South Carolina Cases June 02, 2021: Derek M. v. Saul

Case Description

1

REPORT AND RECOMMENDATION

SHIVA V. HODGES UNITED STATES MAGISTRATE JUDGE

This appeal from a denial of social security benefits is before the court for a Report and Recommendation (“Report”) pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § i383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying his claims for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). 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 that the Commissioner's decision be affirmed.

2

I. Relevant Background

A. Procedural History

On September 3, 2015, Plaintiff protectively filed applications for DIB and SSI in which he alleged his disability began on May 31, 2014. Tr. at 176, 177, 285-91, 292-302. His applications were denied initially and upon reconsideration. Tr. at 206-11, 215-20. On January 18, 2018, Plaintiff had a hearing before Administrative Law Judge (“ALJ”) Paula Garrety. Tr. at 90127 (Hr'g Tr.). The ALJ issued an unfavorable decision on March 29, 2018, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 178-98. Subsequently, the Appeals Council remanded the claim to the ALJ for a second hearing. Tr. at 199-203. A second hearing was held on August 7, 2019. Tr. at 60-89 (Hr'g Tr.). The ALJ issued another unfavorable decision on September 30, 2019. Tr. at 13-35. The Appeals Council subsequently 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 August 5, 2020. [ECF No. 1].

B. Plaintiff's Background and Medical History

1. Background

Plaintiff was 48 years old at the time of the most recent hearing. Tr. at 65. He completed eighth grade. Tr. at 101. His past relevant work (“PRW”)

3

was as an iron worker. Tr. at 97. He alleges he has been unable to work since May 31, 2014. Tr. at 97.

2. Medical History

Plaintiff's remote medical history included left knee repair in 2003 and right knee replacement in 2008. Tr. at 572.

Plaintiff presented to neurosurgeon Robert A. Sabo, M.D. (“Dr. Sabo”), for evaluation of increasing neck and right arm pain on February 19, 2010. Tr. at 428-30. After referring Plaintiff for magnetic resonance imaging (“MRI”) of his cervical spine, Dr. Sabo assessed right cervical radiculopathy with right C6-7 herniated nucleus pulposus, and Plaintiff opted to proceed with anterior cervical discectomy and fusion (“ACDF”) at ¶ 6-7. Tr. at 426. On March 24, 2010, Plaintiff underwent anterior cervical discectomy with instrumental arthrodesis at the C6-7 level, microsurgical decompression, Atlantis Vision plating, and harvesting of left anterior iliac crest bone grafts. Tr. at 434-35. X-rays of his cervical spine on April 27, July 6, and October 4, 2010, were consistent with prior ACDF at ¶ 6-7 and showed no evidence of hardware failure, acute fracture, or soft tissue swelling. Tr. at 436-38. Dr. Sabo authorized Plaintiff to return to work at full duty on October 5, 2010. Tr. at 421.

On February 13, 2015, Plaintiff presented to the emergency room (“ER”) at Southern Ocean Medical Center (“SOMC”), after hearing a pop in

4

his neck and developing severe, constant pain. Tr. at 483. He described severe pain in the left trapezius and left side of his cervical spine that that radiated to his right arm, elbow, forearm, and hand with movement. Id. He endorsed increased pain in his neck upon turning his head to the right and left, lifting his head, and flexing and extending his neck. Tr. at 484. Nurse practitioner Sonia Rich-Mazzeo (“NP Rich-Mazzeo”) observed moderate muscle spasm in the left posterior neck and moderate acute decreased range of motion (“ROM”) due to pain. Id. Cervical x-rays showed no acute findings and indicated Plaintiff's anterior plate and screw fusion were in anatomic alignment. Tr. at 484, 499. NP Rich-Mazzeo assessed cervical radiculopathy and acute cervical strain and prescribed Naproxen, Flexeril, Percocet, and Prednisone. Tr. at 484-85.

Plaintiff presented to the ER at SOMC for back pain on June 14, 2015. Tr. at 454. He reported having bent over and felt a pop in his back while working out. Tr. at 454. He described severe pain in his bilateral lower lumbar spine and sacroiliac (“SI”) joints. Id. Nurse Practitioner Amy Meredith (“NP Meredith”) observed Plaintiff to have moderate soft tissue tenderness in the bilateral central and lower lumbar area and moderately limited ROM of the lumbar spine with decreased flexion, extension, and bilateral lateral bending. Tr. at 458. X-rays of Plaintiff's lumbar spine showed no compression fracture or subluxation and only mild degenerative changes.

5

Tr. at 479. NP Meredith assessed an acute lumbar strain and released Plaintiff with prescriptions for Vicodin and Flexeril. Tr. at 458-59.

On July 13, 2015, Plaintiff presented to John Rajapakse, M.D. (“Dr. Rajapakse”), with complaints of diffuse neck pain, anxiety, and thought disturbance. Tr. at 570. Dr. Rajapakse observed Plaintiff to be in distress secondary to pain, to show prolonged expiratory phase, to have tenderness to his thyroid and cervical spine, and to demonstrate decreased flexion, extension, and lateral bending. Tr. at 571. He assessed neck pain, tobacco use disorder, unspecified asthma, attention deficit disorder, and anxiety state. Id. He prescribed Tramadol and Xanax and advised Plaintiff to follow a low sodium and low cholesterol diet and to seek a psychiatric consultation. Tr. at 571-72.

Plaintiff complained of neck pain, sexual dysfunction, and anxiety on August 13, 2015. Tr. at 573. Dr. Rajapakse noted Plaintiff had prolonged expiratory phase, was tender to the cervical spine, and was agitated, anxious, and in distress secondary to pain. Tr. at 574. He refilled Tramadol, increased Xanax from 0.5 mg to 1 mg, dispensed Viagra, recommended smoking cessation, advised a low sodium and low cholesterol diet, and ordered orthopedic and urology consultations. Tr. at 574-75.

Plaintiff complained of dyspnea, anxiety, and pain in his cervical and lumbar spines on September 15, 2015. Tr. at 576. Dr. Rajapakse noted

6

Plaintiff was in distress secondary to pain, was agitated and anxious, had a prolonged expiratory phase, was tender at the cervical and lumbar spines and facet joints, had decreased flexion and extension, and had positive straightleg raising (“SLR”) test bilaterally. Tr. at 577. He prescribed Advair, Cialis, and ProAir and refilled Tramadol and Xanax. Id.

On October 19, 2015, state agency medical consultant Melvin Golish, M.D. (“Dr. Golish”), reviewed the record and assessed Plaintiff's physical residual functional capacity (“RFC”) as follows: occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds; stand and/or walk for a total of about six hours in an eight-hour workday; sit for a total of about six hours in an eight hour workday; occasionally balance, stoop, kneel, crouch, crawl, and climb ramps or stairs; never climb ladders, ropes, or scaffolds; and avoid concentrated exposure to extreme cold, wetness, humidity, and hazards. Tr. at 132-34, 141-43. A second state agency medical consultant, Arvind Chopra, M.D. (“Dr. Chopra”), reviewed the evidence and assessed the same physical RFC on January 28, 2018. Compare Tr. at 132-34 and 141-43, with Tr. at 156-59 and 170-73.

On October 30, 2015, Plaintiff reported pain in his lumbar and cervical spines, chronic anxiety, dyspnea, and insomnia. Tr. at 546. Dr. Rajapakse noted Plaintiff was in distress secondary to pain, agitated, anxious; had prolonged expiratory phase; was tender to palpation of the cervical and

7

lumbar spines; demonstrated decreased flexion and extension; and had positive bilateral SLR test. Tr. at 547. He assessed primary osteoarthritis, tobacco use, moderate persistent asthma, body mass index (“BMI”) between 30.0 and 30.9, sexual dysfunction, attention deficit hyperactivity disorder (“ADHD”), and anxiety disorder. Id. He refilled Tramadol and Xanax and prescribed Viagra. Id.

Plaintiff return to Dr. Sabo on November 12, 2015. Tr. at 560. He reported constant, moderate-to-severe bilateral cervical pain that was worse on the right than the left. Id. He stated his pain had progressively worsened since May 2014. Id. He noted his pain was associated with stiffness, headaches, and right dorsal upper extremity pain that radiated to the right shoulder. Id. He endorsed upper extremity numbness and weakness and paresthesia in his bilateral hands. Id. He stated his symptoms were aggravated by flexion, extension, rotation, and lying down and were affecting his activities of daily living (“ADLs”) and sleep. Id. Dr. Sabo observed Plaintiff to have decreased sensation to light touch in the first and second digits on the right, spasms to the bilateral trapezii, and severely restricted anterior flexion, extension, and bilateral lateral rotation. Tr. at 561. He assessed cubital tunnel syndrome, cervical radiculopathy, and status post-surgical cervical spinal fusion. Tr. at 562. He instructed Plaintiff to continue

8

a home exercise program and ordered a computed tomography (“CT”) scan and an MRI of Plaintiff's cervical spine. Id.

Plaintiff presented to the ER at SOMC with a headache on December 3, 2015. Tr. at 511. He endorsed nausea and described pressure, throbbing, and fullness in the right hemicranial region that had awakened him the prior morning. Id. Justin Scolnick, D.O. (“Dr. Scolnick”), recorded normal findings on physical exam. Tr. at 512. A CT scan showed no acute findings. Id. Plaintiff's pain resolved upon administration of high-flow oxygen. Tr. at 514. Dr. Scolnick assessed an episodic cluster headache and instructed Plaintiff to rest and follow up with a neurologist. Tr. at 514-15.

Plaintiff returned to the ER at SOMC with a headache on December 6, 2015. Tr. at 526. He complained his headache had been ongoing for four days and was associated with blurred vision, phonophobia, nausea, weakness, and vomiting. Id. He also endorsed sinus pressure, fever, muscle aches, ear pain, and sore throat. Id. A chest x-ray was normal. Tr. at 527. Ronald Klebacher, D.O. (“Dr. Klebacher”), assessed episodic cluster headache resistant to treatment and acute migraine headache without aura. Tr. at 529. He prescribed Tramadol. Id.

Plaintiff presented to Dr. Rajapakse for treatment of his headache on December 7, 2015. Tr. at 543. He described an acute headache that was located diffusely with initial onset of symptoms two weeks prior. Id. He

9

stated his symptoms were worsened by stress. Id. He also endorsed dull, aching pain in his lumbosacral spine that was exacerbated by activity and alleviated by rest, position changes, and medication. Id. Dr. Rajapakse noted Plaintiff was agitated; had prolonged expiratory phase; was tender to palpation of the thyroid, cervical spine, lumbar spine, and facet joint; had decreased flexion, extension, lateral bending, and rotation; and had positive bilateral SLR test. Tr. at 544. He assessed headaches, primary osteoarthritis, moderate persistent asthma, BMI between 29.0 and 29.9, tobacco use, ADHD, and anxiety disorder. Id. He prescribed Maxalt for headaches and refilled Tramadol and Xanax. Id. He noted Plaintiff needed a neurology evaluation as soon as possible. Tr. at 545.

On December 23, 2015, Plaintiff underwent a CT scan of his cervical spine that showed mild discogenic disease, no significant spondylolisthesis, no significant spinal stenosis, and intact facet joints without significant spondylotic changes. Tr. at 549-50. An MRI of Plaintiff's cervical spine revealed post-surgical fusion changes at ¶ 6-7 with no significant spinal stenosis, cord impingement, or foraminal narrowing. Tr. at 551-52. It indicated mild discogenic disease most prominent at ¶ 3-4 and C5-6. Tr. at 552.

Plaintiff presented to Victoria Miller, Ph.D. (“Dr. Miller”), for a consultative mental status exam (“MSE”) on February 23, 2016. Tr. At 565

10

67. He reported having been prescribed Xanax for complaints of stress due to family conflict. Tr. at 565. He denied having received psychiatric treatment or participated in therapy. Id. He endorsed problems with adjustment and symptoms of dysphoria and anxiety. Id. He denied thoughts of harming himself or others, hallucinations, paranoia, mania, and delusions. Id. He said he had difficulty with sleep, diminished energy, and social withdrawal. Id. He denied a history of learning problems. Tr. at 566. He reported a history of incarceration from 1998 to 2006 and polysubstance abuse prior to 1998. Id. Dr. Miller observed Plaintiff as appearing somnolent; ambulating very slowly; casually dressed and adequately groomed; having a cooperative disposition; having slow, but goal-directed thought processing; demonstrating lethargic motor behavior; making good eye contact; and fully oriented. Id. She noted Plaintiff was able to name the current and former President, spell “world” forward and backward, count by sevens to 28, multiple nine times six, register three objects immediately, recall two objects after a five-minute delay, and remember five digits forward and backwards. Tr. at 567-68. She stated Plaintiff's mood was neutral with blunted affect and he had fair judgment, insight, and impulse control with no evidence of thought disorder and denied suicidal and homicidal ideation. Tr. at 568. Dr. Miller noted Plaintiff “c[ould] do very little independently with regard to day-to-day [activities of daily living].” Id. She stated Plaintiff had reported receiving help

11

from his wife with grooming, bathing, and hygiene and spending most of his time doing very little. Id. She indicated Plaintiff relied on his wife for support and to give him medications throughout the day. Id. She related that Plaintiff described himself as having trouble functioning, feeling overwhelmed, and suffering with feelings of anxiety and dysphoria, but being unable to seek psychiatric treatment, given his limited insurance benefits. Id. She indicated Plaintiff reported developing psychiatric symptoms after he stopped working due to physical limitations, getting along well with his family, and having a good support system and denied social or interpersonal difficulties. Id. She stated Plaintiff had adequate mentation and could manage his own funds. Id. She assessed adjustment disorder with mixed anxiety and depressed mood and polysubstance use disorder and provided a guarded prognosis. Id.

On April 20, 2016, state agency psychological consultant Thomas Yared, M.D. (“Dr. Yared”), reviewed the record and assessed Plaintiff's mental impairments as non-severe. Tr. at 155, 169.

Plaintiff participated in outpatient psychiatric treatment at AtlantiCare Behavioral Health from May 7 to July 27, 2016. Tr. at 582-608. He began treatment after having taken approximately 70 Xanax with alcohol, Tramadol, and Gabapentin and being found unconscious. Tr. at 587. His diagnoses included major depressive disorder (“MDD”), single episode, moderate, with anxious distress and benzodiazepine dependence in

12

remission. Tr. at 590. He generally denied suicidal thoughts, but reported a history of past suicide attempts and endorsed sleep disturbance, difficulty concentrating, perceived traumatic loss, and drug/alcohol abuse during some visits. See Tr. at 582-86, 591. Mental status exams reflect normal findings, aside from depressed, anxious, and dysphoric mood. Tr. at 600, 601, 606.

On February 7, 2017, Plaintiff presented to physician assistant James Kincel (“PA Kincel”) to establish treatment after having recently moved from New Jersey. Tr. at 649. He complained of chronic neck pain with a history of cervical fusion. Id. PA Kincel noted cervical paraspinal muscle tenderness with decreased ROM. Id. He assessed mild persistent asthma with acute exacerbation, chronic pain, cervicalgia, nonintractable migraines, osteoarthritis, and Eustachian tube dysfunction and screened Plaintiff for lipoid disorders and diabetes. Tr. at 649-50. He prescribed Advair, Ventolin, Cyclobenzaprine, Nortriptyline, Gabapentin, Sumatriptan, Butalbital, and Diclofenac and referred Plaintiff to a pain management physician, a neurologist, and an ear, nose, and throat (“ENT”) specialist. Tr. at 650.

On March 10, 2017, Plaintiff presented to ENT specialist Hussain G. Malik, M.D. (“Dr. Malik”). Tr. at 639. He reported a six-month history of bilateral ear discharge and difficulty hearing, but denied tinnitus, pain, and dizziness. Id. He indicated he had been exposed to loud noises while employed as an iron worker in the past. Id. He complained of nasal discharge,

13

headaches in the back of his head, and a history of perforation of the nasal septum due to chemical exposure. Id. He endorsed normal abilities to smell, taste, eat, drink, and swallow. Id. Dr. Malik noted right-sided deviation and a large perforation to the nasal septum. Tr. at 640. Insertion of a flexible nasopharyngoscope through Plaintiff's right nasal cavity confirmed deviation of the nasal septum with perforation, as well as hypertrophic nasal turbinates, mucoid secretions, and swelling to both vocal cords. Id. Dr. Malik assessed bilateral serous otitis media, deviated nasal septum, chronic sinusitis, hypertrophic nasal turbinates, large septal perforation, hypertrophic lymphoid tissue at the base of the tongue, and chronic laryngitis with history of smoking a pack of cigarettes a day. Tr. at 640-41. He prescribed Keflex, Loratadine, and Flonase and scheduled Plaintiff to follow up for a complete audiogram. Tr. at 641.

Plaintiff reported no change in his hearing upon follow up with Dr. Malik on April 26, 2017. Tr. at 636. An audiogram showed moderate bilateral sensorineural hearing loss with type A-c tympanogram in the right ear. Id. Dr. Malik indicated Plaintiff would benefit from hearing aids. Tr. at 637. He instructed Plaintiff to continue Loratadine and Flonase. Id.

On July 31, 2017, Plaintiff denied further hearing change and reported he had been unable to afford hearing aids. Tr. at 633. Dr. Malik removed

14

cerumen from Plaintiff's bilateral ears and referred him to Hear Now for possible financial assistance in obtaining hearing aids. Tr. at 634.

On September 5, 2017, Plaintiff reported that Breo seemed to be less effective than Advair. Tr. at 646. He also complained of an itchy rash. Id. PA Kincel assessed mild persistent asthma with acute exacerbation, other chronic pain, cervicalgia, nonintractable migraines, and tinea corporis. Id. He increased Breo Ellipta to 200 mcg, prescribed Lotrisone cream, and continued Plaintiff's other medications. Tr. at 647.

Plaintiff underwent electromyography (“EMG”) and nerve conduction studies (“NCS”) on September 29, 2017, that showed electrodiagnostic evidence of a prior right ulnar nerve injury with no evidence of ongoing denervation. Tr. at 625. It indicated moderate-to-severe bilateral carpal tunnel syndrome (“CTS”). Id. It suggested probable peripheral polyneuropathy, sensory greater than motor. Id. It showed no evidence of upper cervical radiculopathy or myopathy, but did not rule out C8-T1 radiculopathy. Id.

On October 6, 2017, chest x-rays showed no acute cardiopulmonary process. Tr. at 915.

Plaintiff followed up with Arif Khan, M.D. (“Dr. Khan”), to discuss the EMG/NCS results on October 13, 2017. Tr. at 616. Dr. Khan noted the EMG/NCS revealed median neuropathy, but no cervical radiculopathy or

15

myelopathy. Id. Plaintiff reported his neck pain had resolved with cervical epidural steroid injection (“ESI”) and his headaches had been reduced by occipital nerve blocks, although they continued to occur daily. Id. He complained of left arm radicular pain, right hand numbness, and low back pain with patchy numbness from L4 to S1. Id. He requested a lumbar ESI. Id. Dr. Khan observed Plaintiff to be in mild distress and to have reduced lumbar flexion and extension of the cervical and lumbar spines, positive facet loading, reduced heel and toe walk, bilateral L5 sensory deficits, limited thigh and leg raise status post-right knee replacement, limited ROM of the right knee, tenderness of the bilateral occipital ridge, positive paravertebral spasm and tenderness, positive trigger points, positive Tinel's sign bilaterally, restricted ROM of the right shoulder, and positive SLR test bilaterally. Tr. at 617-19. He assessed chronic pain syndrome, occipital neuralgia of the right side, spinal cord stimulator status, lumbar radicular syndrome, neck pain, failed back syndrome of the cervical spine, lumbosacral back pain, right anterior knee pain, status post-total right knee replacement, uncomplicated opioid dependence, and bilateral CTS. Tr. at 619. He continued Gabapentin, Cyclobenzaprine, Diclofenac Sodium, Nortriptyline, and Pantoprazole and referred Plaintiff for x-rays of his lumbar spine. Id. He confirmed that the EMG showed CTS. Tr. at 620. He referred Plaintiff for aquatic therapy evaluation and treatment. Tr. at 621.

16

On October 20, 2017, x-rays of Plaintiff's lumbar spine showed no abnormalities. Tr. at 624.

Dr. Khan administered a left L4-5 interlaminar ESI on October 23, 2017. Tr. at 626-27.

On October 26, 2017, Plaintiff complained of increased back pain after hearing a pop in his middle to lower back while walking down the stairs. Tr. at 644. He indicated the doctor in the ER had indicated his pain was related to muscle spasm. Id. He stated he had been seeing a pain management provider, but had not recently seen a spine specialist. Id. Plaintiff also complained of coughing, wheezing, and a lot of daytime sleepiness and noted his pulmonologist had ordered a sleep study. Id. He endorsed feeling down and depressed due to chronic pain. Id. Mr. Kincel noted depressed mood and otherwise normal findings on general exam. Id. He prescribed Cymbalta, refilled Plaintiff's other medications, and referred him to a urologist and an orthopedic surgeon. Tr. at 645.

Plaintiff presented to James Kerrigan, M.D. (“Dr. Kerrigan”), for evaluation of migraines on October 31, 2017. Tr. at 610. Plaintiff had documented on a headache calendar 15-20 headaches per month lasting from four to six hours. Id. He stated Topamax had caused him difficulty waking in the morning. Id. He noted he tended to fall asleep soon after taking his medication and often fell asleep while watching television. Id. He reported

17

having received injections from his pain management physician, but indicated they had failed to reduce the frequency of his headaches. Tr. at 610-11. Dr. Kerrigan recorded normal findings on physical exam. Tr. at 61213. He assessed intractable chronic common migraine without aura, refilled Sumatriptan, prescribed extended-release Topamax, and recommended Botox injections. Tr. at 610.

Dr. Kerrigan administered Botox injections for treatment of Plaintiff's migraines on November 30, 2017. Tr. at 683.

On January 5, 2018, an MRI of Plaintiff's lumbar spine showed a very small right-sided disc protrusion with annular fissure at ¶ 5-S1, degenerative disc disease (“DDD”) at ¶ 12-L1 and L5-S1, and no severe canal or neuroforaminal stenosis. Tr. at 665-66. An MRI of Plaintiff's cervical spine revealed status post-fusion at ¶ 6-7 without canal neuroforaminal stenosis at that level, spurring and disc bulging at ¶ 5-6, a small central disc bulge protrusion at ¶ 7-T1, no severe canal stenosis, no abnormal signal in the cord, and no gross evidence of pathological enhancement contrast. Tr. at 667-68.

Plaintiff also presented to certified functional capacity evaluator Stephen Uetz (“Mr. Uetz”) for a functional capacity evaluation (“FCE”) on January 8, 2018. Tr. at 653-61. Prior to the evaluation, Plaintiff rated pain in his lumbar spine, bilateral paraspinals, and hips as a five on a 10-point scale and endorsed a slight headache on the right superior aspect of his head. Tr.

18

at 653. During testing, he rated his pain as a six to seven and described pain in the right superior aspect of his head, his left cervical paraspinals, bilateral shoulders, proximal trapezii, scapulae, left biceps to elbow, wrists, forearms, arms, thoracic spine, lumbar spine, bilateral paraspinals, hips, right knee, left lateral quadriceps, and left calf. Id. After the evaluation, he rated his pain as an eight and claimed he was sore throughout his body. Id. Mr. Uetz noted Plaintiff tolerated sitting for four hours, standing for half an hour, and walking for an hour, for a total of five-and-a-half hours. Id. However, he specified “[i]f the individual gave a consistent effort and their pain increased post-evaluation when compared to the pre-evaluation, then I am required to deduct .5 to 1.5 hour off of the total workday tolerance level.” Id. He deducted half an hour, determining Plaintiff's maximum workday tolerance level to be five hours. Id. Relying on the Social Security Administration's (“SSA's”) definition of sedentary work, Mr. Uetz concluded Plaintiff's physical demand level was below sedentary, as his sitting tolerance was four hours at 30-minute durations and he was unable to work an eight-hour day. Id. His report further reflected his impression that Plaintiff was capable of standing for one hour at five-minute durations; walking occasional, short distances for two hours; lifting less than 10 pounds; and pushing and pulling 14.5 pounds. Tr. at 655. Plaintiff demonstrated abilities for occasional bending/stooping, simple and fine grasping, bilateral forward reaching, and static positions of

19

the neck. Id. He could never squat/crouch, kneel, crawl, or balance. Id. He could rarely climb stairs, grasp firmly with the bilateral hands, reach overhead bilaterally, and flex and rotate the neck. Id. Mr. Uetz noted Plaintiff did not attempt squatting, kneeling, or crawling. Tr. at 659. He considered Plaintiff to have put forth consistent effort. Tr. at 660.

On January 12, 2018, Plaintiff reported frequent headaches, bilateral lower extremity numbness and tingling, and worsening neck and lower back pain. Tr. at 879. Allister Williams, M.D. (“Dr. Williams”), noted normal findings, aside from positive tenderness to palpation over Plaintiff's bilateral facet joints at the L4-5 and L5-S1 levels and pain in the region with hyperextension. Tr. at 880. He interpreted the MRI results to show DDD at ¶ 5-S1 with right-sided disc bulge/protrusion and post-surgical fusion at ¶ 6-7 with disc spurring and disc bulge at ¶ 5-6 that were similar to the prior study. Id. He assessed neck pain and lumbar radiculopathy. Id. He explained to Plaintiff that the only option that might provide some relief to his low back was transforaminal lumbar interbody fusion (“TLIF”) at the L5-S1 level, which had a 50% chance or providing relief and a 50% chance of providing no relief or worsening his symptoms. Id.

Plaintiff complained of back pain on February 23, 2018. Tr. at 873. He informed Dr. Williams that he was interested in pursuing surgery, but was reluctant to proceed because of his wife's apprehension. Id. Dr. Williams

20

recorded positive tenderness to palpation over Plaintiff's bilateral facet joints at the L4-5 and L5-S1 level and pain with hyperextension, but otherwise normal findings. Tr. at 874. He stated Plaintiff was a candidate for TLIF at ¶ 5-S1, but had probably a 50% chance of improvement. Id. Plaintiff opted to hold off on surgery. Id. Dr. Williams prescribed a transcutaneous nerve epidural stimulation (“TENS”) unit and referred Plaintiff to a pain management physician. Tr. at 874-75.

On May 1, 2018, Plaintiff reported a six- to seven-year history of bilateral hand pain and numbness. Tr. at 870. He described pain in both wrists and numbness over the median nerve distribution of both hands that was worse on the right. Tr. at 871. John Paglia, M.D. (“Dr. Paglia”), observed flexion of the fourth and fifth digits of the right hand; no sensation over the nerve distribution of the right hand, as compared to the left; diminished sensation of the median nerve on the right, as compared to the left; positive Tinel's, median nerve compression, and Phalen's tests of both wrists; weakened grip strength on the right, as compared to the left; no evidence of thenar wasting; equal bilateral pulses; positive Tinel's sign at the left elbow; negative Phalen's sign at both elbows; and negative Tinel's sign at the right elbow. Id. He assessed bilateral CTS symptomatically worse on the right, prior right ulnar nerve injury, chronic neck pain status post-cervical fusion, questionable polyneuropathy, and inability to rule out cervical radiculopathy.

21

Id. Dr. Paglia informed Plaintiff of options that included referral to an upper extremity specialist for possible ulnar nerve tendon transfer, referral to neurology for workup of polyneuropathy, further workup and treatment of the cervical spine, and carpal tunnel release. Tr. at 872. He was unable to guarantee results if Plaintiff opted to proceed with carpal tunnel release, as his symptoms could be multifactorial. Id. Plaintiff indicated a desire to proceed with carpal tunnel release, and Dr. Paglia advised him to follow up after receiving medical clearance for surgery. Id.

On May 18, 2018, Plaintiff complained of low back pain that radiated into his legs and indicated he was interested in back surgery. Tr. at 865. Dr. Williams noted tenderness to palpation over the bilateral facet joints at Plaintiff's L4-5 and L5-S1 levels and pain in the region with hyperextension. Id. He indicated Plaintiff had grossly intact sensation to light touch in the distributions of the sural, saphenous, superficial peroneal, deep peroneal, and tibial nerves. Id. He observed Plaintiff to have negative bilateral SLR test, negative bilateral femoral nerve stress test, and normal knee and ankle jerk reflexes. Id. He assessed DDD at ¶ 5-S1 with lower extremity radiculopathy, secondary to foraminal stenosis. Tr. at 866. He stated he would consider proceeding with surgery after Plaintiff stopped smoking. Id.

Plaintiff presented to Dr. Paglia for evaluation of CTS on May 22, 2018. Tr. at 860. Dr. Paglia noted that EMG had shown moderate-to-severe right

22

CTS. Tr. at 862. Plaintiff endorsed numbness over his median nerve distribution and pain in his hand, despite having used a splint for approximately six months. Id. He reported a history of ulnar nerve injury at the elbow with resultant numbness over the ulnar nerve distribution of the right hand. Id. Dr. Paglia noted slight flexion of the two ulnar digits, consistent with ulnar nerve injury. Id. He recorded intact sensation over the medial and radial nerve distribution. Id. He observed positive Tinel's, median nerve compression, and Phalen's tests on the right. Id. He assessed bilateral CTS, most problematic on the right, and bilateral wrist pain. Id. He advised Plaintiff of possible treatment options, and Plaintiff opted to proceed with right carpal tunnel release surgery. Tr. at 863.

On May 23, 2018, Plaintiff complained of left shoulder pain that had been ongoing for many years. Tr. at 858. He denied specific injury to his shoulder, but indicated he had been an iron worker for many years and had developed the shoulder pain following cervical discectomy and fusion. Id. He described worsened left shoulder pain over the prior year and indicated his shoulder felt as if it were popping in and out. Id. He identified his left midclavicle as the most painful area and indicated his pain radiated down into his biceps and became sharp upon reaching to the front or back. Id. Maurizio Cibischino, M.D. (“Dr. Cibischino”), indicated Plaintiff had some very mild superior migration over the humeral head relative to the glenoid, but no

23

degenerative change. Tr. at 859. He stated Plaintiff had near full ROM of his left shoulder with significant pain above 90 degrees of forward flexion and abduction. Id. He noted 45 degrees of active external rotation and internal rotation from his thumb to L3. Id. Plaintiff endorsed pain with anterior and posterior labral load. Id. Dr. Cibischino stated Plaintiff had positive apprehension, definite Speed's test, and positive O'Brien's test. Id. He recorded tenderness over the bicipital groove, lateral shelf, and anteriorly and deeply medial to the biceps. Id. He observed normal findings as to Plaintiff's right shoulder. Id. He assessed left shoulder pain, clavicle pain, and impingement syndrome of the left shoulder, prescribed Mobic, and ordered an MRI of the left shoulder. Id.

Dr. Paglia performed right carpal tunnel release surgery on May 24, 2018. Tr. at 903-04.

Plaintiff denied pain, but complained of some numbness in his fingers during a follow up visit on May 29, 2018. Tr. at 855. Dr. Paglia observed Plaintiff's wound to be healing well and noted slightly diminished sensation over the median nerve distribution of the right hand. Tr. at 856. He indicated Plaintiff was able to oppose the thumb to the fifth finger and flex and extend the digits well. Id. He applied new dressing and instructed Plaintiff to return the following Friday for suture removal. Id.

24

On June 4, 2018, an MRI of Plaintiff's left shoulder showed distal rotator cuff tendinosis and tiny intrasubstance partial tears, no full-thickness rotator cuff tear, type-3 acromion that could contribute to impingement, and proximal biceps tendinosis. Tr. at 908.

Plaintiff returned to Dr. Cibischino to discuss the MRI results on June 6, 2018. Tr. at 852. He reported slight improvement with Mobic, but continued pain in his left shoulder that bothered him all the time. Id. He denied pain when his arm was at his side and said he developed pain when he moved it forward and across his body. Id. Dr. Cibischino noted the MRI showed a partial thickness tear of the rotator cuff supraspinatus. Id. He stated Plaintiff had near full ROM of the left shoulder with a 10 to 20% lack of full flexion and abduction on the proximal side, as compared to the contralateral side. Tr. at 853. He indicated Plaintiff had strongly positive secondary impingement, mildly positive Speed's test, and tenderness anteriorly and laterally. Id. He administered a cortisone injection to Plaintiff's left subacromial space and referred him to physical therapy. Id.

On June 8, 2018, Plaintiff continued to report numbness over the right median nerve distribution, but denied pain and endorsed improvement over his preoperative state. Tr. at 849. Dr. Paglia observed Plaintiff to have a clean wound with no signs of infection, good ROM of the digits, and

25

diminished sensation of the digits of his right hand, as compared to his left. Tr. at 850. He removed Plaintiff's sutures. Id.

Plaintiff returned to Dr. Paglia for evaluation of left hand pain and CTS on July 6, 2018. Tr. at 846. He reported some residual numbness following right carpal tunnel release. Id. Dr. Paglia noted no obvious swelling or deformity to Plaintiff's left upper extremity, no tenderness about the left hand or wrist compared to the right, full ROM of the digits on the left hand, normal grip strength bilaterally, and positive Tinel's, median nerve compression, and Phalen's tests. Tr. at 847. He advised Plaintiff as to the surgical option, and Plaintiff opted to go forward with surgery on July 19, with a preoperative visit on July 17. Id.

On July 17, 2018, Dr. Paglia observed discoloration of the digits of Plaintiff's left hand, possibly consistent with Raynaud's phenomenon, but good color and capillary refill and full ROM of flexion and extension of the digits. Tr. at 844. He noted positive Tinel's, median nerve compression, and Phalen's tests of the left wrist. Id. Plaintiff reported diminished sensation over the median nerve distribution. Id. Dr. Paglia recommended Plaintiff proceed with left carpal tunnel release, but indicated he could not guarantee the result, as other factors may be contributing to his numbness and pain. Id.

On July 18, 2018, Plaintiff endorsed some relief from the cortisone injection Dr. Cibischino administered during his prior visit. Tr. at 840. He

26

indicated he was sleeping better and in less pain. Id. He reported having stopped physical therapy after developing numbness in his upper extremities. Id. Dr. Cibischino noted near full ROM and 4+/5/5 rotator cuff power in Plaintiff's left upper extremity. Tr. at 841. He assessed impingement syndrome of the left shoulder region and partial thickness rotator cuff tear. Id. He advised Plaintiff to discontinue physical therapy and to perform home exercises. Id.

Dr. Paglia performed left carpal tunnel release surgery on July 19, 2018. See Tr. at 837, 847.

On August 1, 2018, Plaintiff presented to Luis Cervantes, M.D. (“Dr. Cervantes”), with complaints of cervical pain with sporadic numbness and weakness and low back pain without lower extremity radiation. Tr. at 712. He endorsed cervical and interscapular pain, upper extremity paresthesia, and sporadic paresthesia throughout his body and into his legs that was causing his legs to buckle, resulting in falls six to eight times a week. Id. Dr. Cervantes noted pain on extension of Plaintiff's cervical spine, numbness upon cervical flexion, positive Lhermitte's sign, mild weakness proximally in the upper extremities, +1 biceps and triceps reflexes, +3 knee jerks, and normal gait and stance with slow and small steps and minor spasticity to gait. Tr. at 713. He stated the most recent MRI showed Plaintiff to have junctional syndrome, characterized by a spondylotic herniated disc with

27

anterior cervical cord compression above his C6-7 fusion. Id. He assessed junctional syndrome at ¶ 5-6 with myelopathy. Id. He wrote: “His symptoms are highly suggestive of someone who has had a fusion, the segment above becomes hypermobile, that this becomes spondylotic[, ] degenerates and causes compression of the spinal cord, particularly during flexion, which is what is producing his symptomatology.” Id. He indicated he “poorly understood” Dr. Sabo's failure to perform disc arthroplasty, as it was “state of the art in 2010 for people [with] 1 level cervical herniated discs, ” and would have prevented Plaintiff's current situation. Id. He informed Plaintiff that he needed to undergo anterior cervical discectomy and arthrodesis with use of an intervertebral cage. Id. He apprised Plaintiff of the risks, and Plaintiff opted to proceed with surgery, which was to be scheduled for August 13. Id. He did not recommend lumbar spine surgery, as it would likely fail and leave Plaintiff with intractable back pain. Tr. at 714. He recommended pain management and lumbar injections. Id.

On August 7, 2018, Plaintiff endorsed paresthesia and denied pain in his left hand. Tr. at 837. He indicated he thought the paresthesia might be related to his neck, as opposed to CTS. Id. Dr. Paglia noted a healing surgical wound without signs of infection and good ROM to flexion and extension of his digits. Tr. at 838. He removed Plaintiff's sutures and applied Steri-Strips. Id.

28

Chest x-rays were normal on August 9, 2018. Tr. at 777-78.

On August 13, 2018, Dr. Cervantes performed cervical discectomy and arthrodesis at ¶ 5-6 with a divergent cage for functional syndrome. See Tr. at 713, 720.

On August 30, 2018, Plaintiff rated his low back pain as a 10 of 10 and indicated it was preventing him from sleeping. Tr. at 832. Dr. Williams observed positive tenderness to palpation over Plaintiff's bilateral facet joints at the L4-5 and L5-S1 levels, pain in the region with hyperextension, and antalgic gait. Tr. at 833. He assessed lumbar spondylosis and low back pain and advised Plaintiff to follow up in three months, as he needed to allow time for his cervical fusion to heal and should consider rotator cuff repair. Id.

Plaintiff returned to Dr. Cervantes for post-surgical follow up on September 12, 2018. Tr. at 720. He reported doing well with minimal cervical interscapular pain. Id. Dr. Cervantes noted decreased ROM of Plaintiff's cervical spine, good strength in his upper extremities, absent biceps reflexes, +1 triceps reflexes, and +1 knee and ankle jerks. Id. He referred Plaintiff to physical therapy. Tr. at 721.

On September 14, 2018, Plaintiff continued to endorse numbness in his hands. Tr. at 829. Dr. Paglia observed full ROM of the digits of Plaintiff's left hand and diminished sensation over the entire hand that was not localized to the median nerve distribution. Tr. at 829. Tinel's, median nerve compression,

29

and Phalen's tests were negative. Id. He explained to Plaintiff that because his numbness did not correspond with the median nerve distribution, it was not likely related to CTS. Tr. at 830. He indicated Plaintiff appeared to have recovered from surgery and should follow up as needed. Id.

On September 26, 2018, Plaintiff reported that his left shoulder pain had returned and worsened. Tr. at 826. He described his pain as mostly over the top of his shoulder. Id. Dr. Cibischino noted Plaintiff was unable to extend his left arm in front of his body or above his shoulder level without intense pain. Id. He observed tenderness over the acromioclavicular (“AC”) joint, strongly positive O'Brien's test, positive cross-body abduction sign, positive secondary impingement, forward flexion to 90 degrees, and abduction to 80 degrees. Tr. at 827. He assessed partial thickness rotator cuff tear, impingement syndrome of the left shoulder region, and osteoarthritis of the AC joint. Id. He instructed Plaintiff to continue his home exercise program, discussed possible arthroscopy with open Mumford procedure, and indicated Plaintiff would need to wait for neurosurgical approval. Id.

On October 16, 2018, Plaintiff complained that he had developed severe pain during physical therapy. Tr. at 726. He described the pain as starting in his thoracolumbar area, radiating to his bilateral extremities, and causing weakness and numbness in his lower extremities. Id. He denied cervical and interscapular pain, headaches, and upper extremity pain and paresthesia. Id.

30

Dr. Cervantes noted good ROM of the cervical spine, no paravertebral muscle spasm, pain on flexion of the lumbosacral spine at 30 degrees, no pain on extension, ability to walk on heels and toes, no weakness in the upper or lower extremities, +1 biceps and triceps reflexes, and +1 knee and ankle jerks. Tr. at 727. He assessed acute low back pain with bilateral sciatica, prescribed Tramadol, and ordered an MRI of Plaintiff's lumbar spine. Id. He noted that if Plaintiff were not experiencing low back pain, “he would have been able to return back to work.” Id.

On October 26, 2018, an MRI of Plaintiff's lumbar spine showed disc desiccation at ¶ 12-L1 and L5-S1, but no spinal or foraminal stenosis throughout the lumbar spine. Tr. at 780.

On November 21, 2018, Plaintiff complained of left shoulder pain waking him constantly during the night and causing pain on most days. Tr. at 823. Dr. Cibischino observed tenderness over the AC joint, positive O'Brien's test, and positive tenderness with cross-body adduction. Id. He administered a cortisone injection to Plaintiff's left AC joint. Tr. at 824.

Plaintiff complained of pain “everywhere” on February 5, 2019. Tr. at 757. He specifically noted pain in his back, neck, and arm and described arm numbness, paresthesia in his upper extremities, and giving-way of his lower extremities. Id. Dr. Cervantes noted full lumbar ROM, fairly good cervical ROM, no muscle atrophy, normal muscle tone, normal gait and stance, red

31

discoloration to Plaintiff's upper extremities, ischemic changes in his right small finger, and decreased sensation distally in the areas of his upper extremities that were discolored. Id. He observed normal gait and stance and stated Plaintiff's MRI results did not explain why his legs were giving way. Id. He assessed cervical spondylosis, lumbar spondylosis, and Buerger's disease. Id. He explained that Buerger's disease, characterized by Raynaud's phenomenon of the distal upper extremity secondary to vasculitis, was likely related to Plaintiff's cigarette smoking. Id. He referred Plaintiff to a rheumatologist for evaluation of Buerger's disease. Id.

On February 13, 2019, x-rays of Plaintiff's cervical spine showed post-surgical changes without acute osseous abnormality. Tr. at 781.

Plaintiff complained of left thumb pain and locking and worsened pain at night on March 15, 2019. Tr. at 820. Dr. Paglia noted locking on flexion and extension of the thumb, intact sensation to light touch, equal bilateral grip strength, tenderness in the A1 pulley area, and small, palpable fullness of the flexor tendon. Id. He assessed stenosing tenosynovitis of the left thumb and administered a trigger finger injection. Tr. at 820, 821.

Plaintiff followed up with Dr. Cibischino for rotator cuff tear on April 10, 2019. Tr. at 817. He indicated the cortisone injection he received in November 2018 had provided near-total relief of his pain for about three weeks. Id. He stated he was again experiencing the symptoms he had prior to

32

the injection and had noticed pain radiating down his arm. Id. Dr. Cibischino observed no atrophy, distinct tenderness over the AC joint, positive O'Brien's test, mild tenderness over the bicipital groove, mildly positive Speed's test, 4+/4+/5 rotator cuff power, and poor active ROM to approximately 100 degrees forward flexion, 80 degrees abduction, 45 degrees external rotation, and thumb to left posterior hip internal rotation. Id. He assessed a partial thickness left rotator cuff tear, osteoarthritis of the left AC joint, and left shoulder impingement syndrome. Id. He explained to Plaintiff that he thought he was clearly symptomatic from his AC joint. Id. He recommended Plaintiff see a rheumatologist, encouraged him to work on his ROM, and prescribed Mobic. Tr. at 817-18.

On April 30, 2019, Plaintiff reported some residual discomfort, but denied locking of the left thumb following a cortisone injection. Tr. at 814. He endorsed joint pain, muscle stiffness, and swelling and noted his fingers looked purple. Id. Dr. Paglia noted Plaintiff had intact sensation and minor tenderness in the A1 pulley area. Id. He assessed clinically-resolved stenosing tenosynovitis of the left thumb. Id.

Plaintiff presented to Arif Shahzad, M.D. (“Dr. Shahzad”), for pain in his neck and numbness in his arms and hands on May 10, 2019. Tr. at 744. He reported carpal tunnel release had provided no help and multiple pain medications provided little relief. Tr. at 747. He endorsed fatigue, dry eyes,

33

blurred vision, shortness of breath, constipation, gastroesophageal reflux disease (“GERD”), and headaches. Tr. at 747-48. Dr. Shahzad noted three of 28 joints were tender, but otherwise recorded normal findings on physical exam. Tr. at 750-51. He assessed cervical disc disease, bilateral CTS, and polyneuropathy, but found no evidence of inflammatory arthritis. Tr. at 753. He stated Plaintiff's pain was caused by spinal disease and polyneuropathy. Id. He recommended a medication change from Gabapentin to Lyrica and indicated he would defer to Plaintiff's primary care physician, neurologist, and orthopedist as to chronic pain management. Id.

On May 16, 2019, Plaintiff complained of right-sided neck pain that radiated down his right arm and the right side of his back. Tr. at 764. He described his pain as severe, continuous, and worsening throughout each day. Id. Dr. Cervantes observed Plaintiff to have restriction on rotation, flexion, lateral bending, and ROM of his cervical spine, but no paravertebral muscle spasm. Tr. at 767. He noted tenderness in the suprascapular and interscapular areas and the paravertebral muscles and restricted ROM of the shoulders, but no true upper extremity weakness or sensory loss. Id. He stated Plaintiff had slow gait and decreased ROM of the lumbar spine. Id. He informed Plaintiff that his spine would take about a year to fuse and that there was not much else he could do. Id. He stated Plaintiff was again at risk for developing junctional syndrome and must go to pain management. Id. He

34

wrote: “As a neurosurgeon there is not much else I can offer this man, I sincerely think that he will never get better regardless of who treats him [or] what treatments he gets.” Id.

On May 16, 2019, Plaintiff presented to Roger M. Componovo, M.D. (“Dr. Componovo”), for evaluation of left hip pain, after having injured his hip in a fall five months prior. Tr. at 810. Dr. Componovo noted 5/5 strength, tenderness to palpation over the bilateral facet joints at ¶ 4-5 and L5-S1, pain in the L4-5 and L5-S1 regions with hyperextension, positive FABER sign, and slight tenderness to the left trochanter. Tr. at 811. He indicated Plaintiff showed some signs of trochanteric bursitis and recommended facet joint injection. Id. However, Plaintiff did not desire to proceed with an injection. Id. Dr. Componovo instructed Plaintiff to continue his medications and complete exercises. Id.

On June 5, 2019, Plaintiff reported no improvement in his left shoulder and indicated the most recent cortisone injection had provided only a brief period of pain relief. Tr. at 807. He complained of difficulty sleeping. Id. Dr. Cibischino noted MRI results were consistent with severe arthritis of the AC joint and a partial thickness rotator cuff tear. Id. He observed tenderness over the left AC joint, 4+/5 rotator cuff power, strongly positive O'Brien's test, and mild secondary impingement. Id. He informed Plaintiff of surgical

35

options, Plaintiff opted to proceed, and surgery was tentatively scheduled for July 16, 2019. Tr. at 808.

Plaintiff endorsed severe low back pain and intermittent bilateral lower extremity numbness on June 10, 2019. Tr. at 800. Dr. Williams observed Plaintiff to have a slow, flexed-postured gait, very limited ROM with pain on hyperextension, tenderness to palpation over the bilateral facet joints at ¶ 4-5 and L5-S1 and the paraspinal muscles of the lumbar spine, decreased sensation to light touch in the bilateral L5-S1 dermatomes, and positive bilateral SLR test. Tr. at 801. He ordered x-rays and an MRI, prescribed a Medrol Dosepak, and referred Plaintiff for EMG/NCS of the lower extremities to evaluate for radiculopathy. Id.

Plaintiff complained of joint pain and muscle stiffness and desired to discuss rotator cuff repair on July 8, 2019. Tr. at 797. Dr. Cibischino noted reduced ROM of the left shoulder, 4+ supraspinatus strength, positive O'Brien's test, and positive AC joint tenderness. Tr. at 798. He recommended he proceed with rotator cuff repair surgery. Id.

On July 16, 2019, Dr. Cibischino performed left shoulder arthroscopic extensive debridement of labral tears, chondral lesion, biceps tear, and partial-thickness rotator cuff tear with open distal clavicular resection. Tr. at 886-88.

36

Plaintiff presented to Dr. Cibischino for post-surgical follow up on July 31, 2019. Tr. at 789. He reported feeling much better than he had preoperatively and denied taking pain medication. Tr. at 791. Dr. Cibischino noted Plaintiff's wounds were healing well with no signs of infection. Id. He stated Plaintiff's ROM was to at least 100 degrees of forward flexion and abduction and his rotator cuff power was 5/5 throughout. Id. He removed the surgical staples, applied Steri-Strips, and referred Plaintiff to physical therapy. Id. He stated he felt that Plaintiff's arthritic AC joint had been a major pain generator and had been addressed. Id.

C. The Administrative Proceedings

1. The Administrative Hearing

a. Plaintiff's Testimony i. January 18, 2018

Plaintiff testified he lived with his wife and two of their four children, ages 14 and 18. Tr. at 96. He said his wife did not work and they relied on child support for the 14-year-old and assistance from the 18-year-old, who worked. Id. He stated he last worked as an iron worker on May 31, 2014. Tr. at 97. He indicated he had performed iron work on and off for 20 years and stopped working because problems with migraines and his back, neck, and arms prevented him from performing his work. Id. He denied driving and indicated his license had been suspended for years. Id.

37

Plaintiff stated he typically woke around 10:00 AM and went to bed around 10:00 PM. Tr. at 98. He denied sleeping for 12 hours, noting his arm would go numb and he felt pain in his back and legs, such that he had to adjust his body about every half hour. Id. He said he shifted from one side to the other to reduce his pain while sleeping. Tr. at 99. He indicated it often took him 20 to 45 minutes to fall asleep again after shifting positions. Id.

Plaintiff described constant, piercing pain in his lower back that started above his waist level and radiated to his bilateral legs. Tr. at 98-99. He said his legs went to sleep if he sat or maintained one position for too long. Tr. at 99. He indicated his pain increased on days when it was cold or rainy. Id. He said he also had pain in his groin, particularly when he slept too long. Tr. at 102.

Plaintiff testified he had moved from New Jersey to Pennsylvania the prior November. Tr. at 100. He stated he had some difficulty transferring from the New Jersey Medicaid program to the Pennsylvania program. Id.

Plaintiff indicated that during a typical day, he would sit on the couch and watch television, while propping his feet on a pillow on the coffee table. Id. He said he would get up after sitting for about half an hour, stand for a while, and lie on the floor on a pillow. Id. He stated he repeated this cycle throughout the day. Tr. at 100-01. He testified he watched about six hours of television and typically fell asleep while watching television. Tr. at 101. He

38

said his wife often read to him. Id. He admitted he could read, but indicated he did not read well because he had only completed school through the eighth grade. Id. He said he had attempted to obtain a high school equivalency certificate, but had failed the General Educational Development (“GED”) test three times. Id.

Plaintiff testified his wife and children performed the household chores because he was unable to do so. Tr. at 102. He indicated he left his home to attend doctor visits and take trips to the pharmacy and grocery store with his wife. Tr. at 103. He said they visited the grocery store approximately three times a month for 30 to 45 minutes at a time. Id. He stated he assisted his wife by putting small items in the cart. Id. He indicated he used a motorized cart if his pain was particularly acute. Tr. at 103-04.

Plaintiff stated his migraine headaches had started around the middle-to-end of 2014. Tr. at 104. He described piercing and throbbing pain from the back of his neck, up the side, and to the top of his skull that sometimes required he lie in a dark room. Tr. at 104-05. He said Dr. Kerrigan had prescribed Topamax four or five months prior, and he also took Sumatriptan for migraines. Tr. at 105-06. He explained that he used the Sumatriptan when he felt a headache coming on. Tr. at 106. He stated it took two to six hours to work, but that his migraines sometimes lasted for three or four days at a time. Id. He said Dr. Kerrigan had started giving him Botox injections

39

within the prior month and had scheduled him for additional injections in March. Tr. at 106-07. He stated he had noticed no improvement from the injections, but Dr. Kerrigan had indicated they might not be effectively initially. Id.

Plaintiff testified he had started seeing Dr. Williams for treatment of his lower back after his legs started giving out and he sustained falls. Tr. at 108, 109. He said the falls occurred a couple times per month. Tr. at 109. He noted Dr. Williams had scheduled him for MRIs. Tr. at 108. He stated Dr. Williams recommended back surgery, but told him there was a 60% chance his back would remain the same after surgery, a 30% chance it would improve, and a 10% chance it would worsen. Tr. at 109-10.

Plaintiff stated he visited Dr. Khan for pain management. Tr. at 109. He indicated Dr. Khan had been administering injections to his back and neck every two months. Tr. at 110. He said the injections alleviated his pain “a little bit” and lasted for a couple weeks. Tr. at 110-11. He noted Dr. Khan prescribed Gabapentin, which his doctor in New Jersey had previously prescribed in 2015. Tr. at 111.

Plaintiff testified he experienced pain in his back, neck, arms, and legs and had a slight migraine. Id. He confirmed he had been diagnosed with bilateral CTS following an EMG. Tr. at 112. He said he had been wearing braces throughout the day and sleeping with them on at night. Id.

40

Plaintiff stated that as an iron worker, he unloaded steel from 18wheeler flatbeds by hand. Tr. at 113. He said the items he lifted ranged from 200 to 1500 pounds. Id. He indicated he unloaded the flatbeds three or four times a week with the assistance of two coworkers. Id. He stated he used cranes to install steel in buildings. Id. He recalled that he had also performed overhead drilling into concrete. Tr. at 114.

Plaintiff described a numb sensation in his hands and pain that radiated from his neck down his arms. Tr. at 113. He indicated the pain and numbness began in 2014. Id. He stated he did not see a doctor specifically for his hands until recently because his providers kept telling him that his neck was the source of the problem. Id.

Plaintiff said Topamax caused memory problems and a rash. Tr. at 114. He noted Gabapentin caused him to feel “off balance.” Tr. at 115. He said Gabapentin and Cyclobenzaprine caused acid reflux. Tr. at 116-17. He stated he tended to “understand things backwards, ” such that they did not register correctly in his head. Tr. at 116.

Plaintiff stated he considered it unlikely that anyone would hire him due to his need to get up, move around, and retire to a dark room while experiencing migraines. Tr. at 118. He said he experienced 10 to 15 migraines per month. Id.

41

ii. August 7, 2019

Plaintiff testified he was homeless, as he had recently been forced to sell his home due to unpaid taxes. Tr. at 65-67. He indicated he and his wife were parking at truck stops and sleeping in their car on some nights, staying with his father-in-law in New Jersey on some nights, and staying at his wife's oldest son's house in Pennsylvania on some nights. Tr. at 66-68, 73-74. He stated his 16-year-old son was living with his father-in-law. Tr. at 67. He noted he and his wife often had to be in Pennsylvania for medical appointments. Tr. at 68, 74. Plaintiff indicated his wife had been diagnosed with schizophrenia and had recently undergone foot surgery. Tr. at 68, 69. He said he had undergone left shoulder surgery four weeks prior. Tr. at 66-67. He stated his doctor planned to assess his progress from left shoulder surgery before scheduling right shoulder surgery, but he anticipated it would be scheduled within eight weeks. Tr. at 69.

Plaintiff testified he had undergone bilateral carpal tunnel surgeries. Id. He stated his hands remained numb and he had developed trigger finger in his left thumb. Tr. at 70. He said Dr. Cervantes had performed his second neck surgery in August 2018 and Dr. Paglia had performed his left carpal tunnel surgery roughly six weeks earlier and his right carpal tunnel surgery about six weeks prior to the left. Tr. at 71. He testified that he continued to experience the same pain and other symptoms he had experienced prior to

42

his neck surgery. Id. He described feeling like someone was stabbing him in his collarbone, shoulder, and neck and constant numbness in his arms and left shoulder. Tr. at 72. He indicated he had difficulty sleeping and slept for only an hour on the prior night, although he admitted he had slept in his car. Tr. at 72-73. He said he also had problems sleeping in a bed, waking with numbness throughout his side and legs. Tr. at 75.

Plaintiff testified that Dr. Williams planned to operate on his lower back. Id. He stated he had previously seen Dr. Khan for injections in his neck and back, but Dr. Kerrigan and his primary care doctor had taken over his pain management. Id. He said Dr. Khan had referred him for EMG and an FCE. Tr. at 75-76. Plaintiff admitted he continued to experience migraines and was treated with Sumatriptan as needed, Topamax nightly, and Botox injections every three months. Tr. at 76-77. He said his headaches had improved, but continued to occur two to three times a week. Tr. at 77. He described burning pain that radiated from his neck to his shoulders and into his arms and constant numbness throughout his arms and hands. Id. He indicated he sometimes had difficulty picking up items. Id.

Plaintiff testified he had an upcoming appointment to be evaluated for ADHD and learning disabilities. Tr. at 78. He stated Dr. Kerrigan had scheduled the appointment because he was having difficulty with short-term memory and had dyslexia. Id.

43

Plaintiff said he experienced numbness from his hips through his feet due to sitting. Tr. at 79. He described tingling in his legs and inability to feel his feet. Id.

Plaintiff testified his medications included Gabapentin, Mobic, Meloxicam, Ventolin, Albuterol, Cyclobenzaprine, Diclofenac Sodium, Duloxetine, Fluticasone, Loratadine, Pantoprazole, Sumatriptan, and Topamax. Tr. at 80-81. He said his medications did not work well, but his doctors had not wanted to increase them. Tr. at 81. He indicated his dosages had been decreased because he was falling asleep during the day and was off-balance. Id. He stated Topamax affected his memory and caused him to be forgetful. Tr. at 81-82. Plaintiff testified he did few household chores prior to selling his house. Tr. at 82.

b. Vocational Expert Testimony

Vocational Expert (“VE”) Nadine Henzes, Ph.D., reviewed the record and testified at the hearing on August 7, 2019. Tr. at 83-86. The VE stated Plaintiff's PRW required heavy exertion and was skilled. Tr. at 84. The ALJ described a hypothetical individual of Plaintiff's vocational profile who could perform sedentary and light work requiring no climbing; no more than occasional postural changes such as bending, stooping, and kneeling; no

44

exposure to loud noises, such as traffic noises; a clean and temperate environment with no extremes of cold, wet, or humid conditions; no heights or hazards; no more than frequent use of the bilateral hands; no over-the-shoulder bilateral reaching or handling; confined to routine, repetitive tasks with few changes; no more than occasional contact with the public and coworkers; and no assembly line production work. Tr. at 84-85. The VE confirmed that the hypothetical would preclude Plaintiff's PRW. Tr. at 85. The ALJ asked whether there were any other jobs that the hypothetical person could perform. Id. The VE identified light jobs with an SVP of two as an office helper, Dictionary of Occupational Titles (“ DOT ”) No. 239.567-010 and a sorter or mail clerk, DOT No. 209.687-026, with approximately 74, 000 and 207, 000 positions available nationally, respectively. Id. She identified a sedentary job with an SVP of two as a scanner, DOT No. 249.587-018, with approximately 98, 000 positions in the national economy. Id.

Plaintiff's attorney asked the VE to consider an individual of Plaintiff's vocational profile who would be off-task for 20% of the workday, in addition to normal breaks, and would be unable to work every day, such that he would miss three or more days per month. Tr. at 86. He asked if the individual would be able to perform the jobs the VE identified in response to the ALJ's hypothetical question. Id. The VE stated the conditions would preclude employment. Id.

45

Plaintiff's counsel asked the VE if any of the jobs she identified would involve detailed instructions. Tr. at 86. The VE testified they would not. Tr. at 87. Plaintiff's counsel asked the VE to specify the reasoning level for the identified jobs. Id. The VE stated the job as an office helper required a reasoning level of two and the other two jobs required a reasoning level of three. Id.

2. The ALJ's Findings

In her decision dated September 30, 2019, 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, 2018.

2. The claimant has not engaged in substantial gainful activity since May 31, 2014, the alleged onset date (20 CFR 404.1571 et seq. , and 416.971 et seq. ).

3. The claimant has the following severe impairments: status post right total knee replacement, cervical and lumbar degenerative disc disease status post anterior cervical discectomy and fusion, hearing loss, asthma, bilateral carpal tunnel syndrome, migraine headaches, depression, anxiety, learning disability, and attention-deficit hyperactivity disorder (20 CFR 404.1520(c) and 416.920(c)).

4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).

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) and 416.967(b) except with no climbing of ladders and no more than occasional postural maneuvers, such as bending, stooping, or kneeling, etc. The claimant must avoid exposure to loud noises,

46

such as traffic noises. The claimant should perform work in a clean and temperate environment with no exposure to extremes of cold, wet, or humid conditions. The claimant must avoid exposure to unprotected heights and hazards. The claimant can have no more than frequent use of the bilateral hands with no over-the-shoulder bilateral reaching or handling. The claimant can work jobs with routine and repetitive tasks and few work changes. The claimant can have no more than occasional contact with coworkers and the public. The claimant must avoid assembly line production work.

6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).

7. The claimant was born on April 12, 1971, and was 43 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963).

8. The claimant has a limited education and is able to communicate in English (20 CFR 404.1564 and 416.964).

9. Transferability of job skills is not material to the determination of disability because applying 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), 416.969, and 416.969a).

11. The claimant has not been under a disability, as defined in the Social Security Act, from May 31, 2014, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

Tr. at 19-29.

II. Discussion

Plaintiff alleges the ALJ improperly evaluated the medical opinions of record. The Commissioner counters that substantial evidence supports the ALJ's findings and that the ALJ committed no legal error in his decision.

47

A. Legal Framework

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

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

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

42 U.S.C. § 423(d)(1)(A).

To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell , 461 U.S. 458, 460 (1983) (discussing considerations and noting “need for efficiency” in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity; (2) whether he has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4)

48

whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents him from doing substantial gainful employment. See 20 C.F.R. §§ 404.1520, 416.920. 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), 416.920(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).

A claimant is not disabled within the meaning of the Act if he can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, §§ 404.1520(a), (b), 416.920(a), (b); Social Security Ruling (“SSR”) 82-62 (1982).

49

The claimant bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).

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

2. The Court's Standard of Review

The Act permits a claimant to obtain judicial review of “any final decision of the Commissioner [] made after a hearing to which he was a party.” 42 U.S.C. § 405(g). The scope of that federal court review is narrowly-tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See id. ;

50

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.” Vtek v. Finch, 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen , 849 F.2d 846, 848 (4th Cir. 1988) ( citing Smith v. Schweiker , 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. “Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson , 402 U.S. at 390, 401; Johnson v. Barnhart , 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that his conclusion is rational. See Vitek , 438 F.2d at 1157-58; see also Thomas v. Celebrezze , 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed “even should the court disagree with such decision.” Blalock v. Richardson , 483 F.2d 773, 775 (4th Cir. 1972).

B. Analysis

Plaintiff argues the ALJ improperly evaluated opinion evidence from Dr. Miller and Mr. Uetz as to his abilities and functional limitations. [ECF No. 17 at 32-38]. The Commissioner maintains the ALJ reasonably assigned

51

little weight to the restrictions they indicated in their statements. [ECF No. 18 at 13-16].

Because Plaintiff filed his claim for benefits prior to March 27, 2017, the undersigned has evaluated the ALJ's treatment of the opinion evidence based on the rules in 20 C.F.R. § 404.1527 and § 416.927 and SSRs 96-5p and 06-3p. See 20 C.F.R. §§ 404.1520c, 416.920c (stating “[f]or claims filed before March 27, 2017, the rules in § 404.1527 [416.927] apply”); 82 Fed.Reg. 15, 263 (noting the rescissions of SSRs 96-2p, 96-5p, and 06-3p were effective for “claims filed on or after March 27, 2017”). “Medical opinions are statements from acceptable medical sources that reflect judgment about the nature and severity of [the claimant's] impairments, including [his] diagnosis and prognosis, what [he] can still do despite [his] impairment(s), and [his] physical or mental restrictions.” 20 C.F.R. §§ 404.1527(a)(1), 416.927(a)(1). Acceptable medical sources include licensed physicians, licensed or certified psychologists, licensed optometrists, licensed podiatrists, and qualified speech-language pathologists. 20 C.F.R. §§ 404.1513(a), 416.913(a), SSR 063p, 2006 WL 2329939 at *1 (2006). Only acceptable medical sources may render medical opinions. See 20 C.F.R. §§ 404.1527(a)(1), 416.927(a)(1).

Pursuant to 20 C.F.R. § 404.1527(c)(2) and § 416.927(c)(2), an ALJ is to give controlling weight to a treating source's medical opinion if it “is well-supported by medically acceptable clinical and laboratory diagnostic

52

techniques and is not inconsistent with the other substantial evidence in [the] case record.” However, where the ALJ declines to give controlling weight to the treating source opinion or where, as here, no treating source offers an opinion, the ALJ is to evaluate every medical opinion of record based on the following: (1) examining relationship; (2) treatment relationship; (3) supportability; (4) consistency; (5) specialization; and (6) other factors which tend to support or contradict the medical opinion. 20 C.F.R. §§ 404.1527(c), 416.927(c). The factors in 20 C.F.R. § 404.1527(c) and § 416.927(c) “explicitly apply only to the evaluation of medical opinions from ‘acceptable medical sources.'” SSR 06-3p, 2006 WL 2329939 at *4 (2006). Nevertheless, they represent basic principles for the consideration of all opinion evidence. Id. The ALJ “generally should explain the weight given to opinions from [medical sources who are not acceptable medical sources and from non-medical sources who have seen the claimant in their professional capacity], or otherwise ensure that the discussion of the evidence in the determination or decision allows a claimant or subsequent reviewer to follow [her] reasoning, when such opinions may have an effect on the outcome of the case.” Id. at *6.

“Under 20 CFR 404.1527(e) and 416.927(e), some issues are not medical issues regarding the nature and severity of an individual's impairment(s), but are administrative findings that are dispositive of a case;

53

i.e. , that would direct the determination or decision of disability.” SSR 96-5p, 1996 WL 374183 at *2 (1996). Examples of such issues include: (1) [w]hether an individual's impairment(s) meets or is equivalent in severity to the requirements of any impairment(s) in the listings; (2) [w]hat an individual's RFC is; (3) [w]hether an individual's RFC prevents him or her from doing past relevant work; (4) [h]ow the vocational factors of age, education, and work experience apply; and (5) whether an individual is ‘disabled' under the Act.” Id. The final responsibility for deciding these issues is reserved to the Commissioner. Id. Nevertheless, as the ALJ is required to consider medical source opinions about any issue, he must “evaluate all the evidence in the case record to determine the extent to which the opinion is supported by the record, ” applying the applicable factors in 20 CFR 404.1527[(c)] and 416.927[(c)]. Id. at *2-3.

The undersigned has considered Plaintiff's specific arguments in light of the foregoing authority.

1. Dr. Miller's Opinion

Upon examining Plaintiff on February 23, 2016, Dr. Miller noted he “c[ould] do very little independently with regard to day-to-day [activities of daily living].” Tr. at 567. She stated Plaintiff had adequate mentation and could manage his own funds. Id. She provided a guarded prognosis as to Plaintiff's impairments. Id.

54

The ALJ discussed Dr. Miller's opinion and gave it little weight, finding “these restrictions appear to simply be the claimant's self-reported symptomatology, as the results of the mental status evaluation belie the limitations included herein.” Tr. at 26.

Plaintiff argues Dr. Miller indicated work-preclusive limitations that would support a finding that he was disabled. [ECF No. 17 at 35]. He maintains the ALJ's allocation of little weight to Dr. Miller's opinion was unreasonable, as the evidence refuted the ALJ's conclusion that it was based solely on his subjective complaints. Id. at 38. He further maintains the ALJ erred in rejecting the opinion based on Dr. Miller's failure to provide a full mental capacity assessment. Id.

The Commissioner argues the ALJ reasonably assigned little weight to Dr. Miller's statement as to Plaintiff's ability to independently perform daily activities. [ECF No. 18 at 11]. He notes Dr. Miller examined Plaintiff on one occasion and documented mostly normal mental status findings. Id. at 12-13. He maintains the context supports the ALJ's conclusion that Dr. Miller was not expressing a medical opinion, but rather reciting Plaintiff's self-reported limitations. Id. at 13. He contends the ALJ did not disregard Dr. Miller's statement as a medical opinion based on her failure to provide a function-by-function analysis, but, rather, because she provided a memorialization of

55

Plaintiff's allegations, as opposed to an opinion as to his functional abilities. Id. at 14-15.

In his reply brief, Plaintiff argues the Commissioner is improperly offering post-hoc rationale the ALJ failed to provide in noting that Dr. Miller performed a one-time evaluation. [ECF No. 19 at 5]. He maintains the ALJ improperly concluded that Dr. Miller's opinion was based on his subjective complaints because the opinion contained both his reported symptoms and supporting clinical observations. Id. at 6. He contends the ALJ regarded Dr. Miller's statement as an opinion, and the Commissioner's counsel is prohibited from arguing a position contrary to the ALJ's stated reason. Id. at 6-7.

The statement at issue in Dr. Miller's report is the following: “The claimant can do very little independently with regard to day-to-day ADLs.” See Tr. at 567. Like the Commissioner's counsel, the undersigned is inclined to interpret this sentence as a summary of Plaintiff's statements to her, as opposed to an opinion as to his functional abilities. However, the fact that the ALJ interpreted this as an opinion suggests the statement is subject to multiple interpretations. See Tr. at 26 (accordingly “little weight” to Dr.

56

Miller's “opinion” that Plaintiff “can do very little independently with regard to day-to day activities of daily living”). Because the ALJ considered Dr. Miller's statement to be an opinion, the Commissioner and the court are bound by her interpretation. See Robinson ex rel. M.R. v. Comm'r of Soc. Sec. , C/A No. 0:07-3521-GRA, 2009 WL 708267 at *12 (D.S.C. Mar. 12, 2009) (“[T]he principles of agency law limit this court's ability to affirm based on post hoc rationalizations from the Commissioner's lawyers .... ‘[R]egardless [of] whether there is enough evidence in the record to support the ALJ's decision, principles of administrative law require the ALJ to rationally articulate the grounds for [her] decision and confine our review to the reasons supplied by the ALJ.'”) (quoting Steele v. Barnhart , 290 F.3d 936, 941 (7th Cir. 2002))). Therefore, the undersigned has evaluated whether she properly considered Dr. Miller's statement based on the relevant factors in 20 C.F.R. § 404.1527(c) and § 416.927(c).

The undersigned rejects Plaintiff's argument that the Commissioner is providing improper post hoc rationale as to the absence of a treatment relationship, as it appears the ALJ considered the examining and treating factors in accordance with 20 C.F.R. § 404.1527(c)(1) and (2) and § 416.927(c)(1) and (2) in evaluating Dr. Miller's opinion. Although the ALJ did not explicitly reference the absence of a treatment relationship as a reason for according little weight to Dr. Miller's opinion, she noted Dr. Miller

57

“completed a consultative psychiatric evaluation of the claimant, ” suggesting she considered the examining and treating factors. See Tr. at 26.

In accordance with 20 C.F.R. § 404.1527(c)(3) and § 416.927(c)(3), the ALJ stated she was according little weight to Dr. Miller's opinion because she did not find support for it in her examination findings. See id. She determined a conclusion that Plaintiff could do very little independently with regard to ADLs was not supported by findings of slow, but goal-directed thought process; full orientation; neutral mood; blunted affect, fair judgment, insight, and impulse control; no thought disorder; an absence of suicidal and homicidal ideation; and no difficulties in interacting with others. See id. She concluded Dr. Miller's opinion “appear[ed] to simply be the claimant's selfreported symptomatology” because her MSE findings did not support such a conclusion. The ALJ's conclusion is reasonable, as Dr. Miller cited no evidence other than Plaintiff's reports and descriptions to support a finding that he could do very little independently with regard to ADLs and her findings on MSE were mostly normal.

The ALJ also noted the opinion was “without a full mental functional capacity assessment.” See id. Plaintiff argues this was an improper reason for the ALJ to accord little weight to Dr. Miller's opinion, as this court explained in Putnam v. Saul , C/A No. 2:18-cv-3524, 2020 WL 562960, at *5 (D.S.C. Feb. 5, 2020), that the function-by-function assessment was a requirement for

58

ALJ's decisions-not a requirement for medical opinions.” [ECF Nos. 17 at 38 and 19 at 6]. If the ALJ had discredited Dr. Miller's opinion for this reason alone, the undersigned would be inclined to find her reason inadequate. However, given her earlier assessment of the supportability of the statement, it appears the ALJ was noting that the absence of a full mental functional capacity assessment further supported a finding that the statement Plaintiff could do very little independently with regard to ADLs was based on “the claimant's self-reported symptomatology.” See id. Thus, she was noting that the ALJ's failure to speak to other functional limitations indicated the one she provided was based on Plaintiff's report, as opposed to examination findings.

A review of the whole record suggests the ALJ considered the consistency of Dr. Miller's opinion in accordance with 20 C.F.R. § 404.1527(c)(4) and § 416.927(c)(4). Although the ALJ did not specify that Dr. Miller's statement as to Plaintiff's ability to complete ADLs was inconsistent with the other evidence of record, he cited throughout the decision evidence as to Plaintiff's ADLs that was inconsistent with Dr. Miller's statement. In finding Plaintiff had moderate limitation in understanding, remembering, or applying information, the ALJ noted that “in his Function Report he indicated that he requires no reminders to address his personal care needs, to complete household chores, or to take his medication timely (Exhibit 4E).” Tr.

59

at 21. In assessing moderate limitation in interacting with others, the ALJ pointed out that he “engage[d] in activities that require[d] interacting with others, including shopping in stores for food and other necessities.” Tr. at 22. In finding moderate limitation in adapting or managing oneself, the ALJ recognized that Plaintiff was “able to handle his personal care needs without issue.” Id. He further wrote: “The evidence of record, including statements by the claimant, shows the claimant is able to do household chores, shop, handle money, care for his personal needs, and spend time with his family (Exhibit 4E; Hearing Testimony). He noted he had considered Plaintiff's ADLs in assessing the RFC, writing:

In his Function Report, he indicated that he is able to perform personal care, shop in stores, handle a savings account, and take out the garbage (Exhibit 4E). While none of these activities alone is dispositive in determining the claimant's residual functional capacity, taken together they suggest that the claimant is capable of performing work activity on a sustained and continuous basis within the above parameters.

Tr. at 25-26.

Given the foregoing, the undersigned recommends the court find the ALJ adequately weighed Dr. Miller's opinion based on the relevant factors in 20 C.F.R. § 404.1527(c) and 416.927(c) and that substantial evidence supports her allocation of little weight to it.

60

2. Mr. Uetz's FCE Findings

Mr. Uetz determined Plaintiff's maximum workday tolerance level to be five hours. Tr. at 653. He concluded Plaintiff's physical demand level was below sedentary based on the SSA's definition of sedentary work. Id.

The ALJ gave little weight to Mr. Uetz's FCE findings, considering them to be “based solely upon the claimant's self-reported limitations asserted in a testing setting, which the claimant did not complete.” Tr. at 28. He found Plaintiff's treatment history “belie[d] the severity of [his] alleged limitations.” Id. He noted Mr. Uetz was not an acceptable medical source and that the opinion “attest[ed] to the ultimate issue of disability.” Id.

Plaintiff argues the ALJ provided an unreasonable explanation to support his allocation of little weight to Mr. Uetz's FCE findings. [ECF No. 17 at 33]. He indicates the ALJ's conclusion that the opinion appeared to be based on his self-reported limitations was erroneous, as Mr. Uetz indicated his evaluation consisted of “patient's responses, repetitions, weighted activity numbers, heart rates, pinch, and grip dynamometer numbers, ” and observations as to pace and gait. Id. He further claims the record of complaints, objective findings, and surgery refutes the ALJ's claim that his “treatment history further belies the severity of [his] alleged limitations.” Id. at 34. Plaintiff contends the ALJ's general conclusory statement was insufficient to satisfy the requirement that he provide specific reasons for the

61

weight he allocated to the opinion evidence. Id. He maintains the ALJ should have considered the applicable factors in 20 C.F.R. § 404.1527 and § 416.927 in evaluating Mr. Uetz's opinion and was required to consider the opinion given the entire record. Id. at 34-35.

The Commissioner argues the ALJ reasonably assigned little weight to Mr. Uetz's FCE. [ECF No. 18 at 15]. He notes Mr. Uetz saw Plaintiff only on one occasion and classified Plaintiff's functional ability based on the agency's definition of sedentary work, although he was neither a doctor nor an ALJ. Id. He maintains the ALJ's conclusion that Mr. Uetz's opinion was based on Plaintiff's self-reported limitations is supported by Plaintiff's failure to attempt some activities and complaints of pain throughout the testing. Id. at 16. He contends the standing and walking limitations Mr. Uetz indicated were contrary to the majority of evidence that showed normal gait and ability to ambulate without an assistive device. Id. He claims the ALJ correctly concluded Mr. Uetz was not an acceptable medical source under the applicable regulations. Id.

Plaintiff argues the Commissioner is offering impermissible post hoc rationale, as the ALJ did not give reduced weight to Mr. Uetz's opinion because it was based on a one-time evaluation and did not explain how the opinion was inconsistent with other evidence of record. [ECF No. 19 at 2, 4]. He maintains that Mr. Uetz's opinion was based on results of the tests he

62

administered. Id. at 3. He points out that Mr. Uetz observed him to demonstrate full effort on all activities other than kneeling and crawling, which he declined to attempt. Id.

The ALJ followed the applicable regulations and SSR in rejecting Mr. Uetz's opinion limiting Plaintiff to less than sedentary work based on SSA's definition of sedentary work. RFC assessments are not medical opinions, as “[t]he judgment regarding the extent to which an individual is able to perform exertional ranges of work goes beyond medical judgment regarding what an individual can still do and is a finding that may be dispositive of the issue of disability.” SSR 96-5p, 1996 WL 374183 at *5; see also 20 C.F.R. §§ 404.1527(d), 416.927(d) (“Opinions on some issues . . . are not medical opinions . . . but are, instead, opinions on issues reserved to the Commissioner because they are administrative findings that are dispositive of a case; i.e. , that would direct the determination or decision of disability.”).

The ALJ did not err in considering that Mr. Uetz was not an acceptable medical source, as this is a factor that would reasonably tend to contradict his opinion pursuant to 20 C.F.R. §404.1527(c)(6) and § 416.927(c)(b). If the ALJ had given the opinion little weight on this basis alone, he would have done so in error. However, because he was guided by the other factors in 20 C.F.R. § 404.1527(c) and § 416.927(c) in evaluating the opinion, substantial

63

evidence supports his reduction of credit to the opinion as one not rendered by an acceptable medical source.

Although Plaintiff maintains the ALJ erred in assessing the supportability factor under 20 C.F.R. § 404.1527(c)(3) and § 416.927(c)(3), substantial evidence supports his conclusions that Mr. Uetz based his opinion on Plaintiff's self-reported limitations in a testing setting where he failed to complete the testing. The ALJ reasonably interpreted Plaintiff's failure to attempt squatting, kneeling, or crawling as failure to complete testing, despite Mr. Uetz's opinion that he provided consistent effort. See Tr. at 659. Plaintiff is correct that Mr. Uetz's opinion as to the consistency of his effort is based on measures of reliability that include consistent pinch dynamometer patterns, oxygen saturation, heart rate, and pain-related facial expressions and actions. See Tr. at 653, 656-59. However, Mr. Uetz also admitted he based his assessment on Plaintiff's self-reported pain levels. See Tr. at 653 (reflecting Plaintiff's pre-FCE, during FCE, and post-FCE pain ratings). He indicated the maximum workday tolerance was eight hours and if the individual provided consistent effort and his pain increased post-evaluation as compared to pre-evaluation, he was required to subtract .5 to 1.5 hours

64

from the total workday tolerance level. It follows that if Plaintiff reported increased pain following the evaluation, which he did, Mr. Uetz was required to find him incapable of completing an eight-hour workday. Thus, the ALJ logically concluded the test was largely based on Plaintiff's “self-reported limitations.” See Tr. at 26.

In considering the consistency of Mr. Uetz's opinion with the other evidence of record in accordance with 20 C.F.R. § 404.1527(c)(4) and § 416.927(c)(4), the ALJ stated “[t]he claimant's treatment history further belies the severity of the claimant's alleged limitations.” See id. In isolation, this statement is conclusory. However, the ALJ discussed Plaintiff's treatment history elsewhere in the decision. While Plaintiff claims his complaints, objective findings, and surgeries refute the ALJ's conclusion as to his treatment history, the ALJ cited specific evidence that Plaintiff was doing well six months following his 2010 cervical surgery; “had normal gait, was able to ambulate without assistance, and had grossly normal muscle tone in all major muscle groups of upper and lower extremities with no apparent deficit of strength” in October 2017; had “great response and resolution of

65

numbness” with injection therapy to the spine; “had cervical spine surgery, which resolved his cervical spine problem”; “utilized medication management” and occipital nerve blocks to help with headaches and control symptoms; and had equal bilateral grip strength with intact sensation to light touch. Tr. at 24-25. He referenced “mild imaging results, intact motor findings, normal mental status examinations, normal objective physical findings, and the claimant's reported improvement with treatment” as not warranting further restrictions. Tr. at 25. Thus, the ALJ cited sufficient evidence to support his allocation of little weight to Mr. Uetz's opinion, in part, based on inconsistency with the other evidence of record.

In light of the foregoing, the undersigned recommends the court find substantial evidence supports the ALJ's allocation of little weight to Mr. Uetz's opinion.

III. Conclusion and Recommendation

The court's function is not to substitute its own judgment for that of the Commissioner, but to determine whether his decision is supported as a matter of fact and law. Based on the foregoing, the undersigned recommends the Commissioner's decision be affirmed.

66

IT IS SO RECOMMENDED.

June 2, 2021

The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”

67

Notice of Right to File Objections to Report and Recommendation

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

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

Robin L. Blume, Clerk

United States District Court

901 Richland Street

Columbia, South Carolina 29201

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

---------

Notes:

The Committee on Court Administration and Case Management of the Judicial Conference of the United States has recommended that, due to significant privacy concerns in social security cases, federal courts should refer to claimants only by their first names and last initials.

During the prior hearing, the VE classified Plaintiff's PRW as that of an ornamental iron worker, DOT No. 809.381.022, as requiring heavy exertion and having a specific vocational preparation of 7. Tr. at 120.

The Commissioner's regulations include an extensive list of impairments (“the Listings” or “Listed impairments”) the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. §§ 404.1525, 416.925. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, he will be found disabled without further assessment. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that his impairments match several specific criteria or are “at least equal in severity and duration to [those] criteria.” 20 C.F.R. §§ 404.1526, 416.926; Sullivan v. Zebley , 493 U.S. 521, 530 (1990); see Bowen v. Yuckert , 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).

In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's past relevant work to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. §§ 404.1520(h), 416.920(h).

Although Dr. Miller did not specify that Plaintiff reported he could “do very little independently with regard to day-to-day ADLs, ” the sentences that follow reflect Plaintiff's statements and descriptions, suggesting the sentence is a summary of his reported ability to perform ADLs. See Tr. at 567.

Although Mr. Uetz recorded variations in Plaintiff's pulse and oxygen saturation, his pulse only rose from 71 beats per minute (“BPM”) at rest to a maximum of 92 BPM during testing. See Tr. at 659. His oxygen saturation was at its lowest prior to the evaluation at 97% and rose during testing to 100%. See id.

Plaintiff does not specifically challenge the ALJ's assessment of his RFC or evaluation of his subjective symptoms, but merely asserts the record contains evidence that refutes the ALJ's conclusory statement as to his treatment history. The court is not permitted to reweigh the evidence. See Hays v. Sullivan , 907 F.2d 1453, 1456 (4th Cir. 1990). In the absence of a specific argument, the undersigned has not addressed the ALJ's RFC assessment or evaluation of Plaintiff's subjective allegations.

---------