South Carolina Cases July 13, 2021: McFadden v. Kijakazi

Case Description

REPORT AND RECOMMENDATION

MOLLY H. CHERY UNITED STATES MAGISTRATE JUDGE

Plaintiff Arlene Renee McFadden filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of Defendant Commissioner of Social Security (the Commissioner) denying her claim for Disability Insurance Benefits (DIB) under Title II of the Social Security Act. This case was referred to the undersigned for a report and recommendation pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(a) (D.S.C.). Having carefully considered the parties’ submissions and the applicable law, the undersigned recommends that the Commissioner’s decision be reversed and remanded for further findings for the reasons that follow.

I. BACKGROUND

A. Procedural History

Plaintiff applied for DIB on December 15, 2015, alleging disability beginning June 1, 2014. See R.pp. 15, 53, 200. Plaintiff’s claim was denied initially and upon reconsideration, and Plaintiff then requested a hearing before an Administrative Law Judge (ALJ). R.pp. 66, 89, 90-93, 96-101. A hearing, at which Plaintiff testified, was held on November 7, 2018. R.pp. 32-52. The ALJ thereafter denied Plaintiff’s claims in a decision issued on March 21, 2019, finding that Plaintiff was not disabled from the date of her application through December 31, 2017, the date she was last insured for DIB benefits. R.pp. 15-25.

The Appeals Council denied Plaintiff’s request for review on February 6, 2020, making the ALJ’s decision the final decision of the Commissioner for purposes of judicial review. R.pp. 1-6. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner’s decision.

B. Relevant Evidence and Hearing Testimony

1. Medical Records

Plaintiff’s medical records were included as exhibits to the ALJ’s opinion (R.pp. 26-30) and are summarized below. See R.pp. 290-975.

a. Lowcountry Orthopaedics and Trident Hospital

Plaintiff was treated by various providers at Lowcountry Orthopaedics for shoulder, neck, arm, back, and lower extremity pain from April 2014 through August 2018. R.pp. 540-716, 748781, 793-828, 843-864, 873-939. On April 30, 2014, physician’s assistant Justin Runey noted that an MRI of Plaintiff’s shoulder showed moderate supraspinous tendinopathy, intrasubstance longitudinal tear with no full thickness tear, and mild subacromial bursitis, which he summarized as showing “some mild wear to be expected for [Plaintiff’s] age.” R.pp. 649-652.

On May 2, 2014, a cervical MRI showed a small right central disc protrusion and bulge at C5-6 that produced mild central canal and moderate right lateral recess stenosis with moderate asymmetric flattening of the spinal cord to the right. There was also a small central disc protrusion at C3-4 and a mild disc bulge at C5-6 with mild central canal stenosis at both levels. R.p. 673.

Dr. Shailesh Patel noted that Plaintiff had tenderness in her paracervicals and trapezius; trigger joint pain (cervical, trapezius, supraspinatus); painful range of motion (ROM); and decreased sensation in her radial forearm, thumb, and index finger on May 21, 2014. R.pp. 643 646. On July 30, 2014, Dr. Patel noted that Plaintiff had two failed epidural injections and he referred her to a surgeon. He also indicated that EMG and NCV testing showed severe left and mild right carpal tunnel syndrome (CTS). R.pp. 640-643, 667-668. A lumbar MRI on August 7, 2014, revealed mild to moderate bilateral L4-5 neural foraminal stenosis with no high-grade stenosis. The central canal was patent throughout with no disc herniation. R.p. 665.

On August 18, 2014, Dr. William Wilson of Lowcountry Orthopaedics performed a C5-6 discectomy with fusion/instrumentation at Trident Medical Center (Trident). R.pp. 478-480. On September 2, 2014, Dr. Wilson noted that Plaintiff was doing well after her surgery and cleared her for a left carpal tunnel release procedure, which was performed by Dr. Keith Santiago on September 15, 2014. R.pp. 627-630, 693. Plaintiff reported she was doing well with improved arm pain and paresthesias on September 30, 2014. Dr. Santiago assessed significantly improved radiculopathy and improved CTS. Plaintiff was advised to increase her activities and follow up in 6-8 weeks with updated x-rays. R.pp. 625-627.

On October 22, 2014, examination indicated painful ROM, full strength, and decreased sensation in the sole of Plaintiff’s foot and posterior leg. R.pp. 616-619. Plaintiff reported pain with motion in her lumbar spine and decreased sensation in her lower extremities on December 23, 2014. She had moderate relief of back pain after epidural steroid injections on November 7 and 24, 2014. R.pp. 610-613, 689-692.

An EMG on January 8, 2015, showed no evidence of nerve entrapment, generalized peripheral neuropathy, or lumbar radiculopathy in either lower extremity. R.pp. 658-659. Plaintiff reported pain down her mid back into her fingers with weakness, numbness, and tingling on March 23, 2015. R.pp. 596-600. A cervical MRI indicated postoperative changes at C5-6, contact from a tiny central protrusion at C4-5, and possible contact of the ventral cord at C3-4. R.pp. 656. Plaintiff received a number of cervical and lumbar epidural injections from April through October 2015. R.pp. 679-686. On December 2, 2015, Plaintiff reported that a recent fall required treatment for a broken foot, and she had continued lower back pain with weakness, numbness, and radiation. Plaintiff was referred for surgery because it was determined she had failed non-operative treatment. R.pp. 557-561.

Dr. Thomas Litton and Dr. William Wilson performed an L4-5 anterior lumbar interbody fusion at Trident on February 4, 2016. R.pp. 471-472. Plaintiff was stable at her first post-op visit with Dr. Wilson on February 21, 2016. R.pp. 541-544.

On June 10, 2016, Plaintiff reported pain in both her lumbar and cervical spine, with pain radiating to her hands that was aggravated by looking up, moving her shoulders, overhead activity, computer use, and turning her head to the left or right. She reported headaches, loss of grip strength, and difficulty sleeping. R.pp. 754-758. On August 24, 2016, a lumbar MRI showed postoperative changes at L4-5 with patent central canal, contact of the right neural foramen at L4-5 and possible contact on the left, possible contact on both sides at L3-4, and no severe central or exit narrowing. R.p. 782. Plaintiff continued to have pain after a September L5-S1 epidural injection, and she underwent consultation with Dr. Christopher Merrell in October 2016 for placement of a spinal cord stimulator. R.pp. 806-810.

Dr. Merrell performed a temporary stimulator placement at Trident on December 9, 2016, and Plaintiff reported 80% relief on December 15, 2016. R.pp. 849-853, 859-860. A permanent stimulator was placed on January 31, 2017. R.pp. 869-872. On February 13, 2017, Plaintiff reported good coverage of both her cervical and lumbar pain. R.pp. 924-926.

On August 28, 2017, examination revealed antalgic gait and decreased sensation through Plaintiff’s bilateral lower thighs, knees, medial leg, dorsum of her feet, radial forearm, and fingers. Plaintiff’s main complaint was increased right shoulder pain for which she was referred to a surgeon. R.pp. 912-916. An MRI of Plaintiff’s right shoulder showed a partial tear as before and she was referred to a PT for gentle ROM and light strengthening. R.pp. 905-908. On October 26, 2017, Plaintiff reported some improvement after the placement of her stimulator but she continued to complain of pain due to adjacent segment disease. R.pp. 901-905.

In January 2018 (after Plaintiff’s date last insured of December 31, 2017), Plaintiff complained that her pain was exacerbated after a fall during an ice storm, and it was recommended that her stimulator be reprogramed and that she receive an updated MRI if she did not improve. R.pp. 897-901. On May 2, 2018, Plaintiff returned to review her MRI findings. A thoracic spine MRI showed disc bulge at T3-4 and chronic anterior wedge deformities at T4 and T5. There was concern about disc pathology adjacent to her cervical spine fusion. An updated MRI and therapeutic/diagnostic epidural injections were recommended. A lumbar spine MRI in April 2018 showed a L2-3 mild disc bulge and facet disease with a left-sided tear at 3-4. Plaintiff had moderate facet disease at L5-S with a 6-centimeter area of fat edema behind L1, likely from a fall. She reported doubling the intensity of her stimulator but thought it did not “reach” her pain. R.pp. 883887, 943-946. On May 31, 2018, a cervical spine MRI showed moderate central stenosis at C4-5 and mild disc bulges at C3-4 through C6-7. Plaintiff reported that the epidural injection provided minimal relief and she was referred for physical therapy. R.pp. 878-883, 941-942. On August 13, 2018, it was noted that Plaintiff’s pain had increased overall and she was again referred for physical therapy. R.pp. 873-877.

b. Health First Rapid Care, Inc. (Healthfirst)

Plaintiff was treated by family practitioner Dr. Richard Rhodes and other providers at Healthfirst during the relevant time period. She received treatment for hypertension, obesity, headaches, vertigo, depression, neck and shoulder pain, low back pain, and fatigue. R.pp. 309-468, 717-726, 950-962.

On August 3, 2016, Dr. Rhodes completed a questionnaire about Plaintiff’s mental condition. He noted she was diagnosed with depression and was prescribed Wellbutrin which helped her condition. Psychiatric care had not been recommended. Plaintiff’s mental status was noted to be normal except for a depressed mood/affect and poor concentration/attention. Dr. Rhodes opined that Plaintiff had good ability to complete simple, routine tasks; adequate ability to complete basic activities of daily living and relate to others; and poor ability to complete complex tasks (because she could not concentrate or focus). He opined that she was unable to work because of depression and an inability to concentrate, but thought she was capable of managing her funds. R.p. 725.

c. Dr. Fishburne - Consultative Psychological Examination

On June 6, 2016, Plaintiff reported to psychologist Dr. Francis J. Fishburne that she first sought mental health treatment in 2000, but never had a psychiatric hospitalization and had not seen a mental health worker for twelve years. She felt anxious daily and depressed daily for at least half the day. Plaintiff reportedly spent most of her time in her recliner; watched television; tried to do some household chores; had no hobbies; and relied on her husband to do cooking, cleaning, and shopping. A mini-mental status examination was normal. Dr. Fishburne thought that Plaintiff was able to understand and carry out simple instructions without difficulty; her concentration, memory, and processing speed for simple tasks appeared adequate; and she would not require assistance in managing funds. R.pp. 727-731.

d. Dr. Sheldon C. Levin

On November 3-4, 2016, psychologist Dr. Sheldon C. Levin conducted a presurgical psychophysiological pain evaluation to determine whether Plaintiff would be an appropriate candidate to receive an implanted spinal cord stimulator. Examination indicated that Plaintiff had a depressed mood, appropriate affect, normal thought process, average cognitive ability, mildly distractible attention/concentration, and mildly deficient memory. Dr. Levin thought that Plaintiff appeared somewhat preoccupied with her bodily functions and symptoms and tended to overreact with any increase in pain or symptoms. He diagnosed Plaintiff with chronic pain disorder, major depressive disorder, single episode, mild without psychotic features. Plaintiff reported that she had problems falling and remaining asleep, took Trazadone which allowed her to fall asleep, had awakenings during the night secondary to pain, and did not always take Trazadone because she often had to get up early to drive her grandchildren to school. Dr. Levin recommended that Plaintiff receive an implanted spinal cord stimulator and strongly recommended she participate in psychiatric and psychological consultation to address her depression and associated physiological issues of sleep, appetite, and mood. R.pp. 829-838.

On November 22, 2016, Dr. Levin completed a mental condition questionnaire in which he noted that Plaintiff’s mental status was normal except that Plaintiff had a depressed mood, mildly distractible attention/concentration, and a mild deficit in memory. He opined that Plaintiff had poor ability to complete basic activities of daily living due to pain (and not because of emotional/psychological factors), but was capable of managing her own funds and had good ability to relate to others, adequate ability to complete simple and routine tasks, and adequate ability to complete complex tasks. R.pp. 840-841.

e. State Agency Medical and Psychological Consultants

In May 2016, state agency physician Dr. Isabella McCall opined that Plaintiff could perform a range of light work with limitations to frequent performance of postural activities, frequent overhead reaching, and avoidance of concentrated exposure to hazards such as machinery and heights. R.pp. 60-63. In January 2017, state agency physician Dr. Donna Stroud opined that Plaintiff could perform less than a full range of light work with standing and/or walking limited to four hours (rather than six hours) in an eight-hour workday. She opined that Plaintiff had limitations of never climbing ladders; frequent climbing of ramps/stairs, balancing, and kneeling; occasional stooping, crouching, and crawling; frequent reaching overhead; and avoidance of even moderate exposure to hazards. R.pp. 80-84.

In June 2016, state agency psychologist Dr. Michael Neboschick concluded that Plaintiff did not have a severe mental impairment. R.pp. 58-59. In January 2017, state agency psychologist Dr. Rebekah Jackson opined that Plaintiff was moderately limited in her ability to maintain attention and concentration for extended periods; moderately limited in her ability to carry out detailed instructions; and was not significantly limited in her ability to carry out short and simple instructions. R.pp. 84-85.

2. Plaintiff’s Testimony

Plaintiff testified that she had been out of work since 2014 because of back issues, for which she had undergone several surgeries. R.p. 37. She first sought treatment for a shoulder injury, and spinal issues were discovered after she continued to complain of symptoms in her hands and arm. Plaintiff stated that the cervical spine surgery helped some but described her lumbar surgery as “a failure.” R.p. 38. She testified that she continued to experience pain, migraine headaches, numbness, and tingling. R.p. 39. Plaintiff stated that her narcotic and other medications caused fatigue and difficulty concentrating. Although her spinal cord stimulator initially helped, subsequent falls caused her pain to return. R.p. 41.

Plaintiff said that sitting was uncomfortable and she walked slowly. She testified that a walker was prescribed and she needed the walker if she went to the supermarket or “out.” R.p. 40. Plaintiff said she spent much of her time lying down and could no longer do any chores at home. R.p. 44. She testified that she had been diagnosed with depression in 2000, had been dealing with depression for years, and thought her depression had “gotten worse” because she could not do anything. R.p. 45.

3. ALJ’s Decision

The ALJ found, in pertinent part:

1. The [Plaintiff] last met the insured status requirements of the Social Security Act on December 31, 2017.

2. The [Plaintiff] did not engage in substantial gainful activity during the period from her alleged onset date of June 1, 2014[,] through her date last insured of December 31, 2017 (20 CFR 404.1571 et seq. ).

3. Through the date last insured, the [Plaintiff] had the following severe impairments: degenerative disc disease status post anterior lumbar interbody fusion (ALIF) surgery and cervical fusion; and depression (20 CFR 404.1520(c)).

4. Through the date last insured, the [Plaintiff] did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).

5. After careful consideration of the entire record, [the ALJ found] that, through the date last insured, the [Plaintiff] had the residual functional capacity to lift and carry up to 20 pounds occasionally and 10 pounds frequently, stand and/or walk for about 4 hours total in an 8-hour workday, and sit for about 6 hours in an 8-hour workday. The [Plaintiff] could never climb ladders, or scaffolds. She could frequently climb ramps and stairs, balance, and kneel. The [Plaintiff] could occasionally stoop, crouch, and crawl. She was limited to frequent overhead reaching bilaterally. The [Plaintiff] was able to concentrate sufficiently to understand, remember, and carry out simple instructions.

6. Through the date last insured, the [Plaintiff] was unable to perform any past relevant work (20 CFR 404.1565).

7. The [Plaintiff] was ....46 years old, which is defined as a younger individual age 45-49, on the date last insured. (20 CFR 404.1563).

8. The [Plaintiff] 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 the Medical-Vocational Rules support a finding that the [Plaintiff] is “not disabled,” whether or not the [Plaintiff] has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

10. Through the date last insured, considering the [Plaintiff’s] age, education, work experience, and residual functional capacity, there were jobs that existed in significant number in the national economy that the [Plaintiff] could have performed (20 CFR 404.1569 and 404.1569a).

11. The [Plaintiff] was not under a disability, as defined in the Social Security Act, at any time from June 1, 2014, the alleged onset date, through December 31, 2017, the date last insured (20 CFR 404.1520(g)).

R.pp. 17-24. The ALJ further made the following decision regarding Plaintiff’s claim: “Based on the application for a period of disability and disability insurance benefits protectively filed on December 15, 2015, the [Plaintiff] was not disabled under section 216(i) and 223(d) of the Social Security Act through December 31, 2017, the date last insured.” R.p. 24.

II. APPLICABLE LAW

A. Scope of Review

Under 42 U.S.C. § 405(g), the Court’s scope of review is limited to (1) whether the Commissioner’s decision is supported by substantial evidence, and (2) whether the ultimate conclusions reached by the Commissioner are legally correct under controlling law. 42 U.S.C. § 405(g); Walls v. Barnhart , 296 F.3d 287, 290 (4th Cir. 2002) (citing Hays v. Sullivan , 907 F.2d 1453, 1456 (4th Cir. 1990)). Accordingly, a reviewing court must uphold the final decision when “an ALJ has applied correct legal standards and the ALJ’s factual findings are supported by substantial evidence.” Brown v. Comm’r Soc. Sec. Admin. , 873 F.3d 251, 267 (4th Cir. 2007) (internal quotation marks omitted).

“Substantial evidence” is an evidentiary standard that is not high: it is “more than a mere scintilla” and means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill , 139 S.Ct. 1148, 1154 (2019). A reviewing court does not reweigh conflicts in evidence, make credibility determinations, or substitute its judgment for that of the ALJ. Hancock v. Astrue , 667 F.3d 470, 472 (4th Cir. 2012). “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ].” Id . (alteration in original) (internal quotation marks and citation omitted). However, this limited review does not mean the findings of an ALJ are to be mechanically accepted, as the “statutorily granted review contemplates more than an uncritical rubber stamping of the administrative action.” Howard v. Saul, 408 F.Supp. 3d 721, 725-26 (D.S.C. 2019) (quoting Flack v. Cohen , 413 F.2d 278, 279 (4th Cir. 1969)).

B. Sequential Evaluation Process

To be considered “disabled” within the meaning of the Social Security Act, a claimant must show that he has an impairment or combination of impairments that prevents him from engaging in all substantial gainful activity for which he is qualified by his age, education, experience, and functional capacity, and which has lasted or could reasonably be expected to last for a continuous period of not less than twelve months. See 42 U.S.C. § 423(d). The Social Security Administration (SSA) has established a five-step sequential evaluation process for determining if a person is disabled. 20 C.F.R. §§ 404.1520. The five steps are: (1) whether the claimant is engaging in substantial gainful activity; (2) whether the claimant has a severe medically determinable impairment; (3) whether the impairment(s) meets or equals an impairment set forth in the Listings of Impairments, 20 C.F.R. Part 404, Subpt. P., App. 1; (4) whether the impairment(s) prevents the claimant from returning to his past relevant work; and, if so, (5) whether the claimant is able to perform other work as it exists in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(i)-(v); see Woods v. Berryhill , 888 F.3d 686, 689 (4th Cir. 2018).

It is the claimant’s duty both to produce evidence and prove he is disabled during the first four steps of the inquiry, while the burden shifts to the Commissioner for the final step. Pass v. Chater , 65 F.3d 1200, 1203 (4th Cir. 1995). To satisfy this burden at step five, the Commissioner must prove, “by a preponderance of the evidence, that the claimant can perform other work that exists in significant numbers in the national economy, considering the claimant’s residual functional capacity, age, education, and work experience.” Monroe v. Colvin , 826 F.3d 176, 180 (4th Cir. 2016) (internal quotation marks omitted). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Mascio v. Colvin , 780 F.3d 632, 635 (4th Cir. 2015); Grant v. Schweiker , 699 F.2d 189, 192 (4th Cir. 1983). The ALJ is to develop the record and where the ALJ “fails in his duty to fully inquire into the issues necessary for adequate development of the record, and such failure is prejudicial to the claimant, the case should be remanded.” Marsh v. Harris , 632 F.2d 296, 300 (4th Cir. 1980).

III. DISCUSSION

Plaintiff generally alleges that the ALJ’s residual functional capacity (RFC) analysis is not supported by substantial evidence and makes three specific arguments of error that: (1) the ALJ failed to properly apply the Commissioner’s “special technique” for evaluating mental impairments; (2) the ALJ failed to consider her impairments in combination; and (3) the ALJ’s assessment of her subjective complaints is not supported by substantial evidence.

A. Subjective Complaints

Plaintiff appears to argue that the ALJ failed to follow SSR 16-3p and 20 C.F.R. § 404.1529 in evaluating her subjective complaints and in concluding that her complaints were inconsistent with treatment records. The Commissioner asserts that substantial evidence supports the ALJ’s finding that Plaintiff’s subjective statements were not entirely consistent with the evidence.

A claimant’s statements are among the evidence the ALJ must consider and reconcile with her RFC assessment. “[A]n ALJ follows a two-step analysis when considering a claimant’s subjective statements about impairments and symptoms.” Lewis , 858 F.3d 858, 865-66 (4th Cir. 2017) (citing 20 C.F.R. §§ 404.1529(b)-(c), 416.929(b)-(c)). “First, the ALJ looks for objective medical evidence showing a condition that could reasonably produce the alleged symptoms.” Id. at 866 (citing 20 C.F.R. §§ 404.1529(b), 416.929(b)). The ALJ proceeds to the second step only if the claimant’s impairments could reasonably produce the symptoms she alleges. See 20 C.F.R. § 404.1529(c)(1) .

At the second step, the ALJ is required to “evaluate the intensity, persistence, and limiting effects of the claimant’s symptoms to determine the extent to which they limit the claimant’s ability to perform basic work activities.” Lewis , 858 F.3d at 866 (citing 20 C.F.R. § 404.1529(c)). The ALJ must “evaluate whether the [claimant’s] statements are consistent with objective medical evidence and the other evidence.” Soc. Sec. Ruling 16-3p: Titles II & XVI: Evaluation of Symptoms in Disability Claims, SSR 16-3P, 2016 WL 1119029, at *6 (S.S.A. Mar. 16, 2016). “Other evidence” includes “statements from the individual, medical sources, and any other sources that might have information about the individual’s symptoms, including agency personnel, as well as the factors set forth in [the] regulations.” Id. at *5; see also 20 C.F.R. § 404.1529(c)(3) (listing factors to consider, such as claimant’s daily activities; the location, duration, frequency, and intensity of pain or other symptoms; medication and other treatment taken or received to relieve pain or other symptoms; any measures other than treatment an individual uses or has used to relieve pain or other symptoms; and any other factors concerning an individual’s functional limitations and restrictions because of pain or other symptoms). Importantly, the ALJ is not to evaluate the claimant’s symptoms “based solely on objective medical evidence unless that objective medical evidence supports a finding that the individual is disabled.” SSR 16-3p, 2016 WL 1119029, at *4; see Arakas v. Comm’r, Soc. Sec. Admin. , 983 F.3d 83, 98 (4th Cir. 2020) (“We also reiterate the long-standing law in our circuit that disability claimants are entitled to rely exclusively on subjective evidence to prove the severity, persistence, and limiting effects of their symptoms.”).

Pursuant to SSR 16-3p, the ALJ must explain which of the claimant’s symptoms the ALJ found “consistent or inconsistent with the evidence in [the] record and how [the ALJ’s] evaluation of the individual’s symptoms led to [the ALJ’s] conclusions.” 2016 WL 1119029, at *8. The ALJ must evaluate the “individual’s symptoms considering all the evidence in [the] record.” Id.

After setting out Plaintiff’s RFC (R.p. 19), the ALJ summarized Plaintiff’s testimony as follows:

At the hearing, [Plaintiff] testified that she has been unable to work due to having several surgeries on her back, which continue to limit her activity severely. The claimant’s first surgery relieved some of [Plaintiff’s] neck pain; however, she then developed lower back pain with radicular symptoms down both legs. She testified that her lower back surgery was a failure and did not help at all. The spinal stimulator seemed to help at first, but [Plaintiff] had some falls that caused more damage to her back. [Plaintiff] continues to require narcotic pain medications. She has migraine headaches along with numbness and tingling of both arms and hands due to her neck. [Plaintiff] has medication side effects of sleepiness, fatigue, and trouble concentrating. She uses a walker for ambulation when she leaves the house, which was prescribed. She can stand and walk for about 2 minutes, then experiences pain and her legs give out. [Plaintiff] cannot perform any household chores, because they exacerbate her pain. Her husband has to help her bathe. [I]n a typical month, [Plaintiff] drives only about 3 times.

R.pp. 19-20.

Then, the ALJ stated that Plaintiff’s medically determinable impairments:

could reasonably be expected to cause some of the alleged symptoms; however, the [Plaintiff’s] statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.

R.p. 20 (emphasis added). This statement suggests that there were some symptoms reported by Plaintiff that could not reasonably be expected to be produced by her medically determinable impairments. However, the ALJ did not identify what those symptoms were.

The ALJ specifically discounted Plaintiff’s assertion that she uses a walker for ambulation when she leaves the house because he found that this testimony was inconsistent with the medical evidence. He discounted her testimony that her lower back surgery was a complete failure and did not help at all because he found this testimony was inconsistent with treatment records showing overall improvement in her lower back. R.p. 20. Next, the ALJ recited a summary of Plaintiff’s medical records and explained the weight he gave the opinions of Drs. Fishburne, Rhodes, and the state agency medical and psychological consultants and a third-party report from Plaintiff’s husband. R.pp. 20-23. However, there is no indication as to why the ALJ discounted Plaintiff’s other subjective complaints as discussed further below.

Although the ALJ’s decision to discount Plaintiff’s testimony that her lower back surgery was a “complete failure” appears to be supported by substantial evidence, it is unclear that the ALJ properly considered Plaintiff’s complaints of back pain. Even though the surgery may not have been a “complete failure,” Plaintiff continued to report significant lumbar spine pain in June and August 2016, examinations in June and August 2016 indicated tenderness at L4 and some decreased leg sensation, she underwent a L5-S1 epidural injection with minimal relief, she noted no benefit from physical therapy, and she pursued placement of a spinal cord stimulator. See R.pp. 748, 751, 754, 757, 806. Although Plaintiff reported improvement in her lower back pain after she underwent permanent spinal stimulator implantation in January 2017, she continued to complain of lower back pain including 7 out of 10 pain in August 2017 (R.p. 915), her providers continued to prescribe opioid pain medications throughout 2017 ( see R.pp. 909, 913, 921, 923, 924), and physical examination included notations in August 2017 about decreased sensation and an antalgic gait, (R.p. 916).

It is also unclear that the ALJ fully considered Plaintiff’s continued complaints of pain, numbness, and tingling in her upper extremities after her cervical spine surgery. Further, other than his conclusory statement that Plaintiff’s symptoms were not entirely consistent with other evidence in the record (R.p. 20), the ALJ does not explain how Plaintiff’s statements are inconsistent with other evidence in the record, such as her activities of daily living, her medications, and other measures taken to relieve pain such that it cannot be said that the ALJ properly considered all applicable factors pursuant to SSR 16-3p and 20 C.F.R. § 404.1529(c). Without additional discussion, it appears that the ALJ may have impermissibly discounted Plaintiff’s subjective complaints solely based on findings that objective medical evidence did not substantiate the degree of impairment related symptoms alleged.

The Commissioner asserts that the ALJ properly discounted Plaintiff’s testimony as to the side effects of her medications because she denied any side effects at a June 2016 medical appointment and denied fatigue at some appointments. See ECF No. 15 at 18. However, the ALJ did not explain in his decision why such claims were discounted. See Kirk v. Comm’r of Soc. Sec. Admin. , 987 F.3d 314, 321 (4th Cir. 2021) (noting courts may not accept counsel’s post hoc rationalizations for agency action; rather, such action must be upheld, if at all, on the basis articulated by the agency itself (citations omitted)); see also Bray v. Commissioner of Social Security Admin. , 554 F.3d 1219, 1225 (9th Cir. 2009) (“Long-standing principles of administrative law require us to review the ALJ’s decision based on the reasoning and factual findings offered by the ALJ - not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking.”); Golembiewski v. Barnhart , 322 F.3d 912, 916 (7th Cir. 2003) (“[G]eneral principles of administrative law preclude the Commissioner’s lawyers from advancing grounds in support of the agency’s decision that were not given by the ALJ.”); Additionally, although the medical record indicates that Plaintiff denied any side effects in June 2016 from Tramadol, Lyrica, and Cymbalta (R. 757), she testified at the hearing that she was taking Hydrocodone, Tizanidine, and Lyrica which caused sleepiness or fatigue; trouble concentrating, focusing, and staying focused; and a feeling of fogginess or being in a “zombie state all the time.” R.pp. 39-40.

In evaluating the intensity, persistence, and limiting effect of an individual’s symptoms, an ALJ is also supposed to consider “[f]actors that precipitate and aggravate the symptoms.” SSR 163p, 2016 WL 5180304, at *7-8. Plaintiff’s testimony (R.pp. 43-44, 46) that she could only stand and walk for two minutes at a time after which she experiences pain and her legs give out and that her husband had to help her bathe (she said she could not take a shower because she would fall down) appears to have been rejected by the ALJ, as he found that Plaintiff could stand and/or walk for about four hours in an eight-hour workday. However, without an explanation from the ALJ, it is unclear how the evidence was inconsistent with Plaintiff’s allegations.

It is also unclear why the ALJ discounted Plaintiff’s testimony concerning her limited activities, including an alleged inability to perform any household chores. The Commissioner appears to argue that Plaintiff’s comment to her physician in October 2017, indicating she was traveling north to help her daughter with a new baby and would return in 2 or 3 months, was inconsistent with Plaintiff’s testimony that she was not able to really do anything. However, the ALJ did not explain this, and it is further unknown whether Plaintiff’s ability to visit her daughter in 2017 indicated that she could engage in activities “in an ordinary work setting on a regular and continuing basis,” meaning “8 hours a day, for 5 days a week, or an equivalent work schedule.” SSR 96-8p, 1996 WL 37814, at *2. Here, it is unknown whether the ALJ considered the extent that Plaintiff performed such activities.

It is also noted that, because it cannot be determined that the ALJ properly evaluated Plaintiff’s subjective complaints, it is unclear that the RFC determined by the ALJ is supported by substantial evidence. For example, although the ALJ stated he gave great weight to the opinions of the state agency medical and psychological consultants, he found no basis for the conclusion of the state agency medical consultants that Plaintiff required a restriction against exposure to hazards (which may have been due to Plaintiff’s medications including opioids). However, the ALJ failed to explain his reasoning. See R.p. 23.

Although the ALJ generally discounted Plaintiff’s testimony concerning her need to use a wheelchair and her claim that her lower back surgery was a complete failure and did not help at all (R.p. 20), it is unclear from the decision why he discounted Plaintiff’s testimony concerning her continued cervical and lumbar back pain, the side effects of her medications, her inability to stand and walk, and her inability to perform activities. See SSR 16-3p, 2017 WL 5180304, at *8. Without further explanation from the ALJ regarding how he reconciled any inconsistencies in the record and reached his conclusions, the Court is unable to conduct meaningful appellate review of the ALJ’s decision, such that remand is warranted.

B. Remaining Allegations of Error

In light of the recommendation to remand for further consideration, the undersigned declines to address the remaining claims of error, as they may be rendered moot on remand. See Boone v. Barnhart , 353 F.3d 203, 211 n.19 (3d Cir. 2003) (remanding on other grounds and declining to address claimant’s additional arguments). However, as part of the overall reconsideration of this claim upon remand, the ALJ should consider Plaintiff’s remaining allegations of error. See Hancock v. Barnhart , 206 F.Supp. 2d 757, 763 n.3 (W.D. Va. 2002) (noting the ALJ’s prior decision has no preclusive effect, as it is vacated and the new hearing is conducted de novo).

IV. RECOMMENDATION

It is RECOMMENDED that the decision of the Commissioner be REVERSED and REMANDED pursuant to 42 U.S.C. § 405(g) for further administrative review.

Notice of Right to File Objections to Report and Recommendation

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

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

Robin L. Blume, Clerk

United States District Court

Post Office Box 835

Charleston, South Carolina 29402

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).

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Notes:

Although the ALJ discussed the placement of Plainitff’s temporary and permanent spinal cord stimulator (R.p. 21), he does not reference Dr. Levin’s treatment records or medical source statement.

The ALJ found that Plaintiff had severe impairments of degenerative disc disease status post ALIF surgery and cervical fusion and had nonsevere impairments of obesity and hypertension. R.p. 17.

Although the use of the word “some” may not be error, see, e.g. Thomas v. Saul, No. 3:18-cv-700, 2019 WL 3801850, at *13 (E.D. Va. July 25, 2019) (finding ALJ does not err at step one of Craig analysis by using word “some” and citing cases where courts have held the same), report and recommendation adopted , 2019 WL 3779515 (E.D. Va. Aug. 12, 2019), the ALJ did not later fully address which symptoms Plaintiff’s impairments could not reasonably be expected to produce.

Although the ALJ appears to have provided some explanation (the opinions of Dr. Fishburne and Rhodes) for his determination that Plaintiff was limited to understanding, remembering, and carrying out simple instructions ( see R.pp. 22-23), he does not specifically explain how he determined Plaintiff’s physical RFC. It may be that the ALJ determined this RFC based on the findings of state agency physician Dr. Stroud. However, the ALJ gave great weight to all of the state agency opinions, even though there are differences in the opinions. Specifically, Dr. Stroud found more physical activity restrictions than Dr. McCall, including that Dr. Stroud thought Plaintiff could only stand and/or walk for about four hours (instead of six hours) a day, had more postural restrictions, and had more restrictions as to hazards. Dr. Neboschick found that Plaintiff did not have a severe mental impairment, but Dr. Jackson opined that Plaintiff’s severe mental impairments resulted in moderate limitations in Plaintiff’s ability to concentrate, persist, or maintain pace. The difference may be based on additional medical records having been reviewed by Drs. Stroud and Jackson, but no explanation was given by the ALJ.

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