South Carolina Cases November 29, 2022: Moore v. Kijakazi

Case Description

1

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

KAYMANI D. WEST, 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 his 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 12, 2018, Plaintiff protectively filed an application for DIB alleging he became disabled on June 10, 2018. Tr. 150-55. Plaintiff's application for DIB was denied initially on December 18, 2018, Tr. 85, and on reconsideration on April 23, 2019, Tr. 99. Plaintiff filed an application for SSI on May 20, 2019. See Tr. 23. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). Tr. 109-10. ALJ Nicole Forbes-Schmitt conducted an

2

administrative hearing on July 11, 2019, taking testimony from Plaintiff, a lay witness, and Vocational Expert (“VE”) Thomas Neil. Tr. 37-65. The ALJ denied Plaintiff's claim for DIB and SSI in a decision dated August 21, 2019. Tr. 20-32. On September 20, 2019, Plaintiff requested review of this decision by the Appeals Council. Tr. 148-49. On June 23, 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 August 2019 decision, Tr. 5-9. After receiving an extension of time to file his civil action, Tr. 1, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a Complaint filed on December 30, 2021. ECF No. 1.

B. Plaintiff's Background

Born in January 1980, Plaintiff was 38 years old on his potential onset date of June 10, 2018. Tr. 184. In his July 16, 2018 form Disability Report-Adult Plaintiff indicated that he was 5'11” tall and weighed 205 pounds. Tr. 188. Plaintiff indicated that he completed one year of college in 2001, did not attend special education classes, and did complete any type of specialized job training, trade or vocational school. Tr. 189. Plaintiff indicated he stopped working on June 10, 2018 because of his conditions which he listed as right paramedian disc protrusion L5-S1, right paramedian foraminal disc protrusion L4-5, fractured right ankle, multilevel facet arthropathy foraminal narrowing L5-S1, and severe left foraminal narrowing at ¶ 5-S1. Tr. 188. Plaintiff listed the following jobs in his job history: landscaper (2003-2005), dry cleaning delivery truck driver (2006-2007), restaurant short order cook (2008-2013), and industrial company custodian/janitor (Jan. 1, 2015 - June 10, 2018). Tr. 189.

C. Administrative Proceedings

Plaintiff appeared for his administrative hearing on July 11, 2019 in Charleston, SC before ALJ Forbes-Schmitt. Tr. 37. Lay witness Joni Miles also appeared, along with VE Neil. Id. The

3

ALJ explained to Plaintiff about his right to representation however Plaintiff indicated that he wished to proceed without representation. Tr. 39-41.

1. Plaintiff's Testimony

In response to questions from the ALJ Plaintiff confirmed that he was 39 years old and had one year of college education but he did not receive a degree or certificate. Tr. 41. Plaintiff confirmed that in 2004 he worked for Precision Lawn and Care Services doing landscaping. Id. The ALJ noted that job was the only job performed at the SGA level so that would be the only job he would consider. Tr. 42. Plaintiff stated that he last worked in June 2018 doing janitorial work. Id.

Plaintiff testified that he was disabled and unable to work because he is in severe pain, has anxiety, depression, paranoia, and sleep apnea. Tr. 42. Plaintiff stated that “just started recently” getting psychiatric treatment for his conditions from Dr. Anil Juneja. Tr. 42-43. Plaintiff stated that he had received psychiatric care previously in 2010. Tr. 43. Plaintiff testified that his back issues started three years ago. Id. He stated that he was evaluated by an orthopedic doctor on May 24, 2019. Tr. 44. Plaintiff testified that he is “in pain all the time” and only gets relief from lying down. Tr. 45. Plaintiff also testified he has social anxiety and rarely goes out in public; he has extreme paranoia, and he has 15 cameras around his house and locks his refrigerator when he leaves; and he is depressed and does not feel motivated to do anything. Id. Plaintiff stated that because he does not like to take medicine Dr. Juneja recommended turmeric. Id. Plaintiff stated that he does not take anything for his back pain because he believes that it will only mask the pain

4

and then he will do something inadvertently to make the condition worse. Id. Plaintiff acknowledged that his back will “lock up every so often where [he] can't move” and when that happens, he will “have to take some Flexeril to loosen it up.” Tr. 45-46. The ALJ noted that Dr. Highsmith had recommended an anti-inflammatory and opined that Plaintiff “would probably be unable to tolerate work as a landscaper or janitorial services, anything with significant bending, lifting, or twisting.” Tr. 46. Plaintiff testified he was unaware of the prescription but agreed with the opinion. Tr. 46-47.

Plaintiff provided the ALJ with a copy of his psychiatric evaluation. Tr. 47. The ALJ asked if he had ever been diagnosed with schizophrenia and Plaintiff testified that in 2010 Dorchester Mental Health diagnosed him with schizophrenia and psychosis. Id. Plaintiff stated that he stopped going “because all they wanted to do was pump [him] full of drugs and [he's] not down with that. Because one time [he] took it and [he] felt like [he] almost died. It made [his] heart race, and [he] had to go to the hospital[.]” Id.

2. Lay Witness Testimony

Plaintiff's girlfriend, Joni Miles, testified that she and Plaintiff did not live together, but she has known him 21 years. Tr. 48. She stated that she is familiar with Plaintiff's medical conditions and they share his paperwork. Tr. 48-49.

Ms. Miles testified that Plaintiff has severe back pain that is “very debilitating.” Tr. 49. She stated that he has pain doing basic ADLs and after the one-hour car ride to the hearing he was “on the floor.” Id. She stated that after a trip to the grocery store Plaintiff has to lie down for four hours in a supine position to relieve the pain. Id. Ms. Miles stated that she has to lift items, pick up items from the floor, and do yardwork because Plaintiff is unable to do it. Id. She stated that Plaintiff “has a disruption at ¶ 5 to S1.” Tr. 50. Ms. Miles testified that Dr. Highsmith indicated

5

that Plaintiff's degenerative joint disease is hereditary and the only surgery that can help is decompression surgery which they cannot afford. Id. She testified that the doctor indicated that shots would not be beneficial. Id. Ms. Miles stated that they have “tried all kind of different things” including inversions, massage, taking natural remedies, Flexeril, and CBD oil but “nothing is long-lasting.” Id. Ms. Miles testified that she is an occupational therapist so she can give Plaintiff massages and manipulate his back. She stated that he has also used TENS units. Ms. Miles testified that they have tried all the therapeutic modalities for years. Tr. 50-51. She testified that she finally convinced Plaintiff to see a psychiatrist because he needed documentation to back up his claims. Tr. 51. She stated that Plaintiff was “diagnosed with schizoaffective disorder probably 12 years ago at Palmetto Health. He went to mental health for years and years.” Id. Ms. Miles testified that that the mental health clinic was not very effective, the medications stopped working, and then Plaintiff just did not go there and could not afford to go anywhere else. Id. She stated that she has been helping him pay for doctors' appointments. Id.

Ms. Miles testified that they are unable to do a lot of social activities because Plaintiff does not like to leave the house, including going to her house. Tr. 51. She stated that Plaintiff “wants to be in his home, that is where he feels safe, that's where he feels comfortable.” Id. She stated that Plaintiff has “severe paranoia” and “he thinks everybody may be on cocaine or meth if they're not exactly like him.” Tr. 51-52. She testified that Plaintiff has accused her of doing meth or cocaine and she has “had to take drug screens on more than one occasion” even though he trusts her the most. Tr. 52. She stated that if she is unable to prove what she is saying, Plaintiff “may not talk to [her] for two weeks or a month.” Id. She stated that Plaintiff “cycles” and “he may be great for a month or two and then it may all of a sudden get extremely worse and that may last for a month

6

or three months to where that's just how he is. He has cameras all over his entire property, inside and outside of the home including the bedroom and the bathroom.” Id.

Plaintiff interjected that “You can't trust people.” Tr. 52. Ms. Miles testified that Plaintiff believes the government is watching him and has tape over the camera on his phone, but “there's no really great reason why ....” Id. Plaintiff again interjected that he could “give you a reason; Satan has been released for a little while.” Id. Ms. Miles noted that he studies the Bible a lot. Tr. 53. She also testified that he has locks on his refrigerator because he believes people were poisoning him. She stated that he would not leave any food in her refrigerator. Id. She stated he also has duct tape on his dresser drawers so that he would know if someone went in his drawers. She stated that “he will set traps like that throughout his house.” Id. Plaintiff interjected that he found a flashlight outside of one of his windows and someone was “peeping in [his] windows.” Id. Ms. Miles acknowledged that some “strange things” have happened including someone trying to “repo his car even though he has a clean title” and that caused a lot of stress. Id. She also noted that there was a “strange flashlight outside one of his windows and it was not mine or his.” Tr. 53-54. Ms. Miles testified that Plaintiff is unable to accept and move on from those types of things and it will affect his daily life. Tr. 54.

The ALJ noted that “the testimony that's offered today is not consistent with the records that are in your case file; these [documents provided by Plaintiff] help.” Tr. 54. The ALJ indicated that she may order a physical and mental consultative examination to get additional documentation into the case file. Id.

3. VE's Testimony

The VE identified Plaintiff's past work as landscape laborer, Dictionary of Occupational Titles (“DOT”) number 408.687-014, heavy exertion level, SVP of 2, unskilled work; and

7

custodian/janitor, DOT number 382.664-010, medium exertion level, SVP of 3, beginning of semiskilled work. Tr. 55. The ALJ asked VE Neil to assume a person of Plaintiff's age, education, and identified past work limited to a medium residual functional capacity (“RFC”). Id. The ALJ noted the person “would be limited to simple, repetitive tasks with only occasional interaction with the general public. Also, only occasional interaction with coworkers. Additional occasional climbing of ladders, ropes, scaffolds.” Id. The ALJ asked if a person with those restrictions could perform either of Plaintiff's past jobs. The VE responded in the negative noting that the exertional level on the landscaping job was higher than medium, and the skill level on the custodian job was a three. Id. The VE identified the following available jobs at the unskilled and medium level: laundry marker, DOT number 369.687-026, SVP of 2, approximately 15,000 nationally; machine cleaner, DOT number 699.687-014, SVP of 2, unskilled, approximately 27,000 nationally; and industrial cleaner, DOT number 381.687-018, SVP of 2, approximately 35,000 nationally. Tr. 56. The VE affirmed that, to the best of his knowledge, his testimony was consistent with the DOT. Id.

Plaintiff's lay witness interjected to state that Plaintiff's last job was as an industrial janitor and he had to give up that job. Tr. 56. Plaintiff noted that he “went to the vocational rehab and they said they didn't have anything for [him].” Tr. 56-57. The lay witness noted that vocational rehab told Plaintiff that he would have to work a minimum of 30 hours, but with his need to lie down he would be unable to work. Tr. 57. Both Plaintiff and the witness noted that Plaintiff had to leave the industrial janitorial job three miles from his house where he was making $ 70,000 a year working 16 hours a week because it caused him “excruciating pain” and he would have to lie down for 8-10 hours the following day. Id. They noted that Plaintiff lives in a rural community without a lot of job opportunities and that he had looked for work in Summerville but given the

8

number of hours he would be able to work, he is “basically making zero by the time you pay for the gas to get to where the job is going to hire you.” Tr. 58. The lay witness also noted the discrepancies in Dr. Highsmith's report versus what they were told at the appointment regarding Plaintiff's capabilities and available treatment, and she spoke of their attempts to obtain an amended report. Tr. 59-61. She also explained Plaintiff's attempts to find legal representation for the hearing. Tr. 61-63. In response to Plaintiff's question regarding the relevant period, the ALJ explained that the date last insured was used for DIB, and the current date was used for SSI. Tr. 63. The ALJ noted that he was “going to take a look at the evidence again” and may order consultative examinations. Tr. 64.

With no further questions, the hearing concluded. Tr. 65.

II. Discussion

A. The ALJ's Findings

In her August 21, 2019 decision, the ALJ made the following findings of fact and conclusions of law:

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2018.

2. The claimant has not engaged in substantial gainful activity since June 10, 2018, the alleged onset date (20 CFR 404.1571 et seq ., and 416.971 et seq. ).

3. The claimant has the following severe impairments: lumbar degenerative disc disease, status-post right ankle fracture, chronic schizophrenia, and anxiety (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).

9

5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c) except that he could occasionally climb ladders, ropes, or scaffolds and he is limited to simple, repetitive tasks with only occasional interaction with general public and coworkers.

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

7. The claimant was born on January 23, 1980 and was 38 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 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, 404.1569a, 416.969, and 416.969a).

11. The claimant has not been under a disability, as defined in the Social Security Act, from June 10, 2018, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

Tr. 25-27, 31-32.

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

10

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 (“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).

11

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. 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)).

12

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 , 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 provide adequate reasons for her credibility determination, and (2) the ALJ improperly evaluated the opinion evidence. Pl.'s Br. 1-2, ECF No. 15. The Commissioner argues that substantial evidence supports the ALJ's evaluation of Plaintiff's subjective complaints and her evaluation of the opinion evidence. Def.'s Br. 9, 13; ECF No. 17.

A. The ALJ's Consideration of Plaintiff's Subjective Statements

13

Plaintiff argues that in “assessing a claimant's subjective complaints the ALJ's decision must contain specific reasons for his finding, supported by the evidence in the case record.” Pl.'s Br 15. The Commissioner argues that the “ALJ's discussion satisfied this standard by reviewing Plaintiff's allegations and then thoroughly reviewing the medical and other evidence in the record (Tr. 27-29).” Def.'s Br. 11.

A claimant's subjective allegations of pain or other symptoms alone can never establish disability. 42 U.S.C. § 423(d)(5)(A); SSR 16-3p, 2016 WL 119029, at *2 (Mar. 16, 2016). Rather, the ALJ must consider “the extent to which [statements about subjective] symptoms can reasonably be accepted as consistent with objective medical evidence and other evidence” in the record. Id . SSR 16-3p provides a two-step process for evaluating an individual's symptoms. First, the ALJ must determine whether the individual has a medically determinable impairment “that could reasonably be expected to produce the individual's alleged symptoms.” SSR 16-3p, 2017 WL 5180304, at *3. In the second step the ALJ must “evaluate the intensity and persistence of an individual's symptoms such as pain and determine the extent to which an individual's symptoms limit his or her ability to perform work-related activities ....” Id. at *4. The ALJ has the sole responsibility to weigh the claimant's complaints against the record as a whole, and she may discount them when they are unsupported. Craig v. Chater , 76 F.3d 585, 592-95 (4th Cir. 1996).

In assessing Plaintiff's statements regarding his symptoms, under its scope of review, the court cannot make credibility determinations but may review the ALJ's decision to determine whether substantial evidence supports the ALJ's credibility assessment. Johnson v. Barnhart , 434 F.3d 650, 658 (4th Cir. 2005). This court is not tasked with the position of re-weighing evidence to make a new credibility determination. See Hancock v. Astrue , 667 F.3d 470, 471 (4th Cir. 2012) (“[i]n reviewing for substantial evidence, we do not undertake to reweigh conflicting evidence,

14

make credibility determination, or substitute our judgment for that of the [ALJ]”) (citing Johnson , 434 F.3d at 653).

The ALJ outlined the two-step process that she is required to follow when considering Plaintiff's symptoms. Tr. 27. After considering Plaintiff's hearing testimony and his subjective statements the ALJ determined that:

After careful consideration of the evidence, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.

As for the claimant's statements about the intensity, persistence, and limiting effects of his [ ] symptoms, they are inconsistent because the objective evidence of record fails to support the degree of limitation alleged.

Tr. 28. The ALJ then outlined the objective medical evidence including diagnoses and treatment for Plaintiff's back pain, ankle fracture, anxiety, and schizophrenia. Tr. 28-29. The ALJ also considered the lay witness testimony and the medical opinions of record. Tr. 29-31. The ALJ concluded:

Although the claimant's allegations of such significant limitations and pain were not fully consistent with the medical evidence of record, the undersigned accorded the claimant the benefit of the doubt and further reduced the residual functional capacity to include his limitations as described above. However, the undersigned cannot find the claimant's allegations that he is incapable of all work activity to be consistent with the record as a whole.

Tr. 31.

Plaintiff asserts that the ALJ's explanation regarding Plaintiff's subjective statements failed to adequately support her findings, and that the ALJ's summary of the medical evidence “simply does not show how [Plaintiff's] complaints are incredible.” Pl.'s Br. 17. Plaintiff contends that the ALJ “essentially” did something proscribed by SSR 16-3p because instead of “ specifying

15

what records [s]he is referring to-[s]he makes a ‘single, conclusory statement that the ‘individual's allegations have been considered' or that the ‘allegations are (or are not) credible.'” Pl.'s Br. 18 (quoting SSR 16-3p, 2017 WL 5180304 at *10, emphasis in Pl.'s Br.). The Commissioner contends the ALJ did what was required of her in that “[c]onsistent with the regulations, the ALJ considered the entirety of Plaintiff's subjective complaints including his hearing testimony, his statements regarding the treatment he received, his statements regarding his symptoms and functional limitations, and his statements regarding the limitations in his activities of daily living (Tr. 27-29).” Def.'s Br. 11. On reply Plaintiff argues that the ALJ failed to explain her rejection of Plaintiff's allegations and her “summary of the evidence does not provide specific reasons for discrediting [Plaintiff's] complaints.” Pl.'s Response Br. 2, ECF No. 18.

Pursuant to SSR 16-3p, when “considering the intensity, persistence, and limiting effects of an individual's symptoms, [the ALJ will] examine the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record.” 2017 WL 5180304 at *4. Here, while the ALJ made a statement that Plaintiff's symptoms were considered and they were not entirely consistent with the evidence of record, the ALJ did not stop there. Instead she went on to discuss the medical evidence and opinions noting that the evidence failed to support the degree of limitation Plaintiff alleged. Tr. 28. For example, Plaintiff complained of back pain and ankle fracture, but an April 2018 consultative examination noted that Plaintiff had “full range of motion of the back. He had full range of the right ankle. Straight leg raising was negative bilaterally. Gait was normal.” Tr. 28. The ALJ also noted Plaintiff's ongoing complaints of anxiety and cited to

16

multiple records where evaluators indicated Plaintiff had some mental impairments along with some normal behaviors. Tr. 28-29.

Based on the undersigned's review of the record and applicable law, the undersigned finds that the ALJ's decision reflects that she followed the two-step process in evaluating Plaintiff's symptoms, identified evidence in the record to support her conclusion, and the court is able to assess how she evaluated Plaintiff's symptoms. SSR 16-3p, 2017 WL 5180304 at *10. Accordingly, the undersigned finds that the ALJ properly applied SSR 16-3p and her determination regarding Plaintiff's subjective statements is supported by substantial evidence.

B. The ALJ's Evaluation of Opinion Evidence

Plaintiff asserts that the ALJ's findings regarding the opinion of Dr. Highsmith are “unreasonable” and “insufficient.” Pl.'s Br. 21. The Commissioner contends that “the ALJ thoroughly assessed the persuasiveness of the medical opinions and prior administrative findings against the record as a whole, and explained how the factors of supportability and consistency were considered in evaluating Dr. Highsmith's opinion (Tr. 30).” Def.'s Br. 14.

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

17

finding(s), including those from [a claimant's] medical sources”). Instead, ALJs consider medical 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).

Here, the ALJ considered the opinions of three examining physicians-Drs. Kumar, Spivey, and Highsmith-and two State agency non-examining physicians-Drs. Worsham and Steadham. Tr. 30-31. The ALJ was persuaded by Dr. Kumar's April 2018 opinions, finding “they are generally consistent with his findings on examination and are well supported by the weight of the evidence of record.” Tr. 30. The ALJ was persuaded by Dr. Spivey's November 2018 opinions finding “they are consistent with the claimant's presentation upon examination and are well

18

supported by the weight of the evidence of record.” Id. The ALJ was also “persuaded by the opinions of Drs. Worsham and Steadham as they are generally consistent with the claimant's presentation upon examination and are well supported by the weight of the evidence of record.” Tr. 31. The ALJ, however, was unpersuaded by the opinions of Dr. Highsmith, and Plaintiff takes issue with the ALJ's findings.

1. Jason M. Highsmith, M.D.

On May 24, 2019, Dr. Highsmith completed a New Patient Evaluation of Plaintiff and a Medical Opinion Re: Ability to do Work-Related Activities (Physical). Tr. 573-78. He noted Plaintiff's “Chief Complaint” as low back pain. Tr. 573. After physical examination, Dr. Highsmith's diagnostic impression was: “1. Axial low back pain with right lower extremity radiculopathy. 2. Lumbar disc disruption L3 through S1, most notable at ¶ L4-5 and L5-S1.” Tr. 574. Dr. Highsmith recommended Plaintiff undergo a trial of over-the-counter nonsteroidal antiinflammatories and, if symptoms persisted, Dr. Highsmith noted that Plaintiff would be “a candidate for L4-S1 epidural steroid injections where the most definitive surgical treatment would include posterior decompression at the L4-5 level and possibly L5-S1.” Id. Dr. Highsmith noted that Plaintiff would be “unable to tolerate” his previous work and that “[a]ny significant bending, lifting or twisting will cause severe exacerbation of his pain.” Id.

In the Medical Opinion form Dr. Highsmith indicated Plaintiff's maximum ability to lift and carry on an occasional and a frequent basis was 10 pounds, his maximum ability to stand and walk during an eight-hour day was less than two hours, his maximum ability to sit during an eighthour day was about two hours, and he could sit or stand for 15 minutes before changing positions. Tr. 575. Dr. Highsmith indicated Plaintiff must walk around every 15 minutes for the duration of 45 minutes, he would need the opportunity to shift at will from sitting or standing/walking, and he

19

will sometimes need to lie down at unpredictable intervals during a work shift. Tr. 575-76. In response to the question asking what medical findings supported these limitations, Dr. Highsmith noted: “multilevel lumbar discs.” Tr. 576. Dr. Highsmith indicated Plaintiff could never twist, stoop (bend), or crouch; and he could occasionally climb stairs and ladders. Id. He indicated reaching, handling, fingering, and feeling were affected by the impairment, but pushing and pulling was not affected. Id. Dr. Highsmith noted the physical functions were affected by “pain” and the medical findings to support this were “nerve impingement.” Id. Dr. Highsmith indicated Plaintiff should avoid all exposure to extreme cold; avoid moderate exposure to extreme heat, fumes, odors, dust, gases, poor ventilation, and hazards; and avoid concentrated exposure to wetness, humidity, and noise. Tr. 577. Dr. Highsmith noted that Plaintiff should have “limited ambulation” and “no crawling, kneeling.” Id. He indicated Plaintiff would be absent from work more than three times a month due to his impairments or treatment. Tr. 578.

2. The ALJ's Consideration of Dr. Highsmith's Opinion

The ALJ considered Dr. Highsmith's May 2019 opinion and made the following determination:

The undersigned is not persuaded by Dr. Highsmith's opinions as they are inconsistent with his own findings on examination and are unsupported by the weight of the evidence of record. Indeed, Dr. Highsmith's opinion appears to be merely a recitation of the claimant[']s subjective complaints, rather than based on objective evidence. Moreover, Dr. Highsmith only recommended conservative treatment for the claimant's low back pain, and his records are devoid of any evidence that would support the environmental restrictions in his medical source statement.

Tr. 30.

3. Discussion

Here, the ALJ explicitly applied the appropriate regulatory framework noting that she “considered the medical opinion(s) and prior administrative medical finding(s) in accordance with

20

the requirements of 20 CFR 404.1520c and 416.920c.” Tr. 27. Moreover, as noted by the ALJ, an adjudicator is not bound to give any specific evidentiary weight or deference to any medical provider's opinion, including those provided by medical sources. Tr. 29 . When discussing the finding about the persuasiveness of an opinion, the ALJ need only explain how she considered “the most important factors” of supportability and consistency. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). After discussing Dr. Highsmith's physical examination of Plaintiff, the ALJ found his opinions unpersuasive because they were inconsistent with his examination findings and unsupported by the other record evidence. Tr. 30.

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). 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.

Plaintiff argues that the ALJ's findings are insufficient because, as required by the regulations, she failed to articulate how she considered the supportability and consistency factors in evaluating the opinion evidence. Pl.'s Br. 21 (citing 20 C.F.R. § 404.1520c(c)2, § 416.920c(c)2). By way of explanation the ALJ stated that the opinion “appears to be merely a recitation of the claimant's subjective complaints,” Tr. 30, but Plaintiff argues that Dr. Highsmith conducted a detailed physical examination producing positive clinical findings, Pl.'s Br. 21. Furthermore, Plaintiff notes that while the ALJ indicated Dr. Highsmith “only recommended conservative treatment” of nonsteroidal anti-inflammatories for his back pain, she failed to note that Dr. Highsmith also indicated that he would be candidate for surgical injections or possible surgical treatment.

21

The undersigned agrees with Plaintiff that the ALJ's explanation for her consideration of the supportability and consistency factors falls short. This is especially true given that Dr. Highsmith's examination was an entire year after the vocational rehabilitation examination of Dr. Kumar that the ALJ found persuasive, and the ALJ assessed Plaintiff with “lumbar degenerative disc disease” which by its nature implies an impairment that worsens over time. Tr. 25 (emphasis added). “[A]ilments, such as degenerative disc disease are, by their nature, diseases that worsen with time. Thus, . . . the particular diseases in question are those that generally increase in severity over time, or at the very least, do not improve.” Tucker v. Colvin , No. 0:15-CV-03750-RBH, 2017 WL 382429, at *4 (D.S.C. Jan. 27, 2017). Although Dr. Highsmith did not have a long treatment relationship with Plaintiff, he did provide some-albeit sparse-medical support for his findings. So, it is unclear why the ALJ stated that his opinion “appears to be “merely a recitation of the claimants [sic] subjective complaints, rather than based on objective evidence.” Tr. 30. Stanley v. Kijakazi , No. CV 5:20-3030-RMG, 2021 WL 5768650, at *4 (D.S.C. Dec. 6, 2021)(finding that the ALJ's assertion that the doctor's opinion “appears heavily reliant on the claimant's subjective reports” to be “nothing short of rank speculation and is not supported by the record.”). Furthermore, as Plaintiff indicated, the ALJ did not consider the other treatments Dr. Highsmith indicated would be appropriate if Plaintiff's symptoms persisted. Lewis v. Berryhill , 858 F.3d 858, 869 (4th Cir. 2017) (finding that “the ALJ's designation of [the claimant's] course of treatment as ‘conservative' amounts to improperly ‘playing doctor' in contravention of the requirements of applicable regulations.”).

22

Here, the ALJ's analysis falls short in explaining her consideration of Dr. Highsmith's opinion. Accordingly, the undersigned recommends a finding that the ALJ's evaluation of the opinion evidence is not supported by substantial evidence and the decision should be remanded for further explanation.

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 regarding the evaluation of opinion evidence 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.”