South Carolina Cases September 08, 2021: Simmons v. Kijakazi

Case Description

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REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

Kaymani D. West, 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 Civil Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying her claim for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) pursuant to the Social Security Act (“the Act”). For the reasons that follow, the undersigned recommends that the Commissioner's decision be reversed and remanded.

I. Relevant Background

A. Procedural History

On June 19, 2017, Plaintiff protectively filed applications for DIB and SSI alleging she became disabled on April 12, 2012. Tr. 240-47. Plaintiff's applications were denied initially on August 11, 2017, Tr. 94-95, and on reconsideration on October 25, 2017, Tr. 123-24. Plaintiff

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requested a hearing before an Administrative Law Judge (“ALJ”). Tr. 147-48. ALJ Edward T. Morriss conducted an administrative hearing on February 12, 2019, taking testimony from Plaintiff and Vocational Expert (“VE”) Dawn Bergren. Tr. 31-53. The ALJ denied Plaintiff's claim in a decision dated July 25, 2019. Tr. 12-25. On September 18, 2019, Plaintiff requested review of this decision by the Appeals Council. Tr. 220-25. After granting Plaintiff's request for additional time, Tr. 7-8, on June 17, 2020 the Appeals Council sent Plaintiff a “Notice of Appeals Council Action” indicating it had denied Plaintiff's request for review of the ALJ's July 2019 decision, Tr. 1-5. Plaintiff brought this action seeking judicial review of the Commissioner's decision in a Complaint filed on August 6, 2020. ECF No. 1.

B. Plaintiff's Background

Born in March 1978, Plaintiff was 39 years old on her potential onset date of April 12, 2017-the day after the prior ALJ's denial of benefits. Tr. 270. In her June 20, 2017 form Disability Report-Adult Plaintiff indicated that she was 5'2” tall and weighed 220 pounds. Tr. 274. Plaintiff indicated that she stopped working on April 12, 2012 because of her medical conditions which she listed as back injury, neck injury, and left knee injury, and because she was terminated from her job because the company would not allow her to work with restrictions. Id. She noted that her conditions caused her to make changes in her work activity on January 1, 2010. Id. Plaintiff listed the following jobs in her job history: front end manager, Phar-mor retail drugstore (April 1999-Sept. 2002); store manager, Dollar Factory (Oct. 2002-Dec. 2002); and reset and revision clerk, Walgreens drugstore (Feb. 2003-April 2012). Tr. 275. Plaintiff indicated that she obtained her GED in May 1999, did not attend special education classes, and has not completed any type of specialized job training, trade, or vocational school. Id.

C. Administrative Proceedings

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Plaintiff appeared with counsel on February 12, 2019 in Charleston, SC before ALJ Morriss for her administrative hearing. Tr. 31. VE Bergren also appeared and testified. Id.

1. Plaintiff's Testimony

In response to questions from the ALJ Plaintiff verified her address, birthdate, current age as 40 years old, and that she had obtained her GED. Tr. 34.

In response to questions from her attorney Plaintiff confirmed that she has been diagnosed with a cervical disc herniation, lumbar disc herniation, and degenerative disc and joint disease. Tr. 34. She testified that her treating doctor is Dr. Gregory Kang and she has been seeing him every two months for five or six years. Tr. 34-35. She confirmed that Dr. Kang is the person most familiar with her musculoskeletal issues, and he also treats her for left and right knee osteoarthritis. Tr. 35. Plaintiff stated that her conditions are significantly worse than they were in 2017. Tr. 35-36. Plaintiff testified that the more activities she performs-such as cooking, cleaning, and doing dishes-the more significant her pain. Tr. 36. Plaintiff stated that she has “numbness that goes in my arms, down my legs. Both my hands will go numb.” Id. Plaintiff testified that she could not wash an entire sink full of dishes without having to sit down. Id. She stated she could wash “maybe ten coffee cups” before having to sit down. She testified “the longer I hold my arms up, that's when I get pain radiating down my arms and my hands go numb. And then my lower back and my legs will start to go numb.” Id. Plaintiff stated that while cooking she has to “frequently sit down.” Id. Plaintiff testified that her pain “pretty much, stays the same” throughout the day, but if she does more activity like walking in the grocery store, her “pain level goes up.” Tr. 37. Plaintiff stated that her pain scale ranges between six and eight, and it was currently at seven. Id. Plaintiff testified that cold weather makes her pain worse. She noted that her current pain was in her lower back, left knee, and in her arm. Plaintiff stated that she is right-handed, and she could “barely lift” her arms.

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Id. Plaintiff testified that the pain is worse in left arm, but depending on what she is doing, the right arm “gets as bad as the left and right now it's the worst.” Tr. 37-38. Plaintiff stated that she could sit in a chair for about 10-15 minutes before needing to change positions. Tr. 38. Plaintiff's attorney noted that Plaintiff was “squirming around” and Plaintiff stated that was because of her lower back. Id. Plaintiff testified that, depending on her pain level, she could stand for ten minutes. Plaintiff stated that her pain increased by walking one block and when she goes grocery shopping, she leans on the buggy. Id. Plaintiff confirmed that she takes “a slew of medications.” Id.

Plaintiff testified that she lives in an apartment with her 65-year-old mother who receives a Social Security disability check. Tr. 39. Plaintiff confirmed that they help take care of each other. Id. Plaintiff stated that she has no source of income. Id.

Plaintiff testified that she has been diagnosed with PTSD and is currently being seen at the Rape Crisis Center every two weeks. Tr. 39-40. Plaintiff stated that her PTSD stems from both the rape that occurred four years ago and from an on-the-job injury at Walgreens. Tr. 40. Plaintiff testified that the injury was to her back, left knee, and neck and she filed a workers compensation claim. Id. Plaintiff stated that her claim was resolved and she received a lump sum settlement but she could not recall the net amount. Tr. 40-41. Plaintiff confirmed that she suffers from depression and anxiety that came after the rape case. Tr. 41. Plaintiff stated that she suffers from panic attacks and still has them in 2019. Id. Plaintiff testified that the panic attacks are triggered if she is in a large group of people and someone comes up to her from behind or if someone gets close to her. Id. Plaintiff described her panic attacks as follows: “My breathing becomes labored. Everything gets fuzzy around me. My chest will constrict. I'll start to have chest pains and all I want to do is just find a corner somewhere.” Tr. 42. Plaintiff stated her last panic attack occurred three weeks prior to the hearing in a grocery store. Id. She testified that in response to the attack she took her

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buggy to an empty aisle and “slowed my breathing down and told myself that I was okay and eventually it subsided.” Id. Plaintiff stated that a typical panic attack lasts five-to-ten minutes. Id.

Plaintiff testified that she has lived in Myrtle Beach for almost 12 years, and she worked for Walgreens almost 11 years-the only job she held while in Myrtle Beach. Tr. 42. Plaintiff stated that at Walgreens she was in charge of the inventory, she “did counts of all the merchandise, ” she unloaded trucks, worked in the photo department, worked at the front register, and worked in cosmetics. Tr. 43. Plaintiff stated that her job involved standing and walking and at times she had to lift between 25 and 50 pounds. Id. Plaintiff stated that she had to unload trucks once a week and lift merchandise to stock the shelves. Tr. 43-44. Plaintiff testified that before she moved to Myrtle Beach, she worked at a retail store called Dollar Factory as a “working manager” doing payroll, scheduling, running the cash register, opening and closing the store, bank deposits, ordering and helping unload merchandise. Tr. 44. Plaintiff testified that she also worked at PharMor, “a drugstore slash grocery store, ” as a “front end coordinator.” Tr. 45. Plaintiff testified that at PharMor she did customer service, ran the cash office, closed the registers down at night, ran audits, and ordered change from the bank for the cashiers. Id. Plaintiff stated that she most missed the job at Walgreens. Id. Plaintiff testified that she did not think she could do any of those jobs at present. Id.

Plaintiff stated that on an average day if there are bills that she needs to pay she goes to pay them, and she tries to do light housework. Tr. 45. She stated there are some days that she cannot do anything because of pain and she can only alternate between sitting in her recliner and walking for a few minutes. Id. Plaintiff testified there are “probably five to ten [days] in a month” when she is unable to do anything. Tr. 46. Plaintiff stated that she spends time every day in her

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recliner, and that is where she gets the most relief because she is halfway lying down and halfway sitting up. Id.

In response to questions from the ALJ regarding her ability to do housework Plaintiff testified that she does some “light dusting, ” picks up clothes, and tries to do the dishes. Tr. 46-47. Plaintiff stated that right now they “have no way to do laundry” so her mother will try to handwash items in the sink. Tr. 47. Plaintiff stated that she is unable to do any handwashing of clothing. Id. Plaintiff testified that she is able to drive a car, but the more she gets in and out of the car her pain level increases and it becomes harder. Id. The ALJ noted that at the last hearing Plaintiff indicated that she had injections for treatment and Plaintiff confirmed that she had injections but did not have surgery. Tr. 47-48. Plaintiff stated that Dr. Kang does not provide anything other than medication. Tr. 48. Plaintiff testified that her PTSD was diagnosed four years ago around the time of the rape case in August 2014. Id. Plaintiff testified that Dr. Kang diagnosed her PTSD. Plaintiff stated that she went to the Rape Crises Center two weeks after the rape-which was the earliest they could take her-and she has been seeing them since then. Id. Plaintiff testified that her symptoms have gotten “considerably worse” since 2014, but she does not know why. Tr. 49. The ALJ noted that at the 2017 hearing Plaintiff denied any mental health symptoms. Id. Plaintiff stated that she “had some” but it was not as bad. Id. Plaintiff's attorney asked if her PTSD, back, and knee conditions are worse than they were at the prior hearing, and Plaintiff confirmed that they were. Tr. 49-50.

2. VE's Testimony

The VE classified Plaintiff's past relevant work at Walgreens as merchandiser, Dictionary of Occupational Titles (“DOT”) number 299.367-014, heavy exertion but performed as medium, with SVP of 4. Tr. 51. ALJ asked VE Bergren to assume the following:

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Assume I find the claimant is 40 years old, has the equivalent of a high school education. Assume I find she can perform light work; would be limited to occasional climbing of ramps and stairs, balancing, stooping, kneeling, crouching, and crawling, but would be unable to climb ladders. And assume additionally that she would be unable to perform work where there is frequent public interaction.

Id. The ALJ asked if there would be any jobs she could perform and the VE responded affirmatively with the following examples: laundry folder, DOT number 369.687-018, SVP:2, approximately 443, 000 positions in the U.S.; inspector and hand packager, DOT number 559.687074, SVP:2, approximately 313, 000 positions in the U.S.; and mail clerk, DOT number 209.687026, SVP:2, approximately 56, 000 positions in the U.S. Id.

The ALJ asked the VE to assume the same elements in the first hypothetical and “assume in addition I would find that she would require on an unscheduled basis work breaks which would average two hours for each eight-hour day.” Tr. 52. The ALJ asked if she could perform any of the identified jobs, and the VE responded negatively and stated that would also preclude other work. Id.

Plaintiff's attorney asked if the hypothetical individual could perform substantial gainful activity if the individual “could only walk a total of one to two hours in a workday, stand a total of one to two hours in a workday, and sit one to two hours in a workday” and the VE responded negatively. Tr. 52. Plaintiff's attorney asked if the person would be a candidate for substantial gainful activity if unable to work an eight-hour day five days a week, and the VE again responded negatively. Id.

With no further questions, the hearing concluded. Tr. 52-53.

II. Discussion

A. The ALJ's Findings

In his July 25, 2019 decision, the ALJ made the following findings of fact and conclusions

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of law:

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2017.

2. The claimant has not engaged in substantial gainful activity since April 7, 2017, the date after the prior decision (20 CFR 404.1571 et seq ., and 416.971 et seq. ).

3. The claimant has the following severe impairments: degenerative disc disease, posttraumatic stress disorder, and depression (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, I find that the claimant has the residual functional capacity to perform less than the full range of light work as defined in 20 CFR 404.1567(b) and 416.967(b). Specifically, the claimant can lift, carry, push and/or pull 20 pounds occasionally and 10 pounds frequently. She can sit for 6 hours in an 8-hour day and stand and/or walk for 6 hours in an 8-hour day. The claimant can only occasionally climb ramps and stairs, balance, stoop, kneel, crouch and crawl, and she can never climb ladders. She can have no frequent public interaction.

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

7. The claimant was born on March 21, 1978 and was 34 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 at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).

9. Transferability of jobs skills is not material to the determination of disability because using the Medical-Vocational Rules support 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).

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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, 404.1569a, 416.969, and 416.969a).

11. The claimant has not been under a disability, as defined in the Social Security Act, from April 7, 2017, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

Tr. 17-19, 24-25.

B. 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, ” defined as:

inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months[.]

42 U.S.C. § 423(d)(1)(A); see also 42 U.S.C. § 1382c(a)(3)(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, 461 n.2 (1983) (discussing considerations and noting “need for efficiency” in considering disability claims). An examiner must consider the following: (1) whether the claimant is working; (2) whether the claimant has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing past relevant work

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(“PRW”); and (5) whether the impairment prevents the claimant from performing specific jobs that exist in significant numbers in the national economy. 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) and § 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/she can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. § 404.1520(a), (b); § 416.920(a), (b); Social Security Ruling (“SSR”) 82-62 (1982). The claimant bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).

Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the regional economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart , 296 F.3d 287, 290 (4th Cir. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. § 404.1525. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, she 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 be “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, 530-31 (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).

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2002). If the Commissioner satisfies that burden, the claimant must then establish that she is unable to perform other work. Hall v. Harris , 658 F.2d 260, 264-65 (4th Cir. 1981) ; see generally Bowen , 482 U.S. at 146. n.5 (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 of Social Security made after a hearing to which he was a party....” 42 U.S.C. § 405(g). The scope of that federal court review is narrowly tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See id. , Richardson v. Perales , 402 U.S. 389, 390 (1971); Walls v. Barnhart , 296 F.3d at 290 (citing Hays v. Sullivan , 907 F.2d 1453, 1456 (4th Cir. 1990)).

The court's function is not to “try [these cases] de novo, or resolve mere conflicts in the evidence.” Vitek v. Finch , 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen , 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker , 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. “Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson , 402 U.S. at 390, 401; Johnson v. Barnhart , 434 F.3d 650, 653 (4th Cir. 2005); see also Biestek v. Berryhill , 139 S.Ct. 1148, 1154 (2019) (explaining that, “whatever the meaning of ‘substantial' in other contexts, the threshold for such evidentiary sufficiency is not high, ” as it means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion”). 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 ,

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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).

III. Analysis

Plaintiff argues that (1) the ALJ failed to give adequate reasons for the weight assigned to the opinion evidence, and (2) the ALJ made an assumption about Plaintiff's failure to pursue treatment without the requisite consideration. Pl.'s Br. 2, ECF No. 10. The Commissioner argues that the ALJ properly evaluated the medical source statements of record and that substantial evidence supports the ALJ's evaluation of Plaintiff's subjective allegations. Def.'s Br. 8, 13; ECF No. 14.

A. The ALJ's Evaluation of Opinion Evidence

For benefits applications filed on or after March 27, 2017 (such as Plaintiff's), the SSA has enacted substantial revisions to the regulations governing the evaluation of opinion evidence. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed.Reg. 5844-01, 2017 WL 168819 (Jan. 18, 2017). Under the new regulations, ALJs need not assign an evidentiary weight to medical opinions or give special deference to treating source opinions. 20 C.F.R. §§ 404.1520c(a), 416.920c(a) (providing that ALJs “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from [a claimant's] medical sources”). Instead, ALJs consider medical

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opinions using five factors: (1) supportability; (2) consistency; (3) the medical source's relationship with the claimant; (4) the medical source's specialization; and (5) other factors, such as the medical source's familiarity with the other evidence in the claim or understanding of the disability program's policies and evidentiary requirements. 20 C.F.R. §§ 404.1520c(c), 416.920c(c). The first two factors, supportability and consistency, are the most important in determining the persuasiveness of a medical source's opinion, and the ALJ is not required to explain the consideration of the other three factors. Id. §§ 404.1520c(b)(2), 416.920c(b)(2). The new regulations further deem certain evidence “inherently neither valuable nor persuasive.” 20 C.F.R. §§ 404.1520b(c), 416.920b(c). This includes statements on issues reserved to the Commissioner such as whether a claimant is disabled, is unable to work, or is incapable of doing past relevant work. 20 C.F.R. §§ 404.1520b(c)(3), 416.920b(c)(3).

1. Dr. C. Gregory Kang, Physiatrist

On September 13, 2017, Dr. Kang submitted a statement “To Whom It May Concern” regarding Plaintiff's medical condition. Tr. 350. He noted that Plaintiff had been his patient since August 30, 2017, she suffered a work-related injury to her neck, lower back, and left knee, and she had developed posttraumatic osteoarthritis of the left knee. Id. He also indicated that Plaintiff suffers from cervical and lumbar disc herniations; has chronic pain radiating from her neck into both arms with associated numbness, tingling, and weakness; and lower back pain with radiation to both lower extremities. Id. Dr. Kang noted:

[Plaintiff] has difficulty with multiple functional tasks because of these problems. She has difficulty with sitting for more than 20 minutes at a time before having to change positions. She cannot stand still for more than 20 minutes at a time before she has to change positions. Walking also for 20 minutes at a time can cause severe

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pain and she has to rest shortly thereafter. Bending, lifting, and twisting also cause her pain to be aggravated. Her condition has not improved to any appreciable degree since 2008. She has required long-term pain management and use of opiate medications to help relieve some of her pain. Because of these reasons, I do feel that [Plaintiff] is permanently disabled and incapable of any type of gainful employment.

Id.

On August 30, 2018, Dr. Kang completed a Medical Questionnaire Regarding Physical Abilities for Plaintiff. Tr. 375-78. He noted his diagnoses as cervical disc herniation, lumbar disc herniation, and osteoarthritis left knee which were supported by MRI and x-rays. Tr. 376. He indicated Plaintiff could walk, stand, or sit for one-to-two hours each in an eight-hour workday, and she would be unable to work an eight-hour day five days per week. Id. Dr. Kang indicated Plaintiff could frequently lift up to 10 pounds, occasionally lift 10-20 pounds, and never lift over 20 pounds. Tr. 377. He indicated Plaintiff was restricted in climbing stairs or ladders and in bending, and she would require rest periods during the day. He also noted that Plaintiff experienced PTSD and she experienced severe pain due to her impairments. Id. He identified symptoms associated with pain that included sleep disturbance, decreased energy, and difficulty concentrating or thinking. Id. Dr. Kang indicated that he did not expect improvement in Plaintiff's condition and felt Plaintiff's residual functional capacity was less than the full range of sedentary. Tr. 378.

2. The ALJ's Consideration of Dr. Kang's Opinions

The ALJ considered Dr. Kang's September 2017 statement and made the following determination:

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I do not find Dr. Kang's opinions are persuasive, as they are not supported by his own treatment notes, which do not reflect any strength deficits, gait abnormalities or objective findings that would support his limitations on standing, sitting and walking. Additionally, those opinions are not consistent with the other evidence of record, which reflect only conservative treatment of her symptoms with no recommendations for surgery. I find partially persuasive Dr. Kang's opinion that the claimant would have some difficulty lifting and bending, but he did not specify how much the claimant could lift or how often she could bend. Moreover, the issue of disability is one explicitly reserved for the Commissioner, making his opinions less persuasive.

Tr. 22. The ALJ also considered Dr. Kang's August 2018 opinion and determined:

I find Dr. Kang's lifting/carrying restrictions to be partially persuasive, as they are supported by his own treatment notes and consistent with the other evidence showing no strength deficits. However, I do not find the remainder of his opinions to be persuasive. His walking/standing limitations are not supported by his own treatment notes, which consistently reflect that the claimant ambulated with a normal gait. Additionally, there is no evidence showing the claimant is unable to sit for 6 hours in an 8-hour day consistent with light work. The claimant has reported she performs light household chores, drives, shops, and cares for her mother, which suggests she is capable of performing a reduced range[ ] of light work, as set forth above. Accordingly, I find Dr. Kang's statements to be inconsistent with the other evidence of record and not persuasive to the extent he indicated the claimant has greater limitations than those set forth above.

Id.

3. Discussion

Plaintiff asserts the ALJ failed to give adequate reasons for the weight he assigned to the September 2017 and August 2018 opinions of Dr. Kang. Pl.'s Br. 17-18. The Commissioner argues that the ALJ followed the new guidelines in finding Dr. Kang's opinions not entirely persuasive and substantial evidence supports his evaluation. Def.'s Br. 10.

Here, the ALJ explicitly applied the appropriate regulatory framework noting that he “considered the medical opinion(s) and prior administrative medical finding(s) in accordance with the requirements of 20 CFR 404.1520c and 416.920c.” Tr. 19. The ALJ properly applied the regulation which emphasizes the supportability and consistency factors when assessing the

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persuasiveness of the medical opinions. See 20 C.F.R. §§ 404.1520c, 416.920c. Moreover, as noted by the ALJ, an adjudicator is not bound to give any specific weight or deference to any medical provider's opinion, including those provided by treating sources. Tr. 22 . When discussing the finding about the persuasiveness of an opinion, the ALJ need only explain how he considered “the most important factors” of supportability and consistency. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). The ALJ found Dr. Kang's September 2017 opinion unpersuasive because it was not supported by his treatment notes and inconsistent with the other record evidence. Id. He did, however, find Dr. Kang's opinion regarding Plaintiff's ability to lift and bend partially persuasive. Id. Regarding Dr. Kang's August 2018 opinion, the ALJ found his lifting/carrying restrictions partially persuasive, but the remainder of the opinion unpersuasive because it was not supported by his treatment notes and inconsistent with the other evidence of record. Id.

The responsibility for weighing evidence falls on the Commissioner, not the reviewing court. See Craig v. Chater , 76 F.3d 585, 589 (4th Cir. 1996). “An ALJ's determination as to the weight to be assigned to a medical opinion will generally not be disturbed absent some indication that the ALJ has dredged up ‘specious inconsistencies,' or has not given good reason for the weight afforded a particular opinion.” Koonce v. Apfel , 166 F.3d 1209 (4th Cir. 1999) (per curiam) (unpublished) (internal citation & quotation omitted); see also 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). In undertaking review of the ALJ's treatment of a claimant's medical sources, the court focuses its review on whether the ALJ's decision is supported by substantial evidence.

The ALJ's analysis comports with the new regulations as he properly considered the supportability and the consistency of Dr. Kang's opinions. The ALJ provided an adequate explanation for why he found the opinions persuasive or unpersuasive, and properly considered them and incorporated them into his RFC to the extent he found them supportive and consistent

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with the record. Accordingly, the undersigned finds the ALJ's evaluation of the opinion evidence is in keeping with the revised regulations and is supported by substantial evidence.

B. The ALJ's Consideration of Plaintiff's Medical Treatment

Plaintiff argues that the ALJ made an assumption about her failure to pursue treatment without giving the requisite consideration. Pl.'s Br. 21. Plaintiff contends that “the ALJ rejected [her] complaints about disabling pain stating several times that [Plaintiff's] treatment remained ‘conservative' and that she had not undergone surgery.” Id. Plaintiff asserts that the medical evidence of record indicates she had financial constraints to obtaining additional treatment. Id. The Commissioner contends substantial evidence supports the ALJ's consideration of Plaintiff's subjective complaints and even if the ALJ erred in failing to consider whether Plaintiff could afford treatment, Plaintiff has not shown such an error is prejudicial. Def's Br. 13-14. The Commissioner argues that “the ALJ did not base his subjective complaint analysis (or his medical opinion analysis) solely on Plaintiff's conservative care. Rather, he considered Plaintiff's objective findings, daily activities, and pain-relief with medications.” Id. at 14. On Reply Plaintiff argues that “the ALJ noted what he considered ‘conservative' care several times throughout his decision.” Pl.'s Reply 8. Plaintiff contends this error “infected” the ALJ's decision and was not harmless. Id.

In his RFC assessment the ALJ noted that in making his RFC finding he considered all of Plaintiff's symptoms based on the requirements of the applicable regulations and SSR 16-3p. Tr. 19. The ALJ discussed Plaintiff's hearing testimony regarding her pain symptoms and daily activities. Tr. 20. The ALJ also outlined Plaintiff's treatment history related to her spinal issues and mental health issues. Tr. 21. This included treatment records from May and November 2018, and January 2019, where Plaintiff reported that her medication provided her with sufficient pain control so that she could care for her mother. Id. The ALJ found:

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Treatment of the claimant's back pain has been conservative, as she testified she has received only epidural steroid injections and that no surgery has been recommended. There are no strength deficits or gait abnormalities documented to corroborate her allegations regarding her limited ability to stand, walk and sit. While I have accounted for the claimant's symptoms in limiting the amount she can lift, carry, and perform postural activities, there are no objective findings showing the claimant's back impairment imposes greater limitations.

Id.

Under SSR 16-3p, the ALJ “will consider and address reasons for not pursuing treatment that are pertinent to an individual's case” including whether “[a]n individual may not be able to afford treatment and may not have access to free or low-cost medical services.” SSR 16-3p, 2017 WL 5180304 at *10. Although Plaintiff did not testify at the hearing that she did not pursue any necessary treatment due to an inability to pay for it, in his decision the ALJ, in citing to Plaintiff's conservative medical treatment, indicated that she testified that “no surgery has been recommended.” Tr. 21. This is not accurate. Plaintiff's testimony in response to the ALJ's questions at the hearing was as follows:

Q Okay. For your back condition have you -- I noticed in the last hearing decision that you had some injections and things of that nature for treatment; is that correct?

A Yes.

Q And -- but you haven't had surgery, have you?

A No.

Q Okay. And what does Dr. Kang provide for you besides medication, anything else?

A Not right now, no.

Tr. 47-48. As Plaintiff noted in her Brief, in November 2018 her doctor indicated that Plaintiff needed a referral to an orthopedic surgeon but she was unable to afford it. Pl.'s Br. 22. The inability to seek a consultation to determine if surgery is needed is different than no recommendations for surgery. While the ALJ cited other reasons in support of his RFC determination, his decision seems to rely largely on Plaintiff's pain being controlled by medications, and the fact that she did not

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have surgery. However, the ALJ's failure to properly address this issue means that the undersigned cannot determine how much weight the ALJ placed on this factor. Accordingly, remand is recommended on this issue. Fleming v. Astrue , C/A No. 5:11-304-DCN-KDW, 2012 WL 3686622 (D.S.C. Jul. 10, 2012), adopted by 2012 WL 3679628 (D.S.C. Aug. 24, 2012) (remanding the case where the ALJ considered the plaintiff's failure to seek treatment as a factor in the disability determination, and the record reflected that the plaintiff did not have the financial resources to obtain treatment).

IV. Conclusion and Recommendation

The court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported as a matter of fact and law. Based on the foregoing, the court cannot determine that the Commissioner's decision is supported by substantial evidence and recommends that the Commissioner's decision be reversed and remanded for further consideration as detailed above.

IT IS SO RECOMMENDED.

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

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Notes:

Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the court substitutes Kilolo Kijakazi for Andrew Saul as Defendant in this action.

Although the application summaries are dated July 24, 2017, Tr. 240-47, the Disability Determination and Transmittals reflect a filing date of June 19, 2017, Tr. 94-95.

Plaintiff had previously filed a claim for DIB on January 14, 2014, that was denied on April 11, 2017 after an administrative hearing. Tr. 54-66.

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.

The new regulations define a “medical opinion” as “a statement from a medical source about what you can still do despite your impairment(s) and whether you have one or more impairment-related limitations or restrictions” in the abilities to perform the physical, mental, or other demands of work activity or to adapt to environmental conditions. 20 C.F.R. §§ 404.1513(a)(2), 416.913(a)(2). Those regulations also define a “prior administrative medical finding” as a “finding, other than the ultimate determination about whether [a claimant is] disabled, about a medical issue made by [the SSA's] Federal and State agency medical and psychological consultants at a prior level of review.” 20 C.F.R. §§ 404.1513(a)(5), 416.913(a)(5).

In addition to Dr. Kang's September 2017 Statement and August 2018 Medical Questionnaire, the ALJ also considered an opinion from Dr. Kang in January 2018. Because Plaintiff does not assign any error to the ALJ's evaluation of that opinion, the undersigned will not discuss it here.

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