South Carolina Cases April 22, 2021: Debra M. 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) and § 1383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her claim for Disability Insurance Benefits ("DIB"). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether he applied the proper legal standards. For the reasons that follow, the undersigned recommends the Commissioner's decision be reversed and remanded for further proceedings as set forth herein.

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I. Relevant Background

A. Procedural History

On February 28, 2017, Plaintiff filed an application for DIB in which she alleged her disability began on April 28, 2014. Tr. at 114, 181-84. Her application was denied initially and upon reconsideration. Tr. at 117-20, 125-28. On May 22, 2019, Plaintiff had a hearing before Administrative Law Judge ("ALJ") Gregory M. Wilson. Tr. at 38-84 (Hr'g Tr.). The ALJ issued an unfavorable decision on July 15, 2019, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 15-36. 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 1-6. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on July 23, 2020. [ECF No. 1].

B. Plaintiff's Background and Medical History

1. Background

Plaintiff was 53 years old at the time of the hearing. Tr. at 44. She completed high school. Id . Her past relevant work ("PRW") was as a house cleaner and a daycare worker. Tr. at 68-69. She alleges she has been unable to work since July 21, 2014. Tr. at 45.

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2. Medical History

On May 6, 2014, Plaintiff presented to Doctors Care with complaints of pain and stiffness to her left thumb and shoulder. Tr. at 607. She reported having slipped on water while working eight days prior and having visited the emergency room and undergone x-rays at the time. Id . She endorsed pain and stiffness. Id . Stephen Parks, M.D., noted tenderness and decreased range of motion ("ROM") in Plaintiff's left thumb and shoulder. Tr. at 608. He diagnosed finger sprain and left shoulder sprain, prescribed Tramadol, and referred Plaintiff to physical therapy. Id .

Plaintiff participated in physical therapy for her left thumb and shoulder at Progressive Physical Therapy from May 15 through June 20, 2014. Tr. at 803-45.

Plaintiff underwent magnetic resonance imaging ("MRI") of her left shoulder on June 17, 2014, that revealed fatty atrophy of the supraspinatus and infraspinatus muscles; moderate edema of the infraspinatus muscle that might be the sequelae of acute injury; complete supraspinatus and large full-thickness infraspinatus tendon tears with tendon retraction and retraction of the myotendinous junctions; a 20 mm fluid-filled retraction gap of the supraspinatus tendon with 25 mm of mesial retraction of the supraspinatus myotendinous junction; glenohumeral joint effusion; a large amount of

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subacromial-subdeltoid bursal fluid; and mild acute and moderate chronic acromioclavicular ("AC") arthropathy. Tr. at 609.

Plaintiff presented to orthopedic surgeon Paul Siffri, M.D. ("Dr. Siffri"), for evaluation of left shoulder pain on July 10, 2014. Tr. at 392-94. Dr. Siffri interpreted the MRI as showing a full thickness tear of the supraspinatus and infraspinatus with some early atrophy and retraction of the glenohumeral joint level. Tr. at 392. He noted no atrophy of the shoulder girdle, active forward elevation to 140 degrees, full passive forward elevation, diffuse weakness against supraspinatus and infraspinatus testing, lag sign, slightly weak subscapularis, mildly positive Speed's testing, and mild AC pain. Tr. at 392-93. He assessed shoulder pain and rotator cuff tear Tr. at 393. He explained to Plaintiff and her husband that the large tear "may even be considered a massive rotator cuff tear of the infra- and supraspinatus tendon with retraction." Id . He noted the atrophy and extent of retraction were of concern. Id . He prescribed Norco and scheduled rotator cuff repair surgery. Id .

On July 22, 2014, Dr. Siffri performed arthroscopic rotator cuff repair utilizing a margin convergence technique due to the large size of the rotator cuff tear, subacromial decompression, biceps tenotomy, and extensive debridement of degenerative labral tearing, rotator interval synovitis, and

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subacromial bursitis. Tr. at 385-87. He prescribed Oxycodone 5 mg for post-surgical pain and instructed Plaintiff to follow up in two weeks. Tr. at 395.

Plaintiff participated in physical therapy for her left shoulder at Greenville Proaxis Therapy from July 23, 2014, through January 23, 2015. Tr. at 279-380.

During a follow up visit with Dr. Siffri on August 7, 2014, Plaintiff continued to endorse left shoulder pain that she described as constant, aching, burning, dull, sharp, stabbing, and throbbing. Tr. at 397. Dr. Siffri observed a well-healing incision with no signs of infection and indicated Plaintiff's ROM was as expected for the post-operative period. Id . He refilled Oxycodone, removed her sutures, and instructed her to continue physical therapy. Tr. at 398.

Plaintiff returned to Dr. Siffri with continued left shoulder pain on September 11, 2014. Tr. at 399. Dr. Siffri administered a Kenalog injection to Plaintiff's left shoulder and instructed her to continue with physical therapy. Tr. at 400.

Plaintiff continued to report left shoulder pain and denied having returned to work on October 23, 2014. Tr. at 402. Dr. Siffri observed muscle spasming at Plaintiff's shoulder girdle. Tr. at 402-03. He stated Plaintiff was diffusely tender and guarded in her motion. Tr. at 403. He indicated Plaintiff demonstrated passive ROM of the shoulder to about 100 degrees after

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relaxing and weak cuff strength against resisted external rotation. Id . He prescribed Cyclobenzaprine, refilled Norco, and authorized Plaintiff to return to work on limited duty with no use of her left arm. Id .

On November 20, 2014, Plaintiff reported she was slowly making progress in physical therapy and had yet to return to work. Tr. at 404. Dr. Siffri observed active full elevation of Plaintiff's left shoulder to about 90 degrees and passive elevation to about 20 degrees. Tr. at 404-05. He noted weak cuff strength against resisted external rotation. Tr. at 405. He refilled Norco and Cyclobenzaprine and stated Plaintiff could perform work at waist-level only. Id .

Plaintiff endorsed continued left shoulder pain and discomfort on December 18, 2014. Tr. at 406. She indicated the workers' compensation insurer had declined to approve additional physical therapy. Id . On examination, Dr. Siffri recorded active forward elevation to about 100 degrees, passive forward elevation to about 140 degrees, weakened cuff strength against resisted external rotation, and 4/5 supraspinatus testing. Tr. at 407. He discontinued Norco, continued Cyclobenzaprine, and prescribed Ultram. Id .

Plaintiff presented to Robert Dameron, Jr., M.D. ("Dr. Dameron"), for an independent medical evaluation related to her workers' compensation claim on January 9, 2015. Tr. at 613-16. She endorsed problems with her left

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shoulder and upper extremity and discomfort in the posterior cervical region that radiated to the bilateral shoulders. Tr. at 614. She reported difficulty performing activities of daily living ("ADLs") such as combing her hair, lifting objects above shoulder level, stirring with a spoon, and handling objects of any weight with her left upper extremity ("LUE"). Id . Dr. Dameron noted full ROM in the right shoulder and cervical spine. Id . He stated Plaintiff reported minimal discomfort to palpation in the trapezius region on both sides. Tr. at 614-15. He recorded extremely limited active and passive ROM of the left shoulder, with abduction to 90 degrees, adduction to 10 degrees, forward flexion to 100 degrees, extension to 30 degrees, internal rotation to 45 degrees, and external rotation to 30 degrees. Tr. at 615. He noted a significant amount of atrophy of the deltoid musculature in the left shoulder with flattening of the posterior aspect of the deltoid configuration. Id . He observed extreme weakness in the entire LUE with weakness in all motions in the shoulder, weakness of the left elbow, and weakness of flexion, extension, pronation, and supination. Id . He found significantly impaired grip strength. Id .

Dr. Dameron assessed a 31% total permanent impairment to Plaintiff's left shoulder based on the American Medical Association Guides for the Determination of Permanent Impairment , Fifth Edition . Id . He also assessed a 30% impairment to Plaintiff's LUE based on overall extreme weakness in

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the LUE with weakness in the left shoulder and elbow and marked grip strength loss in the left hand. Id . Dr. Dameron considered Plaintiff incapable of returning to her preinjury employment status. Id . He did not consider Plaintiff to be a good candidate for additional surgery, but indicated she should follow up with Dr. Siffri to determine the course of future treatment. Tr. at 615-16.

On February 12, 2015, Plaintiff endorsed minimal improvement with work hardening. Tr. at 408. Dr. Siffri observed full ROM, but diffusely weak and painful cuff strength. Tr. at 409. He stated Plaintiff was neurovascularly intact. Id . He ordered an MRI to evaluate the integrity of her rotator cuff, assess for muscle atrophy or wasting, and determine whether she would be a candidate for reverse arthroplasty. Id . He refilled Ultram and Cyclobenzaprine. Id .

Plaintiff attended nine work hardening sessions at Progressive Physical Therapy between February 6 and 25, 2015. Tr. at 787-802. She was discharged early, after she dropped a box during a carrying exercise and developed increased pain in her cervical spine. Tr. at 787.

On February 25, 2015, x-rays of Plaintiff's right shoulder revealed no acute fracture. Tr. at 466. X-rays of her cervical spine showed spondylosis and straightening of cervical lordosis with muscle spasm. Tr. at 469.

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Plaintiff underwent an MRI of the left shoulder on March 3, 2015, that showed a large defect of nearly the entirety of the infraspinatus and the entirety of the supraspinatus with severe secondary muscular atrophy of both. Tr. at 617-18.

Plaintiff subsequently underwent an MRI of her cervical spine on March 10, 2015, that revealed disc bulges at C4-5 and C5-6, no cervical herniation, and mild bilateral cervical facet arthropathy. Tr. at 621.

Plaintiff returned to Dr. Siffri to discuss the MRI results on March 12, 2015. Tr. at 411. She reported continued pain. Id . Dr. Siffri noted Plaintiff had sustained a work hardening injury that caused increased neck pain. Id . He interpreted the MRI of Plaintiff's shoulder as showing massive tearing of the infraspinatus and supraspinatus with atrophy and retraction. Id . He indicated he had reviewed pictures from the arthroscopic surgery, which showed the tendon was retracted into the glenoid area at the time of the surgery. Id . He stated the attempted margin convergence and repair had obviously not healed. Id . On examination, he noted atrophy, active forward elevation to about 100 degrees, passive forward elevation to about 110 degrees, and diffuse weakness on cuff strength testing. Tr. at 412. He stated Plaintiff could not return to work at the time, refilled Ultram and Cyclobenzaprine, and referred her to a reverse arthroplasty specialist. Id .

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A discharge note from Greenville Proaxis Therapy dated April 1, 2015, indicates Plaintiff had consistent LUE pain that prevented her from returning to work with high fear avoidance and central sensitization. Tr. at 379.

Plaintiff presented to orthopedic surgeon Stefan Tolan, M.D. ("Dr. Tolan"), on April 15, 2015. Tr. at 415-16. She rated her pain as a nine on a 10-point severity scale and indicated it was not adequately controlled. Tr. at 415. She endorsed stiffness, persistent pain, and disability in her left shoulder. Id . She also complained of neck pain with numbness and tingling in her bilateral upper extremities, following an injury she sustained when attempting to lift a box in work hardening therapy. Id . Plaintiff's blood pressure was elevated at 178/115 mmHg. Tr. at 416. Dr. Tolan recorded active forward elevation of Plaintiff's left shoulder to 80 degrees, passive forward elevation to 90 degrees, and passive and active external rotation to 10 degrees. Id . He noted weakness to rotator cuff strength testing and tenderness to palpation ("TTP") along Plaintiff's cervical spine and trapezius. Id . He explained the MRI of Plaintiff's left shoulder showed grade II-III atrophy of the supraspinatus and grade IV atrophy of the infraspinatus with a massive retracted tear to the glenoid. Id . He assessed a failed massive rotator cuff repair with significant atrophy and adhesive capsulitis, but declined to recommend reverse shoulder arthroplasty, given Plaintiff's age.

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Id . He indicated he would like to improve Plaintiff's motion and would consider superior capsular reconstruction. Id . He administered a Kenalog injection, prescribed a Medrol Dosepak, and referred Plaintiff to a pain management physician for treatment of cervical pain. Id . He encouraged Plaintiff to taper off and discontinue use of nicotine. Id .

Plaintiff expressed a desire to hold off on additional surgical intervention on May 13, 2015. Tr. at 417. She complained of persistent neck pain and spasm in her lateral left neck that had been untreated. Id . She rated her pain as a nine. Id . Dr. Tolan noted left shoulder active forward elevation of 100 degrees, active abduction to 90 degrees, and buckling on supraspinatus isolation testing and infraspinatus strength testing. Tr. at 418. He observed limited lateral rotation and bending, paraspinal tenderness, and negative Spurling's sign in Plaintiff's neck. Id . He assessed shoulder pain, rotator cuff pain, and cervical spondylosis. Id . He administered a corticosteroid injection to Plaintiff's left shoulder and referred her for pain management treatment. Id .

Plaintiff presented to pain management physician Lee Ashley Mullinax, M.D. ("Dr. Mullinax"), to establish care on May 21, 2015. Tr. at 502-05. She reported a history of injury, failed left shoulder surgery, and subsequent injury to her neck while engaging in a work-conditioning program. Tr. at 502. She endorsed constant pain in her neck that radiated to

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her left shoulder and worsened upon lying flat, as well as left shoulder pain that was exacerbated by activities like cooking. Id . She indicated her pain prevented her from sleeping. Id . She rated her pain as a 10 without medication and a six to eight with medication. Id . Dr. Mullinax noted Plaintiff was "tearful and frustrated with uncontrolled pain." Tr. at 503. She observed limited ROM in Plaintiff's cervical spine and TTP that was worse at the midline at C3-4 with pain radiating to both shoulders. Id . She noted Plaintiff had tightening, aching pain with bilateral lateral rotation and negative Spurling's maneuver. Id . She recorded normal muscle strength in the right arm and 4+ grip strength in Plaintiff's left hand. Id . She assessed neck pain, bulging disc, chronic use of opiate drugs for therapeutic purposes, and cervical facet arthropathy. Id . She discontinued Tramadol 50 mg and prescribed Ultram ER 100 mg once a day, Oxycodone 5 mg three times a day, and Cymbalta 30 mg once a day. Id . She felt that Cymbalta would help with pain control and mood stability. Tr. at 504.

Plaintiff returned to Dr. Mullinax for treatment on June 18, 2015. Tr. at 499. She endorsed continued shoulder pain and dull, aching pain to the left side of her neck that appeared at the end of the day. Id . She endorsed some tightness and pain radiation, but indicated her medications were working well and she was feeling less anxious and more like her pain was under control. Id . She rated her pain as a seven. Id . Dr. Mullinax recorded full

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ROM, extension, flexion, and lateral rotation of Plaintiff's cervical spine. Tr. at 500. She noted tenderness over the left trapezius and rhomboid region. Id . She refilled Ultram, Oxycodone, and Cymbalta. Id . She felt that Plaintiff's left shoulder impairment was contributing to her neck pain, as the cervical MRI findings did not appear significant enough to explain her pain. Id .

Plaintiff presented to James Paul Behr, M.D. ("Dr. Behr"), as a new patient on June 24, 2015. Tr. at 647. She endorsed left shoulder pain and pain that radiated from her neck through her left shoulder. Id . She rated the pain as between a three and a nine and described it as constant, sharp, achy, and shooting. Id . She reported weakness, difficulty sleeping, increased anxiety, depression, irritability, and functional limitations. Id . Dr. Behr noted limited ROM of the left shoulder to abduction, flexion, and internal and external rotation. Tr. at 649. He recorded weakness to manual muscle testing throughout the LUE. Id . He stated Plaintiff's cervical ROM was limited by pain. Id . He noted questionably positive neural tension signs on the left and negative neural tension signs on the right. Id . He reviewed reports from MRIs of the left shoulder and cervical spine and assessed neck and shoulder pain. Tr. at 650. Dr. Behr stated it was "quite possible that some of the pain she is having is likely related to the cervical spine with disc bulges" and offered a C7-T1 interlaminar epidural steroid injection ("ESI") and physical therapy. Id . Plaintiff indicated she was not interested in additional physical

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therapy, as she had already been through so much for her shoulder. Id . Dr. Behr felt there was no treatment option other than medication for Plaintiff's left shoulder. Id . He indicated he could treat Plaintiff with pain medication or she could continue to follow up with Dr. Mullinax. Id .

Plaintiff followed up with Dr. Tolan on July 15, 2015, and complained of pain throughout the day and upon completion of ADLs. Tr. at 420. She denied numbness, tingling, and other radicular symptoms and rated her pain as a four. Id . Dr. Tolan noted atrophy of Plaintiff's left deltoid, significantly positive Hawkins/Neer impingement signs, active forward elevation to 80 degrees, external rotation to 15 degrees, pain throughout ROM, and no gross instability. Tr. at 421. He recommended Plaintiff undergo arthroscopy with superior capsular reconstruction to "try to buy her five to ten years before she may need a reverse shoulder arthroplasty." Id . Plaintiff indicated she would consider the surgery. Id . Dr. Tolan administered a Kenalog injection to Plaintiff's left shoulder. Id .

Plaintiff returned to Dr. Mullinax the same day. Tr. at 495. She endorsed neck and shoulder pain and decreased grip strength on the left. Id . Dr. Mullinax noted limited ROM with extension and lateral rotation of Plaintiff's cervical spine and tenderness mainly in the left trapezius and rhomboid region. Tr. at 497. She recorded 4/5 grip strength in the LUE. Id . She did not assess Plaintiff's shoulder, as Dr. Tolan continued to treat it. Id .

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Dr. Mullinax noted Plaintiff's neck pain was stable with medications and refilled Ultram, Oxycodone, and Cymbalta. Id .

On August 12, 2015, Plaintiff followed up with Dr. Tolan to further discuss surgery. Tr. at 423. She complained of recurrent pain and spondylosis throughout the day and during the night. Tr. at 427. Dr. Tolan observed left shoulder active elevation of nearly 90 degrees and positive drop arm and Buckley's signs on supraspinatus isolation testing. Tr. at 429. Plaintiff indicated she was not ready to proceed with additional surgery. Id . Dr. Tolan administered another injection to the right subacromial bursa of Plaintiff's left shoulder. Id .

On October 13, 2015, Plaintiff complained of severe pain in her left shoulder and the left side of her neck. Tr. at 510. She described the pain as a constant, chronic aching that interfered with sleep and ADLs and led to decreased strength in the left arm. Id . She denied side effects and indicated she was satisfied with the effectiveness of her medications. Id . She endorsed some numbness and tingling in her bilateral thumbs. Tr. at 511. Dr. Mullinax observed full ROM of Plaintiff's cervical spine, but noted pain in the left cervical paraspinal musculature of the upper neck upon lateral rotation. Id . She also recorded pain-to-palpation of Plaintiff's left trapezius and rhomboid. Id . She assessed decreased left grip, biceps, and triceps strength versus poor

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effort secondary to pain. Id . She prescribed Neurontin 300 mg twice a day for probable neuropathic pain in the upper extremities. Id .

Plaintiff rated her left shoulder pain as a five on November 9, 2015. Tr. at 441. Dr. Tolan administered a Kenalog injection to the left subacromial bursa of Plaintiff's left shoulder. Tr. at 448-49.

On December 2, 2015, Plaintiff presented to David Fulton, M.D. ("Dr. Fulton"), for an independent evaluation of shoulder pain in relation to her workers' compensation claim. Tr. at 457-59. She endorsed night sweats, weight loss, arm pain on exertion, cough, muscle aches, muscle weakness, arthralgias/joint pain, swelling in the extremities, restricted ROM, rash, weakness, numbness, tingling, and excessive bleeding on a review of systems. Tr. at 457. Dr. Fulton noted Plaintiff was 5'2" tall, weighed 195 pounds, and had a body mass index ("BMI") of 36. Tr. at 458. Plaintiff's blood pressure was elevated at 176/117 mmHg. Id . Dr. Fulton observed full motion of Plaintiff's fingers and wrists and full elbow motion without pain. Id . He noted some tenderness in the posterior trapezial region of the left shoulder. Id . He indicated Plaintiff had a supple cervical spine with good deltoid tone and strength, normal axillary nerve sensation bilaterally, and abduction to 100 degrees bilaterally. Id . He stated Plaintiff had weakness with external rotation of the left shoulder compared to the right, active forward flexion to 90 degrees on the left and 165 degrees on the right, near full passive motion,

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limited internal rotation due to pain, subscapularis functioning with push-off test, tenderness to touch of the AC joint, tenderness of the anterior glenoid joint and posterior shoulder, and full motion of the contralateral shoulder without pain. Id . Dr. Fulton did not believe Plaintiff's rotator cuff tear was repairable, but considered her a candidate for options that might improve her shoulder function and decrease her pain. Id . He did not recommend attempted repair or mesh graft, given Plaintiff's status as a smoker and the extremely atrophied and retracted muscles of her rotator cuff. Id . He considered Plaintiff a candidate for reverse total shoulder arthroplasty if she could wean herself from narcotic pain medication for at least a few months. Id . He stated if Plaintiff did not desire to discontinue narcotic medications and pursue reverse shoulder arthroplasty, he would consider her to be at maximum medical improvement with restrictions for no overhead work, no active reaching above shoulder height, a lifting limit of five pounds, and a pushing limit of eight pounds as to the left shoulder. Id .

Plaintiff complained of a significant increase in pain on February 3, 2016, and indicated she had run out of medication because car trouble had prevented her from following up on time. Tr. at 522. She described constant, aching left shoulder and neck pain that was helped, but not controlled by medication. Id . Dr. Mullinax noted poor strength in the LUE and pain over the facet line to the left at C3 through C7 and the left trapezius and

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rhomboid. Tr. at 523. She recorded tenderness over Plaintiff's left shoulder, at the cervical midline from C3 to C7, and with extension and rotation of the cervical spine. Id . She increased Tramadol ER to 200 mg. Tr. at 525.

Plaintiff returned to Dr. Dameron for a second independent medical evaluation on February 5, 2016. Tr. at 967-70. She endorsed worsened neck pain since her prior exam, right shoulder pain due to overuse, and ongoing left shoulder pain with decreased function. Tr. at 969. Dr. Dameron noted decreased ROM of the cervical spine, with flexion, extension, bilateral lateral bending, and bilateral rotation all limited to 20 degrees; normal deep tendon reflexes in the upper extremities; no definite neurological deficit in the upper extremities; weakness in the left shoulder, arm, and forearm; reduced left hand grip strength; and reduced ROM of the left shoulder, with flexion to 90 degrees, extension to 10 degrees, abduction to 75 degrees, adduction to 15 degrees, internal rotation to 55 degrees, and external rotation to 30 degrees. Id . He assessed a 36% impairment rating to Plaintiff's left shoulder, a 30% impairment rating to her LUE, and a 16% impairment rating to her spine. Tr. at 970.

Plaintiff continued to endorse poorly-controlled pain on April 5, 2016. Tr. at 533. She indicated the pain in her left arm and shoulder was worse than the pain in her neck. Id . She described increased neck pain upon turning her head to the left more than the right. Id . Dr. Mullinax noted 3/5

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grip strength on the left, TTP over the over the left cervical facet line and throughout the trapezius and rhomboids, and lateral rotation limited to less than five degrees. Tr. at 534. She scheduled Plaintiff for left facet steroid injections at C4-5 and C5-6. Tr. at 537.

Plaintiff underwent left-sided facet joint injections on July 11, 2016. Tr. at 547.

On July 19, 2016, Plaintiff rated her pain as a four. Tr. at 546. She continued to endorse severe neck pain, but reported the facet joint injections had reduced her pain by 20% and improved her ROM. Tr. at 547. She reported cough, headaches, and sleep disturbance. Id . She complained of sweating during the night, which was a known side effect of both Cymbalta and Tramadol. Id . Dr. Mullinax recorded pain over the left scapular region and on the left side at C3-4, C4-5, and C5-6 with left lateral rotation and extension. Tr. at 548. She assessed osteoarthritis of the cervical spine without myelopathy and chronic neck pain. Tr. at 550. She refilled Cymbalta, Oxycodone, Tramadol, and Gabapentin. Id .

Plaintiff described pain that radiated down her neck to her left thumb on December 22, 2016. Tr. at 567. She rated it as a four, but noted it would increase to a 10 with activity. Id . She endorsed tearfulness and depressive symptoms. Id . She indicated she felt as if her pain had caused depression and was willing to attend counseling. Id . Dr. Mullinax noted diffuse TTP that was

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worse in the left trapezius region, negative Spurling's maneuver, and C6 radicular symptoms and weakness throughout Plaintiff's LUE. Tr. at 569. She decreased Tramadol to 100 mg, increased Oxycodone to 10 mg three times a day, and increased Cymbalta to 60 mg once a day. Tr. at 573. She ordered a cervical ESI for diagnostic and therapeutic purposes. Id .

Dr. Mullinax administered an interlaminar cervical ESI on January 23, 2017. Tr. at 579-80.

On February 7, 2017, Plaintiff rated her pain as a three and reported having received 20-30% pain relief from the ESI. Tr. at 733. She indicated constant, but improved pain and decreased stiffness in her neck with continued left arm and shoulder pain and tingling in her fingers. Id . She complained her pain interfered with her sleep, ADLs, and ability to work. Id . She denied having seen the psychiatrist because his office did not accept her insurance. Id . Physician assistant Theresa Little ("PA Little"), observed good cervical ROM, limited left shoulder ROM, decreased left grip strength, and tingling in the left hand. Tr. at 735.

On March 2, 2017, Plaintiff endorsed neck and shoulder pain and depressive symptoms and indicated she continued to wait for a referral for psychiatric treatment. Tr. at 671. She rated her pain as a three and indicated she was receiving 10-20% pain relief. Id . She indicated her financial situation was causing increased stress and she felt as if she were having

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panic attacks. Id . She endorsed good and bad days and stated her medication made her pain tolerable, although it continued to interfere with sleep, ADLs, and her ability to work. Id . PA Little noted fair lumbar flexion, limited cervical ROM with complaints of pain, limited left shoulder ROM, and 4/5 left grip strength. Tr. at 673. She stated Plaintiff's pain radiated down her left arm. Id . She refilled Tramadol, Oxycodone, and Duloxetine. Tr. at 675.

Plaintiff presented to Lary Korn, D.O. ("Dr. Korn"), for a consultative orthopedic assessment on June 6, 2017. Tr. at 591-94. She endorsed pain in her neck, left shoulder, and left thumb. Tr. at 591. Dr. Korn noted Plaintiff was slightly anxious and severely morbidly obese. Tr. at 592. He recorded the following ROM of the cervical spine: flexion to 36 degrees; extension to 24 degrees; left lateral flexion to 22 degrees; right lateral flexion to 22 degrees; left lateral rotation to 28 degrees; and right lateral rotation to 22 degrees. Id . He noted lumbar ROM as follows: flexion to 46 net degrees; extension to 12 net degrees; left lateral flexion to 16 degrees; and right lateral flexion to 16 degrees. Tr at 593. He stated Waddell signs and seated straight-leg raising test were negative. Id . He indicated Plaintiff had normal curvature of the cervical spine, but increased paracervical muscle tone. Id . He recorded left shoulder abduction to 90 degrees, adduction to 18 degrees, flexion to 90 degrees, internal rotation to 68 degrees, and external rotation to 30 degrees. Id . He indicated the right shoulder demonstrated normal ROM. Id . He noted

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no crepitus to palpation of the left shoulder. Id . He stated Plaintiff demonstrated a lot of guarding to passive motion testing. Id . He indicated Plaintiff had objectively diminished rotator cuff muscle bulk on the left, as compared to the right, but stated it was not as obvious as it otherwise would be, given general soft tissue bulk due to obesity. Id . He recorded 1/5 strength resistance to resisted external rotation and 4/5 strength to resisted internal rotation. Id . He noted normal elbows, wrists, knees, ankles, tandem walk, heel-toe walk, squat, and gait. Id . He stated Plaintiff demonstrated low left grip strength due to the nonphysiologic quality of her effort. Id . He also indicated Plaintiff had inconsistent pinch effort. Id . He assessed fairly symmetrical muscle bulk in both hands. Id . He did not detect any sensory loss. Id . He found normal and symmetric reflexes. Id . Dr. Korn stated Plaintiff's left forearm was "a little bit smaller than the right at 10 cm below the olecranon process," but both upper arms were symmetrical. Tr. at 594. He diagnosed possible adhesive capsulitis of the left shoulder with stated history of complete and unrepairable tear of the rotator cuff tendon and likely cervical spondylosis. Id . He provided the following impression:

The examinee's demonstrations today were very much affected by subjective discomfort at times and perhaps other issues as well, There is, however, significant history and some physical findings related to the shoulder that were worthwhile. She does not appear to be able to do much at all with that left shoulder due to discomfort, weakness and limited range of motion. She would not be able to do anything overhead with it and is not going to be able

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to apply a lot of force to manipulations below shoulder level with the left arm which unfortunately is her dominant arm. C[ervical] spine motion appears to be significantly limited and I will presume that x-rays support the degree of motion loss demonstrated. This will affect her ability also to do things overhead for more than just a brief duration and will affect her safety in the workplace and driving because of the limited rotation.

Id .

On June 7, 2017, Plaintiff presented to James Ruffing, Psy.D. ("Dr. Ruffing"), for a consultative mental status exam. Tr. at 596-98. She reported feeling depressed, anxious, and overwhelmed and sleeping a lot. Tr. at 596. She stated she felt overwhelmed when she was around others. Id . She reported attempting household chores, but indicated she had to stop to rest. Id . She noted she could care for most of her personal needs, but sometimes required help in cleaning her hair and dressing due to shoulder and arm problems. Id . Dr. Ruffing observed Plaintiff became tearful and cried as the interview progressed. Tr. at 597. He stated Plaintiff demonstrated normal eye contact and speech and had a generally appropriate affect of normal range and intensity. Id . He noted Plaintiff endorsed feelings of anxiety and nervousness, and symptoms of depression that included crying spells, hypersomnia, low energy, low libido, and a 40- to 50-pound weight gain over the prior six months. Id . He stated Plaintiff was fully oriented with an adequate stream of consciousness; demonstrated linear, logical, relevant, and

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coherent thoughts; showed no evidence of psychosis or lack of reality contact; was able to attend and focus without disruption; demonstrated normal cognitive processing speed; recalled three objects immediately and following a five-minute delay with an interference task; spelled "world" correctly both forward and backward; and achieved a score of 30/30 on the Folstein Mini-Mental Status Exam. Id . His diagnostic impression was adjustment disorder with depression and anxious mood. Id . Dr. Ruffing considered Plaintiff capable of understanding and responding to the spoken word and managing concentration, persistence, and pace. Tr. at 598. He thought Plaintiff's limitations were more physically than psychologically related. Id . He felt Plaintiff could manage her own finances. Id .

On June 8, 2017, Plaintiff rated her pain as a four. Tr. at 691. She described neck pain that radiated to the left side and into the left shoulder, as well as chronic left shoulder pain associated with dysfunction and LUE weakness. Id . Dr. Mullinax noted pain with motion of the cervical spine, left lateral rotation, and extension; limited ROM of the left shoulder; severe pain with palpation throughout the left shoulder joint; and LUE weakness with grip and biceps and triceps movements. Tr. at 693. She continued medication management with Tramadol, Oxycodone, and Cymbalta and instructed Plaintiff to use Voltaren gel for left thumb joint pain. Tr. at 695.

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State agency psychological consultant Craig Horn, Ph.D., reviewed the record and assessed Plaintiff's mental impairments as non-severe on June 13, 2017. Tr. at 90-91.

On July 5, 2017, x-rays of Plaintiffs left shoulder revealed arthritis. Tr. at 601. Cervical x-rays showed a straight spine, no fracture, and no confirmed disc height loss. Tr. at 602.

Plaintiff rated her pain as a three and reported 30-40% pain relief from medications on August 9, 2017. Tr. at 715. She endorsed constant pain in her neck and shoulder that radiated down her left arm and into her fingers; increased with standing, sneezing, lifting, and exercising; and decreased with lying down and use of medications. Id . She indicated she had good and bad days. Id . She stated she had occasional numbness in her left thumb and swelling and occasional pain in her left ankle, due to having twisted it one month prior. Id . PA Little observed mild edema to Plaintiff's left ankle, good cervical ROM with complaint of pain, left shoulder ROM limited to 90 degrees, 4/5 grip on the left, and 5/5 grip on the right. Tr. at 717. She assessed cervical facet arthropathy, osteoarthritis of the cervical spine without myelopathy, and chronic neck pain and refilled Oxycodone and Tramadol. Tr. at 719.

On August 17, 2017, state agency medical consultant Dina Nabors, M.D. ("Dr. Nabors"), reviewed the record and assessed Plaintiff's physical

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residual functional capacity ("RFC") as follows: occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds; stand and/or walk for about six hours in an eight-hour workday; sit for about six hours in an eight-hour workday; frequently balance, stoop, kneel, and crouch; occasionally crawl; never climb ladders, ropes, or scaffolds; never reach overhead with the LUE; frequently reach to the front and laterally with the LUE; never handle with the LUE; and avoid concentrated exposure to hazards. Tr. at 92-95.

Plaintiff again reported 30-40% pain relief with medications on October 4, 2017. Tr. at 745. She described pain in her neck, left shoulder, and left thumb. Id . She indicated she was left-handed and use of her left arm increased her pain. Id . PA Little noted good cervical ROM, limited left shoulder ROM to about 90 degrees with complaints of pain, numbness in the left thumb, no edema, and steady gait. Tr. at 748. She assessed chronic pain syndrome, chronic neck pain, chronic left shoulder pain, osteoarthritis of the cervical spine without myelopathy, and cervical facet syndrome. Id . She refilled Duloxetine, Oxycodone, and Tramadol. Tr. at 749.

On October 23, 2017, state agency medical consultant Adrian Corlette, M.D. ("Dr. Corlette"), assessed the same physical RFC as Dr. Nabors. Compare Tr. at 92-95, with Tr. at 108-11.

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A second state agency psychological consultant, Silvie Ward, Ph.D., assessed Plaintiff's mental impairments as non-severe on October 24, 2017. Tr. at 105-06.

Plaintiff presented to psychiatrist Jeffrey Smith, M.D. ("Dr. Smith"), to establish treatment on November 29, 2017. Tr. at 757-59. She complained of poor energy, lack of motivation and interest, decreased concentration, crying spells, irritability, low frustration tolerance, alternating insomnia and hypersomnia, overeating with weight gain, and sad mood. Tr. at 757. Dr. Smith noted depressed mood and affect, goal-directed thought process, ruminating thought content, no suicidal ideation, and normal gait, dress, speech, hygiene, concentration, and memory. Tr. at 758. He assessed severe major depression, increased Cymbalta to 120 mg, and referred Plaintiff to a psychotherapist. Id .

Plaintiff presented to licensed professional counselor Julia Stokes ("Counselor Stokes") at Piedmont Psychiatric Services for an initial counseling session on December 14, 2017. Tr. at 761-62. She reported being easily overwhelmed, having to leave stores because she could not tolerate the noise and people around her. Tr. at 761. She said she would stay in bed and not see anyone on some days and would decline her son's invitation to visit because she did not want to be around others. Id . Counselor Stokes

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encouraged Plaintiff to give herself permission to leave stores or take naps, as needed and to redefine her identity, given her physical limitations. Id .

Plaintiff reported chronic pain and no change in her depressive symptoms on December 20, 2017. Tr. at 755. She endorsed poor mood, energy, motivation, interest, and concentration. Id . Dr. Smith noted depressed mood and affect, goal-directed thought process, ruminating thought content, no suicidal ideation, and normal gait, dress, speech, and hygiene. Id . He decreased Cymbalta to 60 mg and prescribed Bupropion XL 150 mg. Id .

Plaintiff followed up with Counselor Stokes on January 11, 2018. Tr. at 760. She endorsed recurring negative thoughts and reported she had been crying a lot and had not wanted to get out of bed over the prior three days. Id . Counselor Stokes encouraged Plaintiff to develop a routine, take her time, and focus on what she could do, as opposed to what she could not do. Id .

Plaintiff presented to orthopedic surgeon Lawrence Edwin Rudisill, Jr., M.D. ("Dr. Rudisill"), for evaluation of left thumb pain on July 31, 2018. Tr. at 775. She described increased pain at the base of her left thumb that caused difficulty pinching, pushing with her thumb, opening jars, and writing. Id . Dr. Rudisill noted tenderness about the base of Plaintiff's left thumb and pain with manipulation. Tr. at 777. He reviewed an x-ray of Plaintiff's left thumb that showed Eaton stage III basal joint arthritis. Id . He assessed basal

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joint arthritis of the left thumb and administered an injection of Xylocaine and Celestone to the left thumb. Id .

On November 13, 2018, Plaintiff complained of increased neck pain and tightness in her bilateral shoulders over the prior two weeks. Tr. at 877. She denied having fallen or increased her activity and thought the increased pain might be related to the weather. Id . She also noted decreased strength in her left arm. Id . PA Little observed limited ROM of the left shoulder, stiffness with cervical ROM, and 4/5 grip strength on the left. Tr. at 880. She refilled Oxycodone 5 mg and Tramadol 100 mg. Id .

Plaintiff complained of pain in her neck and shoulder that radiated through her left arm and hand on January 11, 2019. Tr. at 859. She rated her pain as a three during the exam, but indicated it would be an eight on a bad day. Id . Dr. Mullinax noted tenderness in the left trapezius, limited ROM of the cervical spine, tenderness in the left midline and paraspinal muscles of the cervical spine that extended to the C5 level, and decreased upper extremity strength. Tr. at 862. She assessed cervical radiculopathy, back pain, chronic pain syndrome, and chronic neck pain. Id . She refilled Oxycodone 5 mg and Tramadol 100 mg and ordered a new MRI of the cervical spine. Tr. at 863.

On January 15, 2019, Plaintiff presented to St. Francis Downtown Hospital with complaints of elevated blood pressure and chest pain that had

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begun two days prior. Tr. at 890-902. She indicated she had been out of her blood pressure medication for at least a month, as she lacked a primary care provider. Tr. at 891. She described squeezing chest pain that worsened upon exertion. Id . Cardiac enzyme testing was normal. Tr. at 899. Plaintiff demonstrated normal sinus rhythm on telemetry and an electrocardiogram ("EKG") was normal. Tr. at 892. Chest x-rays showed no acute cardiopulmonary abnormality. Tr. at 902. A left heart catheterization revealed left ventricular ejection fraction at 55-60% with luminal irregularities in the left anterior descending artery, left circumflex artery, and right coronary artery. Tr. at 894-95. Cardiologist Daniel R. Green, M.D. ("Dr. Green"), released Plaintiff the following day with prescriptions for Lisinopril, Atorvastatin, Metoprolol, Nitroglycerin, and aspirin. Tr. at 900.

Plaintiff underwent an MRI of the cervical spine on January 22, 2019, that revealed degenerative disc disease, disc bulges at the C4-5 and C5-6 levels that effaced the cerebrospinal fluid in the ventral thecal sac, and moderate bilateral neural foraminal narrowing at C5-6. Tr. at 903-04.

On February 8, 2019, Plaintiff reported her neck, left arm, and left shoulder pain had worsened overall, but had remained stable since her last visit. Tr. at 956. She rated her pain as a four during the visit, but indicated it increased to an eight on days when it was severe. Id . Dr. Mullinax recorded limited ROM of the cervical spine and left shoulder, limited grip strength on

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the left, and pain in the left occiput, trapezius, and throughout the shoulder and arm. Tr. at 959. She assessed a cervical disc bulge without myelopathy, cervical radiculopathy, osteoarthritis of the cervical spine with radiculopathy, chronic left shoulder pain, and chronic pain syndrome. Id . She recommended Plaintiff follow up with an orthopedist and consider a cervical ESI. Tr. at 960. She refilled Tramadol and Oxycodone. Id .

Plaintiff followed up with Dr. Green at Upstate Cardiology on February 22, 2019. Tr. at 907-13. She reported elevated blood pressure that was typically in the 140s/90s, as well as some chest pain. Tr. at 908. She noted she was tolerating the statin and her chest pain had improved since her hospitalization. Id . Dr. Green assessed essential hypertension, non-cardiac chest pain, and tobacco abuse and increased Metoprolol to 50 mg twice a day. Tr. at 910.

On February 27, 2019, Plaintiff complained of increased shoulder pain and dysfunction that interfered with her lifestyle and ADLs and caused pain during the night. Tr. at 928. Dr. Tolan recorded active forward elevation to 140 degrees and active internal rotation to her midline. Tr. at 931. He noted pain at extremes of ROM and buckling on supraspinatus isolation testing. Id . An x-ray of Plaintiff's left shoulder showed moderate rotator cuff tear arthropathy. Tr. at 932. Dr. Tolan assessed chronic left shoulder pain and administered a subacromial injection. Id .

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On April 8, 2019, Plaintiff rated her neck and shoulder pain as a three, noting it ranged from a two to a seven and was stable and controlled with her medication regimen. Tr. at 942. Dr. Mullinax observed Plaintiff to have full ROM of the cervical spine, tenderness throughout the cervical midline, facet line pain to palpation of the left trapezius and left periscapular region, and limited ROM of the left shoulder. Tr. at 945. She refilled Oxycodone and Tramadol. Tr. at 946.

On May 1, 2019, Robert Longstaffe, M.D., noted forward elevation to 85 degrees and external rotation to zero degrees. Tr. at 988. He stated he could passively externally rotate Plaintiff's left shoulder to five to 10 degrees with no significant external rotation lag sign. Id . He recorded 4/5 strength with weakness of testing of her subscapularis. Id . Dr. Tolan administered a large joint injection to the left subacromial bursa. Tr. at 989.

C. The Administrative Proceedings

1. The Administrative Hearing

a. Plaintiff's Testimony

At the hearing, Plaintiff testified she was left-handed. Tr. at 44. She said she lived with her husband, who worked to support their household. Tr. at 44, 45. She indicated she last worked at Hickory Tickory Tots Daycare on July 21, 2014. Tr. at 45. She denied having worked since that date or having

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filed a claim for unemployment benefits. Id . She stated she had received a workers' compensation settlement of $80,000 around November 2016. Id .

Plaintiff testified she was 5'2" or 5'3" tall and weighed 200 pounds. Tr. at 46. She indicated this was a normal weight since she had stopped working, but noted she had weighed around 160 pounds while working. Id . She said she felt that her weight gain had affected her emotions, but had not affected her physical abilities. Id . She stated she would love to return to work. Id . She indicated the company doctors had taken her out of work in July 2014, following an injury in April. Tr. at 47.

Plaintiff testified she had injured her left shoulder and hand when she fell at work. Id . She said she discovered a water leak upon presenting to work at 5:30 AM and had worked with another employee to clean up the water prior to sustaining a fall. Id .

Plaintiff stated she continued to have problems with her left hand. Id . She said she had undergone surgery to her left arm. Tr. at 48. She indicated her neck had been injured, but she had not undergone neck surgery. Id . She stated her most recent MRI had shown a bulging disc in her neck that was on a nerve. Id .

Plaintiff testified she could only engage in activities for about 10 to 15 minutes at a time before her arm would give out. Id . She said she was in constant pain. Id . She described pain in her shoulder and neck that traveled

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down her arm and into her hand. Tr. at 49. She stated her shoulder pain was worse. Id . She explained her pain would be between a three and four on a 10-point pain scale if she took her medicine and reclined, but would increase to a seven or eight if she tried to use her arm to complete tasks. Tr. at 50. She indicated her pain elevated to a seven or eight about six or seven times a day. Id . She said she would take medication, lie down to rest, and alternate between applying ice and heat when her pain increased. Id . She stated her doctors had restricted her lifting to five to 10 pounds. Id . She indicated her arm would give out when she tried to lift 10 pounds. Id . She denied being able to lift her left arm over her head, behind her back, or in front of her for extended periods. Tr. at 51. She stated she often held her left arm against her body or propped it up. Id .

Plaintiff testified she had consulted Dr. Tolan as to possible shoulder replacement, but he thought she was too young to undergo the procedure. Tr. at 52. She indicated Dr. Tolan continued to treat her with injections every four to six weeks. Id . She said the injections failed to completely relieve her pain. Id . She denied being able to use her left arm overhead or for pushing and pulling. Id .

Plaintiff testified her neck pain averaged between a three and a four on the pain scale. Tr. at 53. She indicated it hurt to move her neck and pain

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prevented her from turning her neck all the way. Id . She said her neck pain sometimes increased to a seven and never went away. Id .

Plaintiff testified she experienced left thumb pain when attempting to write. Id . She said she could only use her hand to grip a pen for a few minutes. Id . She indicated her ability to feel things with her fingers remained intact. Tr. at 54. She said she had difficulty pinching and a little difficulty making a complete fist with her left hand. Id . She denied her grip was strong enough to grip tools like screwdrivers and wrenches. Id . She said she dropped items like forks and glasses. Id . She denied being able to cut her food and indicated her husband did it for her. Id . She said she required her husband's assistance to wash her hair because she was unable to lift her arm to do so. Tr. at 55. She stated she was attempting to use her right hand for personal care. Id . She said she would rest in a recliner with her arm propped up for an hour after using her arms for 10 to 15 minutes. Tr. at 56. She denied being able to focus and concentrate to read, as her mind would wander. Id . She said she was unable to use a keyboard on a computer. Id . She denied texting and indicated she would call instead. Tr. at 56-57.

Plaintiff testified she felt depressed. Tr. at 57. She said she had previously received psychiatric treatment, but could no longer afford it. Id . She stated she would cry for 15 to 30 minutes, three or four times a day. Tr. at 58. She said she would sometimes visit her son's and daughter-in-law's

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house for a meal, but visited no one else. Id . She indicated she did not feel like seeing anyone on three or four days a week and would lie in bed and cry for six or seven hours on those days. Tr. at 58-59. She said she had good and bad days and her pain was around an eight on bad days. Tr. at 59. She stated she had headaches four or five times a week that lasted for a couple of hours and required she lie down in a dark place. Tr. at 59-60. She indicated she sometimes felt anxious when people were around her in stores and felt so overwhelmed she would have to leave three or four times per month. Tr. at 61.

Plaintiff testified she continued to see Dr. Mullinax for pain management every couple of months. Tr. at 61-62. She said Dr. Tolan treated her shoulder. Tr. at 62. She confirmed she had undergone shoulder surgery. Id . She denied having discussed neck surgery. Id .

Plaintiff estimated she could sit for 30 to 45 minutes at a time. Id . She said she could stand for 20 minutes. Tr. at 63. She denied being able to hold items with her left hand without using her right hand for support or holding her left arm against her body. Id . She said she would walk in her yard for about 15 minutes at a time. Tr. at 63-64. She indicated bending over caused increased pain in her neck. Tr. at 64. She denied squatting, crawling, and climbing stairs or ladders. Id . She stated cold weather increased the pain in her arm and neck and rain made her feel achy. Id . She said she would sleep

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for a couple hours at a time during the night and noted her pain would wake her. Tr. at 65. She indicated she often felt drowsy during the day and would sleep in her recliner or bed for 45 minutes to an hour and a half, two to three times per day. Id . She testified her husband helped her put on her bra and button her jeans. Tr. at 65-66. She said she wore slip-ons because she was unable to tie her shoes. Tr. at 66. She indicated her husband would open medicine bottles for her because she was unable to open them. Id . She said she drove 10 to 15 miles a couple times a week and typically relied on her husband to drive her. Id . However, she subsequently stated she drove only once or twice a month, on average. Tr. at 67. She indicated she did some dusting and tried to help her husband with laundry and meal preparation, but her husband typically finished the dusting and meal preparation, vacuumed, mopped, made the beds, added laundry detergent, and moved the clothes from the washer to the dryer. Id .

Plaintiff addressed self-employment income in 2004, 2006, and 2008, explaining that she had assisted her mother-in-law in cleaning houses. Tr. at 68. She indicated she had lifted up to 50 pounds and an average of 20 pounds in that job. Id . She said she worked in a daycare from 2009 to 2014, caring for newborns to school-aged children. Tr. at 68-69. She said some of the children she lifted weighed 25 pounds. Tr. at 69. She noted she had often sat on the floor with children. Id . She denied she retained the ability to perform the

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bending, twisting, squatting, stooping, kneeling, and crawling functions of her PRW. Id . She said she felt as if her arm "would give out" if she attempted her prior jobs. Id . She denied her doctors had released her to return to work. Id .

Plaintiff testified Dr. Mullinax had been treating her headaches since 2015. Tr. at 70. She denied having been prescribed medication specifically for headaches. Id . She indicated she had not undergone left thumb surgery. Id . She said she was not taking medication for depression or anxiety at the time and had last taken it in 2018. Id . She indicated she had previously taken medication for depression and anxiety for three to four months. Id .

Plaintiff denied doing dishes, folding clothes, ironing, sweeping, mopping, taking out the trash, cleaning the bathroom, cleaning the kitchen, cleaning the living room, performing household maintenance, doing yard work, gardening, hunting, fishing, sewing, and crocheting. Tr. at 71-72. She stated she had traveled to Tybee Island to visit her aunt in 2018 and stopped multiple times along the way. Tr. at 72, 74. She denied attending religious services, using Facebook, texting, emailing, and performing research or reading articles on the internet. Id . She said she had participated in no hobbies since 2017. Id . She denied reading for pleasure. Tr. at 73. She said she visited stores with her husband. Id . She indicated she did not go out to restaurants to eat or visit the movie theater. Id . She said she used a recliner

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to accommodate her pain and only stayed for about an hour when she visited her son's and daughter-in-law's house for meals. Id . She indicated she could remain in the store for about 30 minutes when she accompanied her husband. Tr. at 74. She said she required a break after riding in a car for an hour. Id . She stated Dr. Mullinax had not prescribed medication specifically for headaches because she was already taking Tramadol and Oxycodone. Id .

Plaintiff testified she could not get through a day without taking her pain medication. Id . She said it caused drowsiness. Id .

b. Vocational Expert Testimony

Vocational Expert ("VE") Carroll Crawford reviewed the record and testified at the hearing. Tr. at 75-82. The VE categorized Plaintiff's PRW as a daycare worker, Dictionary of Occupational Titles (" DOT ") No. 355.674-010, as requiring medium exertion and having a specific vocational preparation ("SVP") of 2, and a day worker, DOT No. 301.387-014, as requiring medium exertion and a having an SVP of 2. Tr. at 76. The ALJ described a hypothetical individual of Plaintiff's vocational profile who could lift 20 pounds occasionally and 10 pounds frequently; stand for six of eight hours; walk for six of eight hours; sit for six of eight hours; occasionally push and pull with the LUE; never climb ladders, ropes, or scaffolds; occasionally crawl; frequently balance, stoop, kneel, and crouch; never reach overhead; frequently handle with the LUE; and should avoid concentrated exposure to

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hazards. Tr. at 77. The VE testified the hypothetical individual would be unable to perform Plaintiff's PRW. Tr. at 78. The ALJ asked whether there were any other jobs in the economy the hypothetical person could perform. Id . The VE identified light jobs with an SVP of two as a stock checker, DOT No. 299.667-014, a garment sorter, DOT No. 222.687-014, and a price marker, DOT No. 239.587-034, with 142,000, 98,000, and 77,000 positions in the national economy, respectively. Id .

The ALJ asked the VE if his answer was consistent with the DOT , in accordance with SSR 00-4p. Id . The VE stated it was, except that he supplemented the information in the DOT as to overhead reaching with his observation and experience. Id . The ALJ asked the VE to review the jobs he identified in response to the hypothetical question and to identify any apparent or other conflicts with their requirements as set forth in the DOT . Tr. at 79. The VE stated he had reviewed the occupations and found no conflict, except as to overhead reaching. Id .

For a second hypothetical question, the ALJ asked the VE to consider the restrictions in the first, but to further assume the individual would be limited to lifting eight pounds with the LUE. Id . He asked the VE if the additional restriction would affect the jobs he previously identified. Id . The VE stated it would not. Id .

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The ALJ asked the VE to consider whether the following jobs were consistent with the second hypothetical question: sorter, agricultural products, DOT No. 529.687-186; bakery worker, conveyor line, DOT No. 524.687-022; and blending tank tender helper, DOT No. 520.687-066. Tr. at 80. The VE reviewed the jobs and testified the sorter and bakery worker jobs would be consistent with the hypothetical question, but the blending tank helper position would likely be precluded by the reaching limitation. Id .

For a third hypothetical question, the ALJ asked the VE to consider the restrictions in the second hypothetical, but to further assume the individual would be absent from the workstation on a daily basis, for a duration of time that would be at her own discretion. Id . He stated the individual might experience pain that would necessitate rest breaks outside of the normal rest breaks or interfere with her ability to attend and concentrate, causing her to be off task. Tr. at 80-81. He noted the breaks could vary from 15 minutes to an hour and could occur once a day or four times a day. Tr. at 81. He indicated the individual could be off task for 15% of the workday due to pain. Id . The VE testified the absences and time off-task would not be consistent with full-time work. Id .

Plaintiff's counsel asked the VE to consider a restriction to lifting no greater than five pounds with the dominant left hand. Id . She asked if the restriction would have an impact on the jobs the VE previously identified. Id .

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The VE stated the jobs were generally performed with both hands and a restriction to lifting five pounds with one hand would not prevent them. Tr. at 81-82. He stated the objects that were generally handled weighed a pound or less. Tr. at 82.

Plaintiff's counsel asked the VE if any of the jobs he identified were considered production work. Id . The VE testified they were not because he considered production work to be based on piece-rate payment. Id .

Plaintiff's counsel asked the VE to consider that the individual might be unable to keep up with the other workers because she was slowed by the limitation to one hand. Id . The VE did not answer the question directly, but stated none of the work identified would be available with no use of the LUE. Id .

2. The ALJ's Findings

In his decision, the ALJ made the following findings of fact and conclusions of law:

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2019.
2. The claimant has not engaged in substantial gainful activity since April 28, 2014, the alleged onset date (20 CFR 404.1571 et seq .).
3. The claimant has the following severe impairments: degenerative disc disease of the cervical spine; left rotator cuff tear; left thumb osteoarthritis (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

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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, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except she can occasionally push/pull with the left upper extremity. She can never climb ladders, ropes, or scaffolds. The claimant can occasionally crawl. She can frequently balance, stoop, and kneel. She can frequently reach forward to side with the left upper extremity. She can reach up to 8 pounds with the left upper extremity. She can never reach overhead with the left upper extremity. She can frequently handle with the left upper extremity. She must avoid concentrated exposure to hazards.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on October 5, 1965 and was 48 years old, which is defined as a younger individual age 45-49, on the alleged disability onset date. The claimant subsequently changed age category to closely approaching advanced age (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 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. 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, 404.1569(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from April 28, 2014, through the date of this decision (20 CFR 404.1520(g)).

Tr. at 20-30.

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II. Discussion

Plaintiff alleges the Commissioner erred for the following reasons:

1) the ALJ failed to properly evaluate the treating physician's opinion; and

2) the Appeals Council improperly declined to consider new and material evidence.

The Commissioner counters that substantial evidence supports the ALJ's findings and the ALJ committed no legal error in her decision.

A. Legal Framework

1. The Commissioner's Determination-of-Disability Process

The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a "disability." 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability as:

the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for at least 12 consecutive months.

42 U.S.C. § 423(d)(1)(A).

To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See , e . g ., Heckler v . Campbell , 461 U.S. 458, 460 (1983) (discussing considerations and noting

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"need for efficiency" in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity; (2) whether she has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents her from doing substantial gainful employment. See 20 C.F.R. § 404.1520. These considerations are sometimes referred to as the "five steps" of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).

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A claimant is not disabled within the meaning of the Act if she can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, § 404.1520(a), (b); Social Security Ruling ("SSR") 82-62 (1982). The claimant bears the burden of establishing her inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).

Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and such work exists in the economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v . Barnhart , 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that she is unable to perform other work. Hall v . Harris , 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v . Yuckert , 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).

2. The Court's Standard of Review

The Act permits a claimant to obtain judicial review of "any final decision of the Commissioner [] made after a hearing to which he was a

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party." 42 U.S.C. § 405(g). The scope of that federal court review is narrowly-tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See Richardson v . Perales , 402 U.S. 389, 390 (1971); Walls , 296 F.3d at 290 ( citing Hays v . Sullivan , 907 F.2d 1453, 1456 (4th Cir. 1990)).

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

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B. Analysis

1. Dr. Mullinax's Opinions

On June 28, 2016, Dr. Mullinax completed a check-off questionnaire related to Plaintiff's workers' compensation claim. Tr. at 984. She stated she continued to provide pain management treatment related to injuries to Plaintiff's left shoulder and neck. Id . She indicated Plaintiff had "severe pain affecting both her left shoulder and neck" that "prevent[ed] her from performing work"; would need ongoing treatment, including pain management for the foreseeable future; required medications including Ultram, Oxycodone, and Cymbalta; and would require medication adjustments over time. Id . She affirmed Plaintiff's neck and left shoulder pain had become chronic and would most probably cause permanent physical and cognitive impairment. Id . She noted it was most probable that Plaintiff's chronic pain adversely affected her pace, persistence, and concentration even when performing sedentary tasks. Id . She considered it likely that Plaintiff would require lifetime pain management involving oral medication, periodic injections, and possible future surgical procedures. Id . She noted it was probable that Plaintiff's injury affected use of her left arm, in addition to her neck and left shoulder. Id .

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Dr. Mullinax completed an RFC questionnaire on May 8, 2019. Tr. at 991-92. She explained Plaintiff had first presented to her in May 2015 and had followed up every four to eight weeks for treatment of chronic neck pain, chronic pain syndrome, cervical facet arthropathy, and cervical radiculopathy. Tr. at 991. She noted she was not treating Plaintiff's shoulder diagnosis, as it was being addressed by the orthopedic surgeon. Id . She identified Plaintiff's symptoms as including weakness, pain, and limited ROM of the neck and arm. Id . She stated Plaintiff's condition was chronic and her symptoms were constantly severe enough to interfere with attention and concentration required to perform simple work-related tasks. Id . She noted Plaintiff's medications could cause drowsiness. Id . She indicated Plaintiff would need to recline or lie down in excess of the typical 15-minute morning and afternoon breaks and 30- to 60-minute lunch period typically included in an eight-hour workday. Id . She wrote "not able to complete" as to the distance Plaintiff could walk without rest or significant pain; the amount of time she could sit, stand, and walk at one time and over the course of an eight-hour workday; whether she needed a job that permitting shifting positions at will from sitting, standing, or walking; and how often and for how long she would require unscheduled breaks over the course of an eight-hour workday. Tr. at 991. She wrote "can not do this" in response to questions as to how many pounds Plaintiff could lift and carry; whether she was limited in her abilities

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to engage in repetitive reaching, handling, or fingering; and what percentage of the workday she could use her hands, fingers, and arms to perform specified activities. Tr. at 992. She declined to indicate how often Plaintiff would be absent from work due her impairments or treatment. Id . She denied Plaintiff was a malingerer. Id . She indicated Plaintiff's impairments were reasonably consistent with the symptoms and functional limitations she described. Id .

Plaintiff argues the ALJ did not properly evaluate Dr. Mullinax's opinions. [ECF No. 17 at 30-35]. She maintains the ALJ did not consider Dr. Mullinax's pain management specialization in evaluating her opinion. Id . at 33. She contends the ALJ erred in discounting the opinion based on the absence of specific functional limitations. Id . at 33-34. She claims the ALJ cherrypicked the evidence to support a conclusion that Dr. Mullinax's opinions were inconsistent with her treatment records. Id . at 34. She maintains the ALJ impermissibly rejected Dr. Mullinax's opinion as to limitations to concentration based on an absence of objective evidence. Id . at 34-35. She claims the ALJ failed to address evidence to the contrary in rejecting Dr. Mullinax's opinion as to side effects of medication. Id . at 35. Plaintiff contends the ALJ erred in interpreting Dr. Mullinax's May 2019 opinion as addressing complete inability to perform functions, as Dr.

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Mullinax was addressing her ability to function if she were "placed in a competitive work situation on an ongoing basis." [ECF No. 20 at 3].

The Commissioner argues that substantial evidence supports the ALJ's assessment of Dr. Mullinax's opinion questionnaires. [ECF No. 19 at 11]. He maintains the ALJ weighed the opinions pursuant to the governing regulations, noting that Dr. Mullinax was a treating source, but finding the opinion unpersuasive in light of her failure to identify specific functional limitations and the absence of evidence of Plaintiff's inability to perform functional activities such as standing, walking, and sitting. Id . at 13-14. He contends the ALJ further reasoned the record did not support a finding that Plaintiff's left arm was completely unusable. Id . at 14. He claims the ALJ relied on evidence that Plaintiff had good control of her pain with medication, intact attention and concentration, and tolerated her medication with minimal side effects. Id . at 14-17.

Because Plaintiff's application for benefits was filed prior to March 27, 2017, the rules and regulations in 20 C.F.R. § 404.1527 and SSRs 96-2p, 96-5p, and 06-3p address the factors the ALJ was required to consider in evaluating the medical opinion evidence. See 20 C.F.R. § 404.1520c (stating "[f]or claims filed before March 27, 2017, the rules in § 404.1527 apply"); 82 Fed. Reg. 15,263 (noting the rescissions of SSR 96-2p, 96-5p, and 06-3p were effective for "claims filed on or after March 27, 2017"). These rules and

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regulations include a "treating physician rule," requiring the adjudicator to accord controlling weight to a treating physician's medical opinion if it is well supported by medically-acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence of record. 20 C.F.R. §§ 404.1527(c)(2). "[T]reating physicians are given 'more weight . . . since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone[.]" Lewis v . Berryhill , 858 F.3d 858, 867 (4th Cir. 2017) (quoting 20 C.F.R. § 404.1527(c)(2)).

"[T]he ALJ holds the discretion to give less weight to the testimony of a treating physician in the face of persuasive contrary evidence." Mastro v . Apfel , 270 F.3d 174 (4th Cir. 2011) (citing Hunter v . Sullivan , 993 F.2d 31, 35 (4th Cir. 1992)). However, if the ALJ concludes that a treating physician's opinion is not well supported by medically-acceptable clinical and laboratory diagnostic techniques or is inconsistent with the other substantial evidence of record, he cannot merely reject the opinion. SSR 96-2p, 1996 WL 374188, at *4. His decision "must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record" and must be "sufficiently specific to make clear" to the court "the

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weight [he] gave to the . . . opinion and the reason for that weight." Id . at *5. If the ALJ declines to accord controlling weight to the treating source's medical opinion, he must weigh the opinion based on the following factors: "(1) the '[l]ength of the treatment relationship and the frequency of examination'; (2) the '[n]ature and extent of the treatment relationship'; (3) '[s]upportability,' i.e., the extent to which the opinion is consistent with the evidence in the record; (5) the extent to which the treating physician is a specialist opining as to 'issues related to his or her area of specialty': and any other factors raised by the parties 'which tend to support or contradict the medical opinion.'" Dowling v . Commissioner of Social Security Administration , 986 F.3d 377, 384-85 (4th Cir. 2021) (citing 20 C.F.R. § 404.1527(c)(2)(i)-(6)).

The ALJ addressed Dr. Mullinax's opinion as follows:

Treating source L. Ashley Mullinax opined the claimant has permanent physical and cognitive impairments that affect her pace, persistence and concentration, and affects the use of her left upper extremity (Exhibit 29F). She later opined the claimant cannot perform any exertional, postural, or manipulative tasks (Exhibit 31F). Although a treating source, Dr. Mullinax failed to give specific functional limitations but rather indicated "not able to complete" (Exhibit B31F/1). Furthermore, the record does not reflect a complete inability to perform exertional activities such as standing, walking, or sitting (Exhibits 12F/18, 63, 79, 21F/9, 27F/7). Nor does the record reflect complete inability to use the left upper extremity. While examinations note some decreased range of motion and strength of the left upper extremity, treatment notes do not describe the claimant as having no range of motion or strength (Exhibits 2F/41, 5F/21, 7F/2, 3, 12F/39,

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21F/11, 27F/7, 30F/4). Dr. Mullinax's opinion is not consistent with her treatment records. She reported that pain is reduced 20% today, pain is 3/10, pain is stable and controlled with medication management, treatment helps maintain ability to enjoy quality time with family and friends and assist with staying active (Exhibit 26F). Dr. Mullinax recommended core strengthening, balancing and stretching (Exhibit 26F). In other treatment records Dr. Mullinax noted medications working well pain under better control, I do not think the findings from her cervical MRI are significant enough to be contributing at this point to the pain she is experiencing (Exhibit 20F). With respect to concentration the mental status examinations and mental longitudinal history is not consistent with her opinion. The claimant had three of three delayed recall, could spell world forwards and backwards, and the claimant score[d] 30 of 30 on the Folstein Mini Mental Status Examination, a score of 24 or more is normal (Exhibit 8F). With respect to side effects from medications the claimant was reported to be tolerating medications, the claimant had no side effects from medications the claimant fe[lt] safe to drive, and walk for exercise, most of these reports come from Dr. Mullinax['s] treatment records (Exhibit 24F, 20F, 12F and 5F). Therefore, the undersigned gives little weight to Dr. Mullinax's opinions.

Tr. at 27.

The ALJ cited valid reasons for declining to accord controlling weight to Dr. Mullinax's opinion. He pointed to evidence that was arguably inconsistent with it, including Plaintiff's denial of medication-related side effects during some visits, her ratings of her pain level, and normal mental status exam findings.

Although the ALJ cited sufficient evidence to support his conclusion that Dr. Mullinax's opinion was not entitled to controlling weight, he did not have "free reign to attach whatever weight to that opinion that he deemed fit"

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and "was required to consider each of the six 20 C.F.R. § 404.1527(c) factors before casting [the] opinion aside." Dowling , 986 F.3d at 385. The Fourth Circuit recently affirmed that an ALJ errs in failing to consider each of the factors in 20 C.F.R. § 404.1527(c). See id . "While an ALJ is not required to set forth a detailed factor-by-factor analysis in order to discount a medical opinion from a treating physician, it must nonetheless be apparent from the ALJ's decision that he meaningfully considered each of the factors before deciding how much weight to give the opinion." Id . at 385 (emphasis in original) (citing Arakas v . Comm'r of SSA , 983 F.3d 83, 107 n.16 (4th Cir. 2020) ("20 C.F.R. § 404.1527(c) requires ALJs to consider all of the enumerated factors in deciding what weight to give a medical opinion." (emphasis in original)); Newton v . Apfel , 209 F.3d 448, 456 (5th Cir. 2000) (agreeing with the "[s]everal federal courts [that] have concluded that an ALJ is required to consider each of the § 404.1527[c] factors" when weighing the medical opinion of a treating physician).

The ALJ concluded Dr. Mullinax's opinion was not supported by her other findings in the record and was inconsistent with Plaintiff's reports as to her pain and other providers' findings as to her mental status. His decision addresses the supportability and consistency factors in 20 C.F.R. § 404.1527(c), but ignores the other four factors.

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Although the ALJ acknowledged a treatment relationship existed between Plaintiff and Dr. Mullinax, Tr. at 27, he ignored the length of the treatment relationship and frequency of examination in his analysis. Dr. Mullinax represented she had begun treating Plaintiff in May 2015, examined her every four to eight weeks over that period, and continued to treat her through May 2019, when she rendered her second opinion. See Tr. at 991-92. Pursuant to 20 C.F.R. § 404.1527(c)(2)(i), "[g]enerally, the longer a treating source has treated you and the more times you have been seen by a treating source, the more weight we will give to the source's medical opinion. When the treating source has seen you a number of times and long enough to have obtained a longitudinal picture of your impairment, we will give the medical source's medical opinion more weight than we would give it if it were from a nontreating source." A four-year treatment history that included visits every four to eight weeks would arguably suggest that Dr. Mullinax was sufficiently familiar with Plaintiff's functioning to opine as to her functional abilities.

The ALJ also declined to recognize the nature and extent of the relationship between Plaintiff and Dr. Mullinax. Nowhere in his decision did the ALJ acknowledge that Dr. Mullinax was treating Plaintiff for pain

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management. "Generally, the more knowledge a treating source has about your impairment(s) the more weight we will give the source's medical opinion." 20 C.F.R. § 404.1527(c)(2)(ii). "We will look at the treatment the source has provided and at the kinds and extent of examinations and testing the source has performed or ordered from specialists and independent laboratories." Id . The regulation specifies the adjudicator is to give greater weight to an opinion from a physician who has treated the claimant for the impairment she addresses in her opinion. Id . Dr. Mullinax treated Plaintiff specifically for neck pain that radiated to her upper extremities and addressed the effect of pain on her functional abilities. Over the course of treatment, Dr. Mullinax conducted regular examinations that yielded findings of tenderness and pain to palpation, reduced ROM of the left shoulder and cervical spine, and reduced grip strength. See , e . g ., Tr. at 497, 500, 534, 862, 959. She monitored and adjusted Plaintiff's medications, administered a cervical ESI, and ordered a new MRI to address Plaintiff's pain complaints. See , e . g ., Tr. at 503, 511, 525, 573, 579-80, 863. As the nature and extent of the treatment relationship arguably bolsters Dr. Mullinax's opinion, the ALJ erred in declining to address it in weighing her opinion.

A review of the ALJ's decision shows that he did not consider Dr. Mullinax's pain management specialization in weighing her opinion, as

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required pursuant to 20 C.F.R. § 404.1527(c)(5). "We generally give more weight to the medical opinion of a specialist about medical issues related to his or her area of specialty than to the medical opinions of a source who is not a specialist. 20 C.F.R. § 404.1527(c)(5). The ALJ did not consider Dr. Mullinax's expertise in addressing the effects of pain in weighing her opinion.

The ALJ declined to consider other factors that arguably supported Dr. Mullinax's opinion, contrary to the direction in 20 C.F.R. § 404.1527(c)(6). Although the ALJ acknowledged evidence in the record as to fluctuations in Plaintiff's pain level on "good" and "bad" days and with increased exertion, Tr. at 24, 25, he did not consider such evidence in weighing Dr. Mullinax's opinion. This was particularly relevant because Dr. Mullinax addressed Plaintiff's ability to complete tasks if "placed in a competitive situation on an ongoing basis." Tr. at 991.

In addition to failing to address all relevant factors in 20 C.F.R. § 404.1527(c), the ALJ failed to reconcile conflicting evidence in concluding that Dr. Mullinax's treatment records did not support her opinion and her opinion was inconsistent with the other substantial evidence of record. For example, the ALJ did not address evidence that Plaintiff's pain interfered with her sleep and ADLs. See , e . g ., Tr. at 502, 510, 547. In noting Plaintiff's assessment of her pain as a three at the time of an assessment, he neglected evidence that her pain level varied between from a two to a seven, was an

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eight on bad days, and could "go up to 10/10 with activity." Tr. at 567, 859, 942. He also failed to note that Plaintiff most often rated her pain as a four, which was considered "moderate" and she often saw Dr. Mullinax within a few hours of having taken Oxycodone, which was prescribed every eight hours. See Tr. at 532-33 (pain rating of six at 2:15 PM, last dose 12:30 PM); Tr. at 546 (pain rating of four at 3:26 PM, last dose at noon); Tr. at 566 (pain rating of four at 1:31 PM, last dose at 8:30 AM); Tr. at 690 (pain rating of four at 12:49 PM, last dose 7:00 AM); Tr. at 859 (pain rating of three at 10:30 AM, last dose 8:15 AM); Tr. at 942 (pain rating of three at 1:45 PM, last dose at noon); Tr. at 955 (pain rating of four at 10:15 AM, last dose 7:00 AM). He did not consider that Plaintiff's medication counts reflected she was taking her medication as prescribed, including Oxycodone every eight hours. See id . The ALJ cited only a portion of Dr. Mullinax's opinion as to the etiology of Plaintiff's neck pain, ignoring that she considered Plaintiff's pain complaints to be legitimate, but more likely caused by her left shoulder impairment than her neck impairment. See Tr. at 500 ("I feel that patient's main pain complaint is her left shoulder and is most likely contributing to her neck pain/strain. I do not think the findings from her cervical MRI are significant enough to be contributing at this point to the pain she is experiencing . . ."). He failed to address the January 2019 MRI of Plaintiff's cervical spine that showed disc bulges at the C4-5 and C5-6 levels that effaced the

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cerebrospinal fluid in the ventral thecal sac and moderate bilateral neural foraminal narrowing at C5-6, Tr. at 903-04. See generally Tr. at 20-29 (containing no reference to this evidence). The ALJ did not acknowledged, as Dr. Mullinax provided her second opinion in May 2019, it was likely influenced to some extent by the findings on the more recent MRI.

Finally, the ALJ rejected multiple providers' opinions as to functional limitations to Plaintiff's cervical spine and left upper extremity without considering their consistency with Dr. Mullinax's opinion. See Tr. at 26 (giving "little weight" to Dr. Korn's opinion that Plaintiff was "unable to do anything overhead" with her left upper extremity, was "not going to be able to apply a lot of force to manipulations below shoulder level," and her "cervical spine motion [was] significantly limited and her ability to do things overhead for more than just a brief duration [would] affect her safety in the workplace and driving because of the limited rotation"); Tr. at 26-27 (allocating "little weight" to Dr. Dameron's opinion that Plaintiff had a 36% impairment to the left shoulder, a 30 percent impairment to the left upper extremity, and a 16% impairment to the spine); Tr. at 28 (according little weight to Dr. Siffri's opinions that Plaintiff could perform limited duty with no use of the left arm, waist-level work, and could not work; giving partial weight to Dr. Fulton's opinion that Plaintiff could perform no overhead work, could not reach actively above shoulder height, and could lift up to five

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pounds and push up to eight pounds with her left shoulder; and allocating "little weight" to the physical therapists' 2014 and 2015 opinions that Plaintiff was unable to carry objects greater than two pounds without pain and fear).

Substantial evidence does not support the ALJ's allocation of little weight to Dr. Mullinax's opinion, given his failure to evaluate it in light of the entire record and to consider all the factors in 20 C.F.R. § 404.1527(c).

2. Evidence Submitted to Appeals Council

Dr. Mullinax provided a letter on December 10, 2019. Tr. at 8. She indicated she was a board-certified pain management physician and had treated Plaintiff since May 2015. Id . She explained Plaintiff's 2015 cervical MRI showed disc bulges at C4-5 and C5-6 with mild narrowed left foramen at C5-6 and she initially considered Plaintiff's left shoulder to be the primary source of her pain. Id . She noted Plaintiff's cervical spine and neck pain had worsened, as evidenced by a January 2019 MRI that showed moderate bilateral foraminal narrowing at C5-6 with disc bulges at C4-5 and C5-6. Id . She stated Plaintiff had received two cervical ESIs that provided 20% pain relief. Id . She indicated Plaintiff's pain levels had varied from a three to an eight. Id . She noted findings of reduced ROM of the cervical spine and left shoulder and TTP in the cervical spine and trapezius. Id . She wrote: "While I have noted her pain is stable at certain points in my notes, this means that

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her chronic pain has not worsened and not that she has improved to the extent that she can work a full time job." Id . She stated Plaintiff would be off task more than 15% of the working day due to neck and left shoulder pain and side effects of Oxycodone. Id . She indicated Plaintiff's pain and medications decreased her ability to concentrate. Id . She further noted Plaintiff would be limited to sedentary work due to degeneration of her cervical spine and left shoulder problems. Id . She stated Plaintiff had been so limited since her injury on April 28, 2014. Id .

The Appeals Council acknowledged receipt of Dr. Mullinax's letter, but declined to exhibit it, as it found it did "not show a reasonable probability that it would change the outcome of the decision." Tr. at 2.

Plaintiff argues the Appeals Council erred in declining to remand the case based on Dr. Mullinax's December 2019 letter. [ECF No. 17 at 35-39].

Given that the undersigned recommends the court remand the case to address the error discussed above, it is unnecessary to address whether the Appeals Council erred in failing to remand the case based on Dr. Mullinax's December 2019 letter. The ALJ should address this and any other relevant evidence in rendering a new decision.

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

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

IT IS SO RECOMMENDED.

April 22, 2021
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).