Saunders v. Saul

          MEMORANDUM OPINION

          M. HANNAH LAUCK UNITED STATES DISTRICT JUDGE.

         Plaintiff Alan Saunders challenges the decision of the Commissioner of the Social Security Administration (the “Commissioner”) denying his claims for Social Security Disability after finding he lacked disability. This matter comes before the Court on the Report and Recommendation (“R&R”) prepared by the Honorable David J. Novak, then-United States Magistrate Judge, (ECF No. 12), addressing the parties' cross-motions for summary judgment, (Pl.'s Mot. Summ. J., ECF No. 9; Def.'s Mot. Summ. J., ECF No. 11). The R&R recommends that this Court deny Saunders's Motion for Summary Judgment, grant the Commissioner's Motion for Summary Judgment, and uphold the final decision of the Commissioner. Saunders objects to the R&R (the “Objection”). (Pl.'s Obj. R&R, ECF No. 13.) The Commissioner responded to Saunders's Objection. (Def.'s Resp., ECF No. 14.) The Court exercises jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).^[1]

         For the reasons articulated below, the Court will sustain Saunders's Objection. Accordingly, the Court will grant in part Saunders's Motion for Summary Judgment, deny the Commissioner's Motion for Summary Judgment, and remand this matter to the Commissioner for proceedings consistent with this Memorandum Opinion. The Court denies at this procedural posture Saunders's request to remand solely for the purpose of awarding benefits.

         I. BACKGROUND

         The instant case involves Saunders's claim for Social Security Disability Benefits under the Social Security Act, alleging disability from lumbar degenerative disease and migraines, with an amended alleged onset date of November 22, 2015. (R. 15, 203-04, 244-50, 266.) On March 23, 2018, an Administrative Law Judge (“ALJ”) issued a written opinion finding that Saunders had the Residual Functional Capacity (“RFC”) to perform work “at a light level of exertion” and the capability of performing his past relevant work as an investigator, school administrator, and administrative management officer, meaning that he did not qualify for disability benefits. (R. 15-27.) For purposes of this appeal, the Court summarizes the relevant portions of the record and the ALJ's opinion concerning Saunders's RFC and his ability to work on a continuing basis. See SSR 96-8p, 1996 WL 374184, at *1, *7 (footnote omitted) (defining “regular and continuing basis” as eight hours per day for five days per week, or an equivalent work schedule).

         A. Saunders's Description of his Disability and Corresponding Medical Records

         Saunders, currently 59-years-old, filed in 2017 an application for disability benefits, alleging that he “struggle[s] to perform the simplest of tasks-from dressing myself, to sleeping, may obtain a review of such decision by a civil action . . . in [a] district court.” 42 U.S.C. § 405(g). Section 1383(c)(3) confirms that “[t]he final determination of the Commissioner after . . . a hearing . . . shall be subject to judicial review as provided in section 405(g).” 42 U.S.C. § 1383(c)(3). to maintaining my home and property, and maintaining social relationships.” (R. 245.) Saunders bases his disability claim on “recurrent episodes of acute, incapacitating lumbar pain and sacroiliac dysfunction” that occur “several times per year and can last weeks at a time, ” leaving him unable to perform basic tasks during those periods. (R. 245.) Because of his physical decline and related pain, Saunders sold his home and moved into an apartment during the relevant time period. (R. 44, 245.)

         Saunders's medical records documented these pain episodes. Briefly, Saunders's records reflect that he sought frequent treatment for back pain from a number of providers, ranging from injections, radiofrequency ablation, surgery, chiropractic care, medication, and physical therapy. On June 7, 2016, for example, Dr. J. Michael Simpson of Tuckahoe Orthopedics stated that Saunders had a “more recent exacerbation of pain spasm which really put him down for a month or so.” (R. 352.) One month later, on July 18, 2016, Saunders sought care at Fort Belvoir Community Hospital, reporting “increas[ing] episodes of pain with longer duration.” (R. 668.) Two months later, on September 7, 2016, Saunders presented for a return consultation at Fort Belvoir Community Hospital, seeking help for back pain that he again claimed affected his activities and daily living. (R. 661.)

         Between September 21, 2016 and December 21, 2016, Saunders also sought treatment at the Virginia Spine Institute. (R. 415, 422, 425, 430.) Saunders's medical doctor at that location observed that medication, injections, physical therapy, and radiofrequency ablation did not remedy Saunders's back pain. (R. 430 (doctor observing “patient has also failed medication, PT, RFA for the SI joint multiple times, multiple injections including SI joint and epidurals, ” “has also clearly failed time, rest, ice, and activity modification, ” and noting Saunders has “grown quite frustrated with his symptoms and their daily effect on his life”).)^[2] As a result, Saunders sought care at the National Spine and Pain Center. (See R. 1035-53.) In December 2016, a discography procedure revealed degenerative changes in Saunders's spine. (R. 416-18.) Although his healthcare providers recommended surgical treatment, Saunders declined such treatment because he had seen the surgical procedure produce mixed results. (R. 50-52, 423.) Instead, Saunders received two joint block injections to reduce his pain, but the relief that the injections provided lasted only twenty-three days. (R. 425.) In December 2016 and January 2017, two independent physicians observed that Saunders's medical treatment provided him only temporary relief and recommended more invasive procedures, including surgery. (R. 638, 1037- 38.)

         Saunders continued undergoing treatment and injections to moderate his back pain. (R. 1064, 1276.) During the six month period between May 22, 2017 and December 20, 2017, Saunders presented at Dynamic Rehab and Spine, LLC twenty-three times. (R. 1133-80.) At those appointments, Saunders generally ranked his back pain between five and seven on a scale of ten, though he twice ranked his pain as high as ten out of ten and occasionally as low as four out of ten within that six-month period. (Id.) To ease his back pain, in February 2017, Saunders underwent a radiofrequency ablation procedure. (R. 911, 1030.) Thereafter, on two separate occasions in June 2017 and August 2017, he received more injections for his back pain. (R. 1030, 1064, 1276.) During an appointment at Fort Belvoir Community Hospital on December 28, 2017, Saunders informed the medical doctor that the injections and physical therapy proved “modestly effective, ” though he had decided to consider joint fusion surgery. (R. 1244-45.) The doctor at Fort Belvoir also recorded that Saunders had explained that his back pain consisted of “occasional flares that can run from incapacitating to modestly limiting; the pain affects activities of daily living, [and] the pain is aggravated by strenuous activity.” (R. 1244.)

         B. Testimony Presented During the Hearing on Saunders's Claim

         The ALJ held a hearing prior to rendering her written opinion about Saunders's disability claim. (R. 33-83.) During that hearing, Saunders testified that “after a particularly severe round of acute lumbar episodes [including] the usual lumbar spine injections . . . [he] sold [his] house” because maintaining his property only exacerbated his back pain. (R. 44.) Saunders explained that he was contracting out things he used to enjoy, such as mowing the grass, and that he had to get rid of those physical chores because of the resulting harm. (R. 44.) Saunders further stated that during “any kind of a back episode, which occurs anywhere . . . I won't bend, lift, or twist, meaning I won't pick up anything. If it falls on the floor, that's where it stays.” (R. 45.) Saunders explained to the ALJ that he could go “from a fairly functional individual, during the course of a night's sleep, to my back giving me trouble, which will kick in a cycle of chiropractic visits, which I do two or three times a month, to steroid injections, which I do periodically, to a host of other things that I have to do to manage my back.” (R. 48.) And on a “bad day, ” Saunders testified that he will not leave his apartment or his sofa. (R. 49.)

         Saunders further testified that he had more good days than bad. (R. 48.) Saunders stated that he did not do laundry, did not go to the grocery store, and did no more cooking than “crack[ing] an egg into a frying pain.” (R. 68.) Saunders also stated that “part of this is on me to stay in as good physical condition as I possibly can, given the limitations that are placed upon me.”^[3] (R. 52.)

         Toward the end of the hearing, the ALJ asked the vocational expert, among other things, whether an individual

of the same age, education, and past relevant work as [Saunders who] would be off task 15 percent of the day in addition to regular breaks, due to pain and side effects of medications and this individual would also have unscheduled absences two days or more per month. Would there be any work available in the national economy for this individual?

(R. 80-81.) The vocational expert answered no. (R. 81.)

         C. The ALJ's Written Decision Denying Saunders Benefits

         In the opinion below, the ALJ summarized Saunders's medical history before rendering a decision. The ALJ described that Saunders generally functions well, and that he can “perform numerous robust activities of daily living per hearing testimony, adult function reports, and the medical evidence of record.” (R. 25.)

         When evaluating Saunders's RFC, the ALJ acknowledged that during the hearing, Saunders “testified that he was unable to work due to the following impairments: degenerative discs, sacroiliac dysfunction, and migraine headaches as well as symptoms of sleep disturbance, memory problems, difficulties with focus and concentration, moodiness, and dislike of crowds.” (R. 20.) The ALJ acknowledged Saunders's “100 percent total and permanent service-connected disability by the Veterans Administration.”^[4] (Id.) The ALJ mentioned that Saunders experiences migraine headaches “three to four times a month and a headache at least one day per week.” (R. 20.) Also in the written opinion, the ALJ noted Saunders's “degenerative discs and sacroiliac dysfunction for which he gets injections, uses a chiropractic services [sic] and TENS unit, ^[5] and takes medications.” (R. 21.) While the ALJ summarized Saunders's back problems, she did not mention the overall frequency of the injections, chiropractic services, medications, nor discuss how often Saunders sought pain management for his back. (R. 21.) The ALJ further remarked on Saunders's progress notes, which among other things, revealed a “good prognosis . . . mild pain, mild left shoulder functional limitations, mild strength limitations, and [that] he should progress well with RTC and scapular strengthening, ” after he sustained a biceps tendon rupture in February 2016. (R. 22, 701.)

         The ALJ also reviewed Saunders's National Spine and Pain Centers records, observing that during the period at issue, Saunders “was provided epidural steroid injections, physical therapy, chiropractic treatment, massage, acupuncture, ” and medication. (R. 23.) The ALJ considered the opinions of two state agency medical consultants, which suggested that Saunders “had the residual functional capacity to perform work related activities at a light level of exertion, ” and found that the “evidence . . . depicts even greater limitations due to the claimant's musculoskeletal issues and migraines.” (R. 23.)

         Additionally, the ALJ recognized that the applicable regulations require the Social Security Administration to consider decisions from other agencies, such as the Veterans Administration Agency. (R. 24.) The ALJ remarked that, pursuant to Bird v. Commissioner of the Social Security Administration, the United States Court of Appeals for the Fourth Circuit “stated that such decisions deserve substantial weight unless there are good reasons for giving them less weight.”^[6] (R. 24.) The ALJ accorded “little weight” to the Veterans Administration decision rating Saunders one hundred percent disabled because the ALJ found that rating inconsistent with the record. (R. 24.)

         The ALJ summarized that “the evidence shows that [Saunders] has physical limitations in his ability to perform work-related activities, but that he remains able to work at a light level of exertion.” (R. 26.) To support this conclusion, the ALJ stated that she afforded “significant weight to the physical assessments” of one state agency medical consultant, and “partial weight” to the assessment by the other state agency medical consultant. (R. 26.) Additionally, the ALJ assigned “little weight” to the Veterans Administration disability decision and the opinion of Christine F. Lettieri, M.D., who provided multiple medical source statements for Saunders. (R. 23, 26.) The ALJ did not assign a weight to Saunders's testimony but found his statements “not entirely consistent with the medical evidence” in the record. (R. 24-25.) After the Appeals Council denied Saunders's administrative appeal, he sought review in this Court.

         D. Proceedings on Appeal in the District Court

         In his Motion for Summary Judgment, Saunders contended that the ALJ applied the wrong legal standard to evaluate the nature of his treatment and improperly characterized such treatment as “conservative” while overlooking his debilitating episodes of pain. (Pl's Mem. Supp. Mot. Summ. J. 9-12, ECF No. 10.) Saunders further argued that the ALJ erred because she did not “explain how his [robust] activities belie the frequency and duration of Saunders['s] episodes of exacerbated pain.” (Id. 13.) Finally, Saunders asserted that the ALJ employed the wrong standard under Fourth Circuit precedent set forth in Bird v. Commissioner of Social Security Administration to his Veterans Administration disability rating. (Id. 16.)

         In the R&R, the magistrate judge agreed that the ALJ applied the wrong standard pursuant to Bird but found the error harmless. (R&R 31-36.) The magistrate judge recommended that “no harm resulted from the ALJ's misstatement of [law] because, in accordance with Bird, the ALJ explained why the record demonstrated that the [Veterans Administration] rating deserved less-than-substantial weight.” (R&R 35.) The R&R noted that when discussing Bird, the ALJ opined that the Veterans Administration determination conflicted with Saunders's reported daily activities, which the ALJ characterized as “robust, ” implying that his daily activities outweighed any claim regarding Saunders's claims of acute pain episodes. (R&R 35.)

         As to Saunders's claim of error that his level of treatment does not speak to the frequency with which he experiences debilitating episodes of pain, the R&R found that “because the ALJ properly considered the consistency between [Saunders's] subjective complaints and his course of treatment, and because substantial evidence supports the ALJ's characterization of that treatment as conservative, the ALJ did not err.” (R&R 19.)

         Regarding Saunders's contention that the ALJ did not reconcile his ability to function throughout one month or a year without a debilitating pain episode, the R&R found that “the ALJ's detailed observations demonstrate that she considered both the type and the extent of [Saunders's] daily activities in accordance with the relevant regulations and caselaw.” (R&R 20.) The R&R further recommended that the ALJ “could reasonably conclude that [Saunders] did not suffer from the level of limitation that he endorsed.” (R&R 25-26.) The R&R found that “the ALJ's conclusion that [Saunders's] RFC adequately accounted for his limitations includes an implied finding that [Saunders] could work a full day despite any episodes of exacerbated pain.” (R&R 27 (emphasis added).) The R&R concluded that “[u]ltimately, because the ALJ considered the entire record and properly noted the inconsistencies between the record and [Saunders's] subjective complaints, including his alleged periods of exacerbated pain, the Court finds that the ALJ did not err in assessing [his] credibility.” (R&R 31.)

         In the Objection, Saunders asserts that the ALJ and the Magistrate Judge erred because they overlooked that Saunders “consistently experiences large blocks of time when he is in the throes of an exacerbation of his back pain, ” rendering him “not functional.” (Pl.'s Obj. 1, ECF No. 13.) Saunders contends that “[w]hat is completely missing from the ALJ's decision and the R&R's assessment is the recognition that all modalities of treatment proved to provide only temporary relief; i.e., that Saunders had to repeatedly return to those modalities over and over again.” (Id. 4.) Saunders points to “the Veteran's Administration determination that [he] is unable to work” and argues that the R&R did not fully acknowledge that the ALJ applied an incorrect standard of law resulting in more than harmless error. (Id. 6.) Saunders asks this Court to reverse the ALJ's decision because his “inability to work ...