablation. (Tr. 262). Pain level was four. Upon exam, Plaintiff had normal gait. Plaintiff's exam was the same as August. (Tr. 264). Plan was to increase Butrans to 15mcg, refill tramadol, and continue home exercise program. (Tr. 265).

On November 3, 2016, Plaintiff was seen by Dr. Schwartz of gastroenterology. Upon exam, Plaintiff ambulated normally. (Tr. 320).

On December 28, 2016, Plaintiff was seen by PA Brooks. (Tr. 258). Plaintiff reported good functional improvement with pain medications and denied any problems or side effects. "She is overall doing well." (Tr. 258). Pain level was three. Upon exam, Plaintiff had normal gait. (Tr. 260). Plaintiff had pain with lumbar extension/flexion. Plaintiff had tenderness over left lower lumbar facet joint lines and left PSIS region. Plaintiff had 5/5 strength. Plaintiff had mildly positive facet joint tenderness on the left greater than right reproducing left-sided back pain. Plaintiff had

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mildly positive FABER on the left. Plaintiff had pain in left shoulder rotation. (Tr. 260). Butran at 15 mcg was refilled. Drug screen was appropriate and negative for as needed tramadol. (Tr. 261).

2017

On January 4, 2017, Plaintiff was see by Dr. Gentry. (Tr. 297). Plaintiff acknowledged her weight. Plaintiff stated she had been exercising three days a week and was tolerating prescribed medications. (Tr. 299). Upon exam, Plaintiff was ambulating normally and was morbidly obese. (Tr. 300). Plaintiff had normal gait and station. Assessment was abnormal weight gain. Topamax was refilled.

On February 2, 2017, Plaintiff was seen by Dr. DiNicola. (Tr. 562). Plaintiff reported good functional improvement with pain medications and denied any problems or side effects. Plaintiff wanted another left knee injection. (Tr. 562). Pain level was eight. Exam was same as previous regarding tenderness locations and pain. Plaintiff had normal gait. (Tr. 564).

On May 3, 2017, Plaintiff was seen by Dr. DiNicola. (Tr. 558). Plaintiff reported the Butrans only lasted the first 3-4 days and during that time, she did not require any tramadol, but the last three days, she may or may not use tramadol for her pain. "She is overall doing well, however, at this time and feels that her pain will improve once the weather warms back up, which it normally does." Plaintiff received good benefit from left knee injection. (Tr. 558). Pain level was three. (Tr. 558). Exam was same as previous. (Tr. 560). Plaintiff's medications were refilled. Drug screen was negative for Butrans and positive for tramadol. Follow up was in 3 months. (Tr. 561).

On July 6, 2017, Dr. DiNicola completed a questionnaire. (Tr. 572). Plaintiff could frequently lift/carry up to 10 pounds, occasionally lift/carry 11-20 pounds, and never lift/carry 21 to 50 pounds. (Tr. 570). Findings were L5-S1 degenerative disc disease and severe lumbar facet arthropathy. (Tr.

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570). Plaintiff could sit 8 hours in a work day and stand/walk 2 hours. Plaintiff needed a job that permitted shifting positions at will. (Tr. 570). Plaintiff required the use of a cane to ambulate "as needed." (Tr. 571). It was unknown how far Plaintiff could ambulate without cane or if Plaintiff could use free hand to carry small objects. "Yes" was indicated as to whether use of cane was medically necessary. (Tr. 571). Findings were severe left knee osteoarthritis. (Tr. 571). Plaintiff did not require elevation of legs. (Tr. 571). Plaintiff could continuously reach overhead and on all other hand usage, except only occasionally push/pull. (Tr. 571). Finding to support such limitation was low back pain. Plaintiff could never on all posturals, citing as support "see previous diagnosis." (Tr. 572). Absences circled was "about twice a month" with a written in question mark. (Tr. 572). Off task was unknown. Limitations were expected to last 12 months. (Tr. 572).

On August 16, 2017, Plaintiff was seen by Dr. DiNicola. (Tr. 574). Plaintiff reported increased low back pain. Plaintiff had been using 10mcg Butrans and tramadol for breakthrough pain. "She has reported good functional improvement with these medications. She states her knee and shoulder pain [are] doing okay." (Tr. 574). Pain level was four. Upon exam, gait was normal. Exam was the same tenderness locations and pain as prior visits. (Tr. 576). Butrans was increased to 20mcg. (Tr. 577).

On August 22, 2017, Plaintiff was seen by Dr. Gentry. (Tr. 584). Upon exam, Plaintiff ambulated normally. (Tr. 586).

In October 2017, Plaintiff reported taking Topamax for migraines, Furosemide for swelling, Butrans patch for pain, Tramadol for pain, and diclofenac for arthritis. (Tr. 246).

C. The Administrative Proceedings

1. The Administrative Hearing

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a. Plaintiff's Testimony

On December 5, 2017, Plaintiff appeared at a hearing before ALJ Morehead. Plaintiff was represented by an attorney. David Boater testified as a vocational expert. (Tr. 28).

Plaintiff testified she was disabled because of her back injury. Standing and doing anything for any length of time causes great back pain, then Plaintiff has to sit and take medication. Plaintiff has a patch for constant medication. (Tr. 32). Plaintiff's earnings in 2016 were from long-term disability insurance. For over a decade, Plaintiff's job on an assembly line involved constant bending and picking up of heavy auto parts like tailgates, then Plaintiff had a car accident in 2014. (Tr. 33). Plaintiff had medical insurance through April of 2017. Plaintiff supplements her Butrans patch with Tramadol. (Tr. 33). Plaintiff uses ice and rest. Plaintiff tries to keep her feet elevated because they sometimes swell. (Tr. 34). Plaintiff testified she could not do a parking lot attendant job because sitting still for too long she would have to get up and move for a few minutes. (Tr. 35). Plaintiff washes dishes sometimes and watches television mostly; Plaintiff's daughter does most chores. (Tr. 36). Plaintiff goes to church and does not shop. (Tr. 37). Surgery would not fix Plaintiff. Plaintiff had been getting injections, then it was decided to try the patch instead. (Tr. 37). The injections only eased the pain for a couple of weeks and she would have to go back every three months. (Tr. 38). Plaintiff reported physical therapy did not really help. When Plaintiff tried to go back to work, she could not keep up with the pace or with the bending/twisting movement. (Tr. 38-39). Plaintiff had to sit after the first two hours. Someone else had to do her job while she sat. (Tr. 39). Plaintiff has had injections in her left knee. Plaintiff testified her weight was 340 pounds. For swelling, Plaintiff used medication and elevated her feet. (Tr. 40-41). Plaintiff had seen Dr. DiNicola since 2014. Plaintiff testified the doctors that opined that she could go back to work after tests did not understand

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that she was hurting during the tests. (Tr. 41). Plaintiff stated retail would be too much standing and walking for her. (Tr. 42). Plaintiff's left shoulder hurts to lift. She has problems reaching up or over. (Tr. 42). Her left hip hurts and affects standing for a long time. Plaintiff could lift 10-15 pounds. (Tr. 43). Plaintiff testified she could not do repetitive bending at the waist. (Tr. 43-44). Plaintiff's attorney argued Plaintiff was sedentary

b. VE's Testimony

The VE characterized Plaintiff's past work. (Tr. 34). The VE opined that an individual of Plaintiff's age, education, and prior work experience—who was limited to light exertional level, occasional for all posturals, no ladders/ropes/scaffolds, no hazards, and sit/stand option alternating every hour — could not perform Plaintiff's past work. (Tr. 44). Other available work was folding machine tender, tester inspector, and printed products assembler. (Tr. 45). If limited to sedentary with prior limitations, PRW was unavailable. (Tr. 46). Machine folder tender and tester inspector required frequent reaching, but the DOT did not address overhead versus other reaching. (Tr. 46). Printed products assembler required constant reaching. (Tr. 47). If overhead reaching was a limitation, the DOT would be ambiguous. The VE testified a reaching limitation really would not have an adverse effect on doing these three particular jobs. (Tr. 47). Light jobs are typically reaching from shoulder level down not overhead. (Tr. 47). Some jobs are light per DOT but could actually be performed as if they were sedentary. (Tr. 48). Elevation of feet 1/8 of day would not be accommodated. The jobs required maintaining station meaning if she had to walk, she could not do the jobs. (Tr. 48-49).

c. The ALJ's Decision

In the decision of April 2018, the ALJ made the following findings of fact and conclusions

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of law:

1. The claimant meets the insured status requirements of the Social Security Act through March 31, 2032.

2. The claimant has not engaged in substantial gainful activity since May 4, 2015, the alleged onset date (20 CFR 404.1571 et seq .).

3. The claimant has the following severe impairments: degenerative disk disease, osteoarthritis, [and] obesity (20 CFR 404.1520(c)).

4. 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 and 404.1526).

5. 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 she requires the opportunity to alternate sitting and standing positions every hour; she can perform occasional postural activities, but can never climb ladders, ropes, or scaffolding or work around hazards.

6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).

7. The claimant was born on May 4, 1965 and was 50 years old, which is defined as an individual closely approaching advanced age, on the alleged disability onset date (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).

9. Transferability of job skills is not an issue in this case because the claimant's past relevant work is unskilled (20 CFR 404.1568).

10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)).

11. The claimant has not been under a disability, as defined in the Social Security Act, from May 4, 2015, through the date of this decision (20 CFR 404.1520(g)).

Plaintiff argues the ALJ failed to properly weigh opinion evidence by Dr. DiNicola and Dr.

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Junker. Defendant argues that the decision should be affirmed as the ALJ's findings are supported by substantial evidence.

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 the "need for efficiency" in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity ("SGA"); (2) whether he 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 him from doing SGA. 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).

A claimant is not disabled within the meaning of the Act if he 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 his inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).

Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the regional economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v . Barnhart , 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that he is unable to perform other work. Hall v . Harris , 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v . Yuckert ,

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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 id .; Richardson v . Perales , 402 U.S. 389, 390 (1971); Walls , 296 F.3d at 290 ( citing Hays v . Sullivan , 907 F.2d 1453, 1456 (4th Cir. 1990)).

The court's function is not to "try these cases de novo or resolve mere conflicts in the evidence." Vitek v . Finch , 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v . Bowen , 849 F.2d 846, 848 (4th Cir.1988) ( citing Smith v . Schweiker , 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson , 402 U.S. at 390, 401; Johnson v . Barnhart , 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek , 438 F.2d at 1157-58; see also Thomas v . Celebrezze , 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed "even should the court disagree with such decision." Blalock v . Richardson , 483 F.2d 773, 775 (4th Cir. 1972).

B. ANALYSIS

Opinions

Plaintiff argues the ALJ failed to properly weigh opinion evidence by Dr. DiNicola and Dr.

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Junker.

The Social Security Administration's regulations provide that "[r]egardless of its source, we will evaluate every medical opinion we receive." 20 C.F.R. § 404.1527(c). Generally, more weight is given to the opinions of examining physicians than nonexamining physicians. More weight is given to the opinions of treating physicians since they are more likely to be able to provide a detailed, longitudinal picture of a claimant's medical impairment. See 20 C.F.R. § 404.1527(c). The medical opinion of a treating physician is entitled to controlling weight, i.e., it must be adopted by the ALJ, if it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the record. See 20 C.F.R. § 404.1527(c)(2), SSR 96-2p, and Mastro v . Apfel , 270 F.3d 171, 178 (4th Cir. 2001). Thus, "[b]y negative implication, if a physician's opinion is not supported by clinical evidence, it should be accorded significantly less weight." Craig v . Chater , 76 F.3d 585,590 (4th Cir. 1996). Under such circumstances, "the ALJ holds the discretion to give less weight to the testimony of a treating physician in the face of persuasive contrary evidence." Mastro , 270 F.3d at 178 (citing Hunter v . Sullivan , 993 F.2d 31, 35 (4th Cir. 1992)).

In determining what weight to give the opinions of medical sources, the ALJ applies the factors in 20 C.F.R. § 404.1527(c)(1)-(6), which are: whether the source examined the claimant; whether the source has a treatment relationship with the claimant and, if so, the length of the relationship and the frequency of examination; the nature and extent of the treatment relationship; the supportability and consistency of the source's opinion with respect to all of the evidence of record; whether the source is a specialist; and, other relevant factors. See SSR 96-2p; Hines v . Barnhart , 453 Fd 559,563 (4th Cir. 2006).

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Dr. DiNicola

On July 6, 2017, Dr. DiNicola completed a questionnaire. (Tr. 572). Plaintiff could frequently lift/carry up to 10 pounds, occasionally lift/carry 11-20 pounds, and never lift/carry 21 to 50 pounds. (Tr. 570). Findings were L5-S1 degenerative disc disease and severe lumbar facet arthropathy. (Tr. 570). Plaintiff could sit 8 hours in a work day and stand/walk 2 hours. Plaintiff needed a job that permitted shifting positions at will. (Tr. 570). Plaintiff required the use of a cane to ambulate "as needed." (Tr. 571). It was unknown how far Plaintiff could ambulate without cane or if Plaintiff could use free hand to carry small objects. "Yes" was indicated as to whether use of cane was medically necessary. (Tr. 571). Findings were severe left knee osteoarthritis. (Tr. 571). Plaintiff did not require elevation of legs. (Tr. 571). Plaintiff could continuously reach overhead and all other hand usage, except only occasionally push/pull. (Tr. 571). Finding cited as support for such limitation was low back pain. Plaintiff could never on all posturals, citing as support "see previous diagnosis." (Tr. 572). Absences circled was "about twice a month" with a written in question mark. (Tr. 572). Off task was unknown.

The ALJ gave some weight to Dr. DiNicola's opinion:

I give some weight to Dr. DiNicola's medical source statement of July 2017, but find the degree of left knee and lumbar spine treatment and findings does not support an inability to perform postural activities at all, a need to limit standing and walking to two hours total, or a need for two absences per month (Exhibit 13F). The claimant has not been observed to use a cane, and her gait was normal after undergoing left knee injection in early 2016.

(Tr. 20).

The ALJ considers the evidence in the record as a whole when analyzing Plaintiff's claims, as does this court when reviewing the ALJ's decision. See Craig , 76 F.3d at 595. Earlier in the

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decision, the ALJ noted: "In particular, the claimant's physical examination findings repeatedly show full strength in all extremities and usually indicate a normal gait with no use of an assistive device (Exhibits 3F/3, 7, 11, 15, 19, 23; 12F/3, 7; 14F/3)." (Tr. 20). The ALJ further found: "I am not persuaded the evidence supports limitation to sedentary exertional activity, as I believe the postural limitations and sit/stand option set forth in the residual functional capacity finding above should accommodate the claimant's stable lumbar degenerative disk disease and knee pain that responds to injection therapy. The claimant's left shoulder has not prompted any specific treatment to date." (Tr. 20). The record belies Plaintiff's assertion that the ALJ failed to explain what is inconsistent in the record and Dr. DiNicola's opinions. While there were MRI findings in the record, exams of Dr. DiNicola did repeatedly show full strength, normal gait, and no assistive device. Plaintiff's argument that the ALJ was general and conclusory is without merit. The ALJ has been sufficiently specific to make clear for the subsequent reviewer the reason for the weight given to the opinion, in accordance with SSR 96-2p. A cane is only ever discussed in the questionnaire by Dr. DiNicola; in the contemporaneous treatment notes of Dr. DiNicola, there is no mention of a cane need or cane presentation, nor antalgic gait. "Generally, the more consistent an opinion is with the record as a whole, the more weight we will give to that opinion." 20 C.F.R. § 404.1527(c)(4). The ALJ cited to substantial evidence to support the weight given to Dr. DiNicola's opinions. While there were negative findings in some areas and positive findings in others, it is the ALJ's job to consider those and make determinations, and the ALJ did so here.

Dr. Junker

On January 5, 2016, Plaintiff was examined by consulting examiner Dr. Junker, M.D. (Tr. 548). Plaintiff conveyed her medical history and subjective symptoms. (Tr. 548-49). Upon exam,

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Plaintiff weighed 355 pounds. (Tr. 550). Plaintiff had normal station with antalgic gait favoring her left knee. Plaintiff did not use an assistive device and was able to slowly get up and down from chair and on and off table and lie down under her own power. Plaintiff did need some help in sitting up from supine. Plaintiff was considered to be able to read, drive, and handle her own business. (Tr. 550). Plaintiff had some puffiness around her ankles and trace pretibial edema, but her swelling was not pitting at her ankles. Plaintiff had normal range of motion of cervical spine and no tenderness there. Plaintiff had mild decrease in range of motion of lumbar spine with some mild tenderness. Shoulder exam was normal, no tenderness, and normal range of motion. Plaintiff had 5/5 strength. (Tr. 550). Plaintiff's ankle swelling was not due to joints but more in the soft tissues. (Tr. 551). Plaintiff had no tenderness to palpation of hip or ankle. Plaintiff had some decreased range of motion of knee due to soft tissue barriers. Plaintiff's left knee was warm to palpation and had tenderness. FABER testing of hip reproduced back pain but not hip pain. Straight leg raises produced low back pain but not radicular pain. "She was a bit wobbly but able to do a tandem walk. She did heel and toe walks with occasionally having to reach out and hold on." Plaintiff had 5/5 strength in all extremities with no atrophy. There was no reflex reaction in left knee. (Tr. 551). "I think she does have significant limitation to use of her back certainly aggravated by her obesity." "I think she has severe limitation to use of the left knee, again significantly aggravated by her weight." Plaintiff had "obesity, which is significant and contributes to her musculoskeletal problems." (Tr. 551).

The ALJ assigned some weight to Dr. Junker's examining opinion:

I give only some weight to the opinion of the consultative examiner Dr. Junker, because his description of the effects of the claimant's impairments is overly vague ("significant limitation to use of her back" and "severe limitation to use of the left knee") (Exhibit 10F/5). Dr. Junker examined the claimant before she had her left knee injection in March 2016, since which her gait has been normal. I give some

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weight to the functional capacity evaluations accepted by her treating sources, but find that at the light exertional level, the claimant should be accommodated by occasional postural activities and the ability to alternate sitting and standing every hour (Exhibits 7F/7, 12, 37; 8F/13-27).

(Tr. 20).

Plaintiff argues that if the ALJ considered Dr. Junker's opinions as vague, that the ALJ could have contacted him for an explanation. The record is evident that Dr. Junker did not provide any specific function by function limitations that could be translated into limitations in an RFC determination. An ALJ is only required to seek additional or clarifying information if information in the record, regardless if conflicting, is inadequate to determine whether Plaintiff is disabled. 20 C.F.R. § 404.1520b. Even if inconsistent evidence is presented, the ALJ has the discretion to make a determination based on the evidence in the record before him. Under § 404.1520b, the ALJ is only required to seek additional evidence or clarification if the ALJ cannot reach a conclusion about whether the claimant is disabled. Here, the ALJ did not have to recontact Dr. Junker or any other physician for additional information or clarification because the ALJ had sufficient information to determine the issue of disability in the record before him. The record was fully developed and sufficient for the ALJ to render a disability determination. "Ordinarily, development should not be undertaken for the purpose of determining whether a treating source's medical opinion should receive controlling weight if the case record is otherwise adequately developed." SSR 96-2p. The weight given to Dr. Junker's opinions by the ALJ is supported by substantial evidence.

It cannot be said here that the ALJ has not given good reason for the weight afforded to these particular opinions. See 20 CFR § 404.1527(d). The ALJ's decision to give such opinions such weights was based on "such relevant evidence as a reasonable mind might accept as adequate to

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support a conclusion." Richardson v . Perales , 402 U.S. 389, 401 (1971) (citation omitted). The ALJ complied with SSR 96-2p(rescinded for applications after March 27, 2017) in making clear to a subsequent reviewer the weight given and the reasons for that weight. Given the deferential standard of review, the court cannot say that the ALJ here did not provide citation to substantial evidence to support his findings on opinions. After a review of the ALJ's decision as discussed above and a review of the records relied on by the ALJ, the ALJ properly gave reasons for the weight given to opinions. The ALJ's findings are supported by substantial evidence and he conducted a proper analysis in accordance with the applicable, law, regulations, and policies.

This Court is charged with reviewing the case only to determine whether the findings of the Commissioner were based on substantial evidence. Richardson , 402 U.S. at 390. Even where the Plaintiff can produce conflicting evidence which might have resulted in a contrary decision, the Commissioner's findings must be affirmed if substantial evidence supported the decision. Blalock , 483 F.2d at 775. The Commissioner is charged with resolving conflicts in the evidence, and this Court cannot reverse that decision merely because the evidence would permit a different conclusion. Shively v . Heckler , 739 F.2d 987, 989 (4th Cir. 1984). As previously discussed, despite the Plaintiff's claims, she has failed to show that the Commissioner's decision was not based on substantial evidence. Based upon the foregoing, and 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 Sections 205(g) and 1631(c)(3) of the Social Security Act,

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42 U.S.C. Sections 405(g) and 1338(c)(3), it is, recommended that the Commissioner's decision be AFFIRMED.

s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge

June 30, 2020
Florence, South Carolina

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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).