United States District Court, E.D. Virginia, Richmond Division
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 ...