Opinion
C. A. 9:22-cv-00274-DCC-MHC
01-26-2023
Curry Brockman, Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
MOLLY H. CHERRY, UNITED STATES MAGISTRATE JUDGE
Plaintiff Curry Brockman (Brockman) filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the Administrative Law Judge's (ALJ's) final decision denying his claim for disability insurance benefits (DIB) under the Social Security Act (Act). This case was referred to the undersigned for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.). For the following reasons, the undersigned recommends that the ALJ's decision be remanded for further administrative proceedings.
Citations to the record refer to the page numbers in the Social Security Administration Record. See ECF No. 10.
Brockman protectively filed an application for DIB on December 27, 2019, under Title II of the Act, alleging disability beginning May 6, 2019. R.pp. 17, 75, 86, 193-94. He alleged disability caused by diabetes, torn right shoulder, low back pain, left shoulder pain, right leg pain and weakness, migraine headaches, neck problems, hip problems, and right ear hearing loss. R.pp. 17, 75, 86, 193. The application was denied initially and on reconsideration. R.pp. 107-10, 112-17.
Brockman filed a request for an administrative hearing. R.p. 118. On July 27, 2021, a telephone hearing was held, at which Brockman, who was represented by counsel, and an impartial vocational expert testified. R.pp. 34-73. On August 19, 2021, an ALJ issued a decision finding Brockman not disabled within the meaning of the Act. R.pp. 14-33. The Appeals Council denied Brockman's request for review, making the ALJ's decision final. R.pp. 1-6. This appeal followed.
Because this Court writes primarily for the parties who are familiar with the facts, the Court dispenses with a lengthy recitation of the medical history from the relevant period. To the extent specific records or information are relevant to or at issue in this case, they are addressed within the Discussion section below.
II. APPLICABLE LAW
A. Scope of Review
Jurisdiction of this Court is pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Under § 405(g), judicial review of a final decision regarding disability benefits is limited to determining (1) whether the factual findings are supported by substantial evidence, and (2) whether the correct legal standards were applied. 42 U.S.C. § 405(g); Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002) (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)). Accordingly, a reviewing court must uphold the final decision when “an ALJ has applied correct legal standards and the ALJ's factual findings are supported by substantial evidence.” Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2017) (internal quotation marks omitted).
“Substantial evidence” is an evidentiary standard that is not high: it is “more than a mere scintilla” and means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). A reviewing court does not reweigh conflicts in evidence, make credibility determinations, or substitute its judgment for that of the ALJ. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ].” Id. (alteration in original) (internal quotation marks and citation omitted). However, this limited review does not mean the findings of an ALJ are to be mechanically accepted, as the “statutorily granted review contemplates more than an uncritical rubber stamping of the administrative action.” Howard v. Saul, 408 F.Supp.3d 721, 725-26 (D.S.C. 2019) (quoting Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969)).
B. Social Security Disability Evaluation Process
To be considered “disabled” within the meaning of the Social Security Act, a claimant must show that he has an impairment or combination of impairments which prevent him from engaging in all substantial gainful activity for which he is qualified by his age, education, experience, and functional capacity, and which has lasted or could reasonably be expected to last for a continuous period of not less than twelve months. See 42 U.S.C. § 423. The Social Security Administration established a five-step sequential procedure in order to evaluate whether an individual is disabled for purposes of receiving benefits. See 20 C.F.R. §§ 404.1520, 416.920; see also Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015) (outlining the questions asked in the five-step procedure). The burden rests with the claimant to make the necessary showings at each of the first four steps to prove disability. Mascio, 780 F.3d at 634-35. If the claimant fails to carry his burden, he is found not disabled. Lewis v. Berryhill, 858 F.3d 858, 861 (4th Cir. 2017). If the claimant is successful at each of the first four steps, the burden shifts to the Commissioner at step five. Id.
At the first step, the ALJ must determine whether the claimant has engaged in substantial gainful activity since his alleged disability onset date. 20 C.F.R. §§ 404.1520(b), 416.920(b). At step two, the ALJ determines whether the claimant has an impairment or combination of impairments that meet the regulations' severity and duration requirements. Id. §§ 404.1520(c), 416.920(c). At step three, the ALJ considers whether the severe impairment meets the criteria of an impairment listed in Appendix 1 of 20 C.F.R. part 404, subpart P (the “Listings”) or is equal to a listed impairment. If so, the claimant is automatically eligible for benefits; if not, before moving on to step four, the ALJ assesses the claimant's residual functional capacity (RFC). Id. §§ 404.1520(d), (e), 416.920(d), (e); Lewis, 858 F.3d at 861.
The RFC is “the most the claimant can still do despite physical and mental limitations that affect her ability to work.”Mascio, 780 F.3d at 635 (internal quotation marks and citations omitted).
At step four, the ALJ determines whether, despite the severe impairment, the claimant retains the RFC to perform his past relevant work. 20 C.F.R. §§ 404.1520(e), (f), 416.920(e), (f). If the ALJ finds the claimant capable of performing his past relevant work, he is not disabled. Id. §§ 404.1520(f), 416.920(f). If the exertion required to perform the claimant's past relevant work exceeds his RFC, then the ALJ goes on to the final step.
At step five, the burden of proof shifts to the Social Security Administration to show that the claimant can perform other jobs existing in significant numbers in the national economy, considering the claimant's age, education, work experience, and RFC. Id. §§ 404.1520(g), 416.920(g); Mascio, 780 F.3d at 634-35. Typically, the Commissioner offers this evidence through the testimony of a vocational expert answering hypotheticals that incorporate the claimant's limitations. Mascio, 780 F.3d at 635. “If the Commissioner meets her burden, the ALJ finds the claimant not disabled and denies the application for benefits.” Id.
III. ADMINISTRATIVE FINDINGS
The ALJ employed the statutorily-required five-step sequential evaluation process to determine whether Brockman was disabled from the alleged onset date of May 6, 2019. R.pp. 17-29. The ALJ found, in pertinent part:
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2024.
2. The claimant has not engaged in substantial gainful activity since May 6, 2019, the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: lumbar degenerative disc disease, right shoulder tendon tear, diabetes mellitus and obesity (20 CFR 404.1520(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 and 404.1526).
5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and can lift/carry 20 pounds occasionally and 10 pounds frequently. He can sit, stand and walk for six hours in an eight hour workday. He can frequently operate hand controls with the right hand. He can frequently reach overhead with the right upper extremity. The claimant can occasionally climb ramps and stairs. He can never climb ladders, ropes or scaffolds. He can frequently balance. He can occasionally stoop, kneel and crouch. He can never crawl. He can frequently work at unprotected heights and moving mechanical parts.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on December 30, 1968 and was 50 years old, which is defined as an individual closely approaching advanced age, on the alleged disability onset date (20 CFR 404.1563).
8. The claimant has at least a high school education (20 CFR 404.1564).
9. Transferability of job 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 and 404.1569(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from May 6, 2019, through the date of this decision (20 CFR 404.1520(g)).R.pp. 19-28.
IV. DISCUSSION
Brockman argues that remand is warranted because, among other things, the ALJ did not properly evaluate Brockman's subjective complaints of pain under SSR 16-3p. ECF No. 11 at 1018. Upon review, the Court is constrained to agree.
Social Security Rulings, or “SSRs,” are “interpretations by the Social Security Administration of the Social Security Act.” Pass v. Chater, 65 F.3d 1200, 1204 n.3 (4th Cir. 1995). They do not carry the force of law but are “binding on all components of the Social Security Administration,” 20 C.F.R. § 402.35(b)(1), as well as on ALJs when they are adjudicating Social Security cases. See Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1224 (9th Cir. 2009).
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 (S.S.A. Oct. 25, 2017). 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's decision “must contain specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms.” Id. at *10. In evaluating the intensity, persistence, and limiting effects of the claimant's symptoms (including pain), the ALJ should consider the following non-exhaustive list of relevant factors: (1) the claimant's daily activities; (2) the location, duration, frequency, and intensity of the claimant's symptoms; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medication taken to alleviate the symptoms; (5) treatment, other than medication, received to relieve the symptoms; and (6) any measures the claimant has used to relieve the symptoms. Id. at *7-8; 20 C.F.R. §§ 404.1529(c), 416.929(c).
A. The ALJ's consideration of Brockman's lower back impairment and subjective symptoms
Regarding his lower back, Brockman testified his pain feels like his bones are pushing together and that his pain is severe. R.p. 48. He testified the pain prevents him from walking long distances; that he must lay down during the day and elevate his feet; that his lower back pain travels down to his right foot; and that he does not wear shoes with laces because he finds it difficult to tie them with his back pain. R.pp. 48-49. He further testified that he can walk about ten minutes before he needs to rest for about three to four minutes; that he can walk maybe ten to twelve minutes in an hour; that he can stand in one spot for two to three minutes; and that he can sit for fifteen to twenty minutes. R.pp. 24-25, 48-51, 61. He testified that the medications he takes for pain do not help. R.pp. 48, 52. He also testified that he cannot do any heavy lifting, stating that he can maybe lift a twelve-pack of soda. R.p. 51.
After summarizing Brockman's testimony at the hearing, the ALJ found that Brockman's “medically determinable impairments could reasonably be expected to cause the alleged symptoms.” R.p. 25. However, the ALJ further found that Brockman's “statements concerning the intensity, persistence and limiting effects of these symptoms” were not entirely consistent with the medical evidence and other evidence in the record. R.p. 25.
The ALJ found the results of diagnostic tests were consistent with Brockman's allegations of back pain and radiculopathy. R.p. 25. However, the ALJ then stated that there “is no evidence his back impairment and attendant pain have prevented all engagement in [substantial gainful activity].” R.p. 25-26. The ALJ found:
While not dispositive on the issue of disability, it must be noted the claimant has not undergone surgical intervention to his back as he alleged, but rather is in a physical therapy regime, instead (11B).
There is no medical evidence that physicians or medical personnel consistently
noted in medical records that the claimant ambulated with a gait significantly affected by his back impairment. Further, there is no evidence of significant atrophy or muscle weakness in his lower extremities. Moreover, the medical record does not show a significant loss of sensation in the lower extremities. Furthermore, diagnostic testing does not show the presence of nerve root compression.
Mr. Brockman testified he experiences swelling in his legs that causes him to lie down during the day with his feet elevated. While this might in fact be the case, there is no medical evidence of widespread and persistent swelling in the claimant's lower extremities.
Based on the totality of the evidence of record relative to the claimant's back impairment, the RFC relegates him to light work with the postural limitations as included in the RFC.R.p. 26.
Upon review, the undersigned finds remand is warranted for three reasons. First, the ALJ did not adequately address Brockman's subjective complaints of pain. Second, the ALJ improperly increased the burden on Brockman by requiring objective indicia of his pain. Third, the ALJ's decision fails to show that he considered all the relevant medical evidence in the record to support his conclusions.
1. Failure to consider subjective complaints
The ALJ's first error involves the second step of SSR 16-3p's two-step process. As noted above, under SSR 16-3p, the ALJ must first determine if there is objective medical evidence of a condition that reasonably could produce the claimant's pain or other symptoms. SSR 16-3p, 2017 WL 5180304, at *3. If the ALJ finds this objective medical evidence is present, the ALJ must then evaluate the intensity, persistence, and limiting effects of the symptoms to determine the extent to which they limit the claimant's activities. Id. at *4; 20 C.F.R. § 404.1529.
Here, in assessing Brockman's pain, the ALJ was required to take into consideration evidence relevant to the severity of Brockman's pain, such as his daily activities; the location, duration, frequency, and intensity of the pain; precipitating and aggravating factors; the type and dose of medications required to alleviate the pain; any treatment, other than medication, received to relieve the symptoms; and any measures he has used to relieve the symptoms. See SSR 16-3p, 2017 WL 5180304, at *7-8; 20 C.F.R. §§ 404.1529(c), 416.929(c). The ALJ simply failed to do so here: nowhere does the ALJ address Brockman's testimony regarding his pain during the second step of the 16-3p analysis.
Rather, without any discussion of Brockman's pain, the ALJ concluded that limiting Brockman to light work with postural limitations accounted for his back impairments. This conclusion stands in stark contrast to Brockman's testimony and the medical records that reflect Brockman's consistent complaints of pain. See R.pp. 503, 512-13, 517, 525. Although the ALJ's limitation to light work arguably accounted for functional limitations stemming from Brockman's back impairment, a reading of the ALJ's decision fails to show that Brockman's testimony on the limiting effects caused by his pain were taken into consideration when evaluating his RFC. Without any discussion addressing Brockman's pain, review is frustrated. See, e.g., Lawton v. Kijakazi, No. CV 5:20-03931-KDW, 2022 WL 734090, at *10 (D.S.C. Mar. 11, 2022) (“[D]espite medical records reflecting Plaintiff's allegations of pain, as well as the evidence at the hearing testimony, the ALJ rather succinctly accounts for Plaintiff's subjective complaints by limiting him to sedentary work. The ALJ does not explain what clinical or objective findings of record are inconsistent with his allegations of pain. This, in turn, frustrates meaningful review.”); Brown v. Comm'r Soc. Sec. Admin., No. 8:21-CV-00432-JDA, 2022 WL 9979762, at *15 (D.S.C. Apr. 15, 2022) (“A reading of the ALJ's decision fails to show that any of these limitations due to pain, or medication side effects, were taken into consideration by the ALJ in evaluating Plaintiff's RFC. The ALJ was obligated to take into consideration evidence relevant to the severity of Plaintiff's impairment, including evidence such as hi[s] daily activities, specific descriptions of the pain, and any medical treatment taken to alleviate it.”).
2. Improper reliance on objective indicia
Brockman argues that the ALJ improperly looked for objective indicia of pain before crediting Brockman's allegations during the second step of SSR 16-3p's two-step process. In assessing the intensity, persistence, and limiting effects of the symptoms to determine the extent to which they limit a claimant's activities at the second stage of the pain assessment process, the ALJ may not require objective medical evidence to document the intensity of the claimant's pain. See Craig v. Chater, 76 F.3d 585, 594-95 (4th Cir. 1996) (“There is, of course, a fundamental difference between objective evidence of pain (which is not required) and objective evidence of a medical condition which could cause the pain alleged (which is). Requirement of the former is obviously not the law, for the simple reason that pain, a subjective phenomenon, although sometimes objectively verifiable, often will not be.”). To do so would improperly increase a claimant's burden under the regulatory scheme. See Lewis v. Berryhill, 858 F.3d 858, 866 (4th Cir. 2017) (“[W]e find the ALJ's determination that objective medical evidence was required to support Lewis' evidence of pain intensity improperly increased her burden of proof.”).
Here, without any discussion of Brockman's pain and its limiting effects, it is unclear on what basis the ALJ discounted Brockman's subjective complaints of pain. Indeed, after the ALJ found that Brockman's medically determinable impairments could reasonably be expected to cause his alleged symptoms, the ALJ appeared to discount Brockman's subjective symptoms based on a lack of objective medical evidence supporting them. See R.p. 26. That is, to Brockman's point, it appears the ALJ was looking for objective evidence that documented Brockman's subjective complaints. See, e.g., R.pp. 25-26 (indicating that “diagnostic test results evidence a severe back impairment” and that the “results of such testing certainly are consistent with the claimant's allegations of back pain and radiculopathy” but then finding “there is no evidence his back impairment and attendant pain have prevented all engagement in [substantial gainful activity]”). To the extent the ALJ did this, it was legal error. See Lewis, 858 F.3d at 866; Craig, 76 F.3d at 594-95; Brown v. Comm 'r Soc. Sec. Admin., No. 8:21-CV-00432-JDA, 2022 WL 9979762, at *13 (D.S.C. Apr. 15, 2022) (“[I]t appears that, once the ALJ found that Plaintiff's medically determinable impairments could reasonably be expected to cause the symptoms that he alleged, she then simply relied on the relative weakness of the objective evidence to find that Plaintiff was exaggerating his symptoms. This type of analysis constitutes reversible error.” (internal citation and footnote omitted)).
Of course, the undersigned does not suggest that the ALJ's consideration of objective medical evidence in evaluating the intensity and persistence of Brockman's pain was error. See Craig, 76 F.3d at 595 (“Although a claimant's allegations about her pain may not be discredited solely because they are not substantiated by objective evidence of the pain itself or its severity, they need not be accepted to the extent they are inconsistent with the available evidence, including objective evidence of the underlying impairment, and the extent to which that impairment can reasonably be expected to cause the pain the claimant alleges she suffers[.]” (emphasis added)). What is missing here, and what requires remand, is any explanation of how the referenced medical evidence was inconsistent or otherwise undercut Brockman's subjective complaints of disabling pain. See Hill v. Berryhill, No. 0:15-CV-05091-JMC, 2017 WL 2703971, at *6 (D.S.C. June 23, 2017) (“[I]f an ALJ relies on the results of objective medical examinations reported in a treatment note to find that the claimant's claims [of pain or other symptoms] are inconsistent with those results, the ALJ must explain how those results are inconsistent with the claims.” (emphasis in original)).
3. Failure to reconcile positive and negative findings
Brockman argues that the ALJ failed to reconcile positive and negative findings in the evidence and did not otherwise support his conclusions with substantial evidence. Upon review, the Court is constrained to agree.
The ALJ noted that the treatment records did not “consistently” note that Brockman ambulated with a gait significantly affected by his back impairment, and further found that there was no evidence of “significant atrophy or muscle weakness in his lower extremities,” of “significant loss of sensation in the lower extremities,” or of diagnostic testing showing the presence of nerve root compression. R.p. 26.
However, the record did show positive findings such as lumbar paraspinal tenderness and tenderness to palpation of Brockman's right lower leg. R.p. 513. Further, a March 2021 lumbar MRI showed multilevel degenerative spondylosis and facet arthropathy, congenitally short pedicles, discogenic disease and facet arthropathy resulting in significant central stenosis particularly prominent at L3-L4 and L4-L5 with associated central disc extrusion present at those levels, and right-sided neural foraminal narrowing was most notable at L5-S1 and L4-L5 related to endplate and facet osteophytes significant left neural foraminal narrowing most notably at L5-S1. R.pp. 519-20. Additionally, as noted above, Brockman's records showed consistent complaints of pain. R.pp. 503, 512-13, 517, 525. The ALJ cannot simply ignore evidence in the record and fail to reconcile it with his decision. See Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013) (“The record should include a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence.”). Failing to discuss this evidence in any meaningful way strikes the undersigned as impermissible cherry-picking. See Lewis, 858 F.3d at 869 (“An ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding.” (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010))).
Defendant Commissioner correctly notes that the ALJ acknowledged the existence of this evidence. ECF No. 12 at 12-13. However, this acknowledgement was done earlier at Step Two of the sequential evaluation process, and the ALJ only summarized the evidence. See R.p. 20. Nowhere did the ALJ consider this evidence when formulating the RFC. See R.pp. 24-27. There is a fundamental difference between recognizing the existence of medical evidence in the record and providing a meaningful discussion of how that evidence influenced the disability determination. See Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019) (“[O]ur precedent makes clear that meaningful review is frustrated when an ALJ goes straight from listing evidence to stating a conclusion.”); Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (noting an ALJ must “build an accurate and logical bridge” from the cited evidence to the ALJ's ultimate conclusion (quoting Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016))).
Additionally, as pointed out by Brockman, some the ALJ's conclusions are not supported by substantial evidence. For example, the ALJ noted “the claimant has not undergone surgical intervention to his back as he alleged, but rather is in a physical therapy regime, instead. (11B).” R.p. 26. However, Exhibit 11B, which the ALJ cited as support for this finding, is Brockman's Notice of Hearing reminder and gives no hint of support for this finding. See R.pp. 172-76. Indeed, the undersigned cannot find where in the record Brockman purportedly alleged that he underwent surgical intervention. To the contrary, at the hearing, Brockman testified that he had an orthopedic appointment set for the day after the hearing. R.pp. 52-53. Brockman's attorney provided post hearing correspondence indicating that Brockman had the appointment and was referred to physical therapy and conservative pain management before surgery would be considered. R.p. 307. As far at the record indicates, surgery has not been ruled out for Brockman. Although it was perhaps not the ALJ's intention, the implication that Brockman disingenuously alleged he underwent surgical intervention was not supported by substantial evidence.
On remand, the ALJ must reconcile the positive and negative findings in the evidence and support his conclusions with substantial evidence.
Although not argued by Brockman, the ALJ appeared to conflate his RFC analysis with the SSR 16-3p symptom evaluation. As noted above, the ALJ did not evaluate the intensity, persistence, and limiting effects of Brockman's symptoms under the second step of SSR 16-3p's two step process. Instead, the ALJ appeared to launch into an RFC assessment after acknowledging Brockman satisfied SSR 16-3p's first step. The Fourth Circuit recently noted an “RFC assessment is a separate and distinct inquiry from a symptom evaluation” under SSR 16-3p, and it held that treating these two assessments “as one and the same” is error. See Dowling v. Comm'r of Soc. Sec. Admin., 986 F.3d 377, 387 (4th Cir. 2021). That is, although analysis of a claimant's symptoms under SSR 16-3p “is relevant to the RFC evaluation,” it cannot be used as a substitute for the RFC assessment. See id. Because these are separate and distinct inquiries, it follows that the inverse is equally true: an ALJ may not use an RFC assessment as a substitute for a symptom evaluation under SSR 16-3p. See id. To the extent the ALJ inadvertently conflated his RFC analysis with the SSR 16-3p symptom evaluation or attempted to use his RFC assessment as a substitute for SSR 16-3p's symptom evaluation, it was error. See id.
B. Remaining allegations of error
Brockman also maintains the ALJ erred in a myriad of other ways, arguing that the ALJ's limitation in hand controls and overhead reaching did not reconcile the totality of Brockman's testimony; that the ALJ's RFC only addressed Brockman's alleged right upper extremity; that the ALJ improperly required objective evidence of pain caused by obesity; and that the ALJ failed to support his finding that Brockman's headaches occurred less frequently than he alleged. ECF No. 11 at 10-18.
Because the Court has determined that ALJ erred in assessing Brockman's subjective complaints of pain under SSR 16-3p, the Court declines to address these remaining claims of error. Upon remand however, the ALJ should take such claims of error into consideration. With respect to any remaining claims of error, the ALJ will be able to reconsider and re-evaluate the evidence in toto as part of the reconsideration. See Hancock v. Barnhart, 206 F.Supp.2d 757, 763 n.3 (W.D. Va. 2002) (noting the ALJ's prior decision has no preclusive effect, as it is vacated, and the new hearing is conducted de novo).
V. CONCLUSION
It is recommended that the decision of the Commissioner be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative review.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).