Opinion
Civil Action 8:22-cv-03530-DCC-JDA
01-22-2024
Alice R.,[1] Plaintiff, v. Commissioner Social Security Administration, Defendant.
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Jacquelyn D. Austin United States Magistrate Judge
This matter is before the Court for a Report and Recommendation pursuant to Local Civil Rule 73.02(B)(2)(a), D.S.C., and 28 U.S.C. § 636(b)(1)(B). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of a final decision of the Commissioner of Social Security (“the Commissioner”), denying Plaintiff's claims for disability insurance benefits (“DIB”) and supplemental security income (“SSI”). For the reasons set forth below, the decision of the Commissioner is reversed and remanded for administrative action consistent with this Report and Recommendation, pursuant to sentence four of 42 U.S.C. § 405(g).
Section 1383(c)(3) provides, “The final determination of the Commissioner of Social Security after a hearing under paragraph (1) shall be subject to judicial review as provided in section 405(g) of this title to the same extent as the Commissioner's final determinations under section 405 of this title.” 42 U.S.C. § 1383(c)(3).
PROCEDURAL HISTORY
In April 2017, Plaintiff filed applications for DIB and SSI, alleging an onset of disability date of May 1,2015. [R. 254-71.] The claims were denied initially and on reconsideration by the Social Security Administration (“the Administration”). [R. 157-64, 173-80.] Plaintiff requested a hearing before an administrative law judge (“ALJ”) and on July 18, 2018, ALJ William F. Taylor conducted a de novo hearing on Plaintiff's claims. [R. 68-100.]
The ALJ issued a decision on October 18, 2018, finding Plaintiff not disabled under the Social Security Act (the “Act”). [R. 43-67.] Plaintiff requested Appeals Council review of the ALJ's decision and the Appeals Council declined review. [R. 1-7.] Plaintiff filed an action for judicial review on November 22, 2019 [R. 805-06 (Case No. 8:19-cv-3296-DCC-JDA)], and on September 15, 2020, the undersigned remanded the matter to the Commissioner for further consideration [R. 809-29]. On November 25, 2020, the Appeals Council directed the ALJ to offer Plaintiff another opportunity for hearing, to address additional evidence submitted, and to take further action needed to complete the administrative record and issue a new decision. [R. 834.]
On March 10, 2021, ALJ Ronald Fleming held a subsequent telephone hearing on Plaintiff's claims [R. 769-801]. The ALJ issued a partially favorable decision on March 31, 2021, finding Plaintiff disabled after July 18, 2018, but not disabled within the meaning of the Act at any time through her date last insured for purposes of DIB. [R. 739-68.] At Step 1, the ALJ found Plaintiff met the insured status requirements of the Act through September 30, 2017, and had not engaged in substantial gainful activity since her amended onset date of April 27, 2017. [R. 745, Findings 1 & 2; see also R. 911-12 (amending onset date).] At Step 2, the ALJ found that, since the amended alleged onset date, Plaintiff had the following severe impairments: osteoarthritis and degenerative joint disease of the bilateral feet, depression, anxiety, degenerative disc disease of the lumbar spine, diabetes mellitus, neuropathy, obesity, degenerative joint disease of the left wrist, and asthma. [R. 745, Finding 3.] The ALJ also found Plaintiff suffered non-severe impairments of hypertension, bursitis of the hips, obstructive sleep apnea, and history of gout. [R. 745.] At Step 3, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 746, Finding 4.]
The five-step sequential analysis used to evaluate disability claims is discussed in the Applicable Law section, infra.
Before addressing Step 4, Plaintiff's ability to perform her past relevant work, the ALJ found Plaintiff retained the following residual functional capacity (“RFC”):
After careful consideration of the entire record, the undersigned finds that since the amended alleged onset date, [Plaintiff] has the [RFC] to perform sedentary-exertion work, subject to additional limitations as follow. She can perform occasional climbing of ramps and stairs and no climbing of ladders[,] ropes or scaffolds. She can do occasional balancing and stooping, with no kneeling, crouching or crawling. She can do frequent handling with the left upper extremity. She must avoid concentrated exposure to fumes, odors, dust, gases and poor ventilation. She is further limited to occupations requiring no more than simple routine repetitive tasks, not performed in a fast-paced production environment, involving only simple work-related instructions and decisions and relatively few work place changes. She is further limited to occupations requiring no more than occasional interaction with co-workers and members of the general public. She will be able to maintain concentration persistence and pace for 2-hour increments (20 CFR 404.1567 and 416.967).[R. 747-48, Finding 5.] Based on this RFC finding, the ALJ determined at Step 4 that, since the amended alleged onset date, Plaintiff was unable to perform her past relevant work as a maintenance department manager and quality control inspector. [R. 756, Finding 6.] Considering Plaintiff's age, education, work experience, RFC, and the testimony of the vocational expert (“VE”), the ALJ determined that, prior to July 18, 2018, there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. [R. 756, Finding 10.] However, on July 18, 2018, the date Plaintiff's age category changed, considering Plaintiff's age, education, work experience, RFC, and the testimony of the vocational expert (“VE”), the ALJ determined that there were no jobs that exist in significant numbers in the national economy that Plaintiff could perform. [R. 758, Finding 11.] Thus, the ALJ found that Plaintiff was not disabled prior to July 18, 2018, but became disabled on that date and has continued to be disabled through the date of this decision. [R. 758, Finding 12.] Additionally, the ALJ determined that Plaintiff was not disabled within the meaning of the Act at any time through September 30, 2017, the date last insured. [R. 758, Finding 13.]
Plaintiff requested Appeals Council review of the ALJ's decision and the Appeals Council declined review. [R. 720-26.] Plaintiff filed the instant action for judicial review on October 12, 2022. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff contends the ALJ's decision is not supported by substantial evidence and contains legal errors warranting the reversal and remand of the case. [Doc. 15.] Specifically, Plaintiff contends the ALJ committed reversible error by failing to explain his RFC findings [id. at 17-23]; failing to properly assess medical source opinion evidence . [id at 23-29]; and failing to properly evaluate Plaintiff's subjective symptomology [ id. at 29-31].
The Commissioner contends the ALJ's decision should be affirmed because substantial evidence supports a finding that Plaintiff was not disabled within the meaning of the Act. [Doc. 19.] Specifically, the Commissioner contends substantial evidence supports the ALJ's RFC analysis [id. at 11-16]; the evaluation of Dr. Boyles' opinions [id. at 16-20]; and the evaluation of Plaintiff's subjective claims of disabling symptoms [id. at 20-23].
STANDARD OF REVIEW
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla-i.e., the evidence must do more than merely create a suspicion of the existence of a fact and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966).
Where conflicting evidence “allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ),” not on the reviewing court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991) (stating that where the Commissioner's decision is supported by substantial evidence, the court will affirm, even if the reviewer would have reached a contrary result as finder of fact and even if the reviewer finds that the evidence preponderates against the Commissioner's decision). Thus, it is not within the province of a reviewing court to determine the weight of the evidence, nor is it the court's function to substitute its judgment for that of the Commissioner so long as the decision is supported by substantial evidence. See Bird v. Comm'r, 699 F.3d 337, 340 (4th Cir. 2012); Laws, 368 F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).
The reviewing court will reverse the Commissioner's decision on plenary review, however, if the decision applies incorrect law or fails to provide the court with sufficient reasoning to determine that the Commissioner properly applied the law. Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980); see also Keeton v. Dep't of Health & Hum. Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner's decision “is in clear disregard of the overwhelming weight of the evidence, Congress has empowered the courts to modify or reverse the [Commissioner's] decision ‘with or without remanding the cause for a rehearing.'” Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971) (quoting 42 U.S.C. § 405(g)). Remand is unnecessary where “the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no purpose.” Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974).
The court may remand a case to the Commissioner for a rehearing under sentence four or sentence six of 42 U.S.C. § 405(g). See Shalala v. Schafer, 509 U.S. 292, 296 (1993). To remand under sentence four, the reviewing court must find either that the Commissioner's decision is not supported by substantial evidence or that the Commissioner incorrectly applied the law relevant to the disability claim. See, e.g., Jackson v. Chater, 99 F.3d 1086, 1090-91 (11th Cir. 1996) (holding remand was appropriate where the ALJ failed to develop a full and fair record of the claimant's RFC); Brenem v. Harris, 621 F.2d 688, 690-91 (5th Cir. 1980) (holding remand was appropriate where record was insufficient to affirm but was also insufficient for court to find the claimant disabled). Where the court cannot discern the basis for the Commissioner's decision, a remand under sentence four is usually the proper course to allow the Commissioner to explain the basis for the decision or for additional investigation. See Radford v. Comm'r, 734 F.3d 288, 295 (4th Cir. 2013);see also Smith v. Heckler, 782 F.2d 1176, 1181-82 (4th Cir. 1986) (remanding case where decision of ALJ contained “a gap in its reasoning” because ALJ did not say he was discounting testimony or why); Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (remanding case where neither the ALJ nor the Appeals Council indicated the weight given to relevant evidence). On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. See Smith, 782 F.2d at 1182 (“The [Commissioner] and the claimant may produce further evidence on remand.”). After a remand under sentence four, the court enters a final and immediately appealable judgment and then loses jurisdiction. Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991).
In contrast, sentence six provides:
The court may . . . at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding ....42 U.S.C. § 405(g). A reviewing court may remand a case to the Commissioner on the basis of new evidence only if four prerequisites are met: (1) the evidence is relevant to the determination of disability at the time the application was first filed; (2) the evidence is material to the extent that the Commissioner's decision might reasonably have been different had the new evidence been before him; (3) there is good cause for the claimant's failure to submit the evidence when the claim was before the Commissioner; and (4) the claimant made at least a general showing of the nature of the new evidence to the reviewing court. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985), superseded by amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec'y, Dep't of Health & Hum. Servs., 925 F.2d 769, 774 (4th Cir. 1991). With remand under sentence six, the parties must return to the court after remand to file modified findings of fact. Melkonyan, 501 U.S. at 98. The reviewing court retains jurisdiction pending remand and does not enter a final judgment until after the completion of remand proceedings. See Allen v. Chater, 67 F.3d 293 (4th Cir. 1995) (unpublished table decision) (holding that an order remanding a claim for Social Security benefits pursuant to sentence six of 42 U.S.C. § 405(g) is not a final order).
Though the court in Wilkins indicated in a parenthetical that the four-part test set forth in Borders had been superseded by an amendment to 42 U.S.C. § 405(g), courts in the Fourth Circuit have continued to cite the requirements outlined in Borders when evaluating a claim for remand based on new evidence. See, e.g., Brooks v. Astrue, No. 6:10-cv-152, 2010 WL 5478648, at *8 (D.S.C. Nov. 23, 2010); Ashton v. Astrue, No. TMD 09-1107, 2010 WL 3199345, at *3 (D. Md. Aug. 12, 2010); Washington v. Comm'r of Soc. Sec., No. 2:08-cv-93, 2009 WL 86737, at *5 (E.D. Va. Jan. 13, 2009); Brock v. Sec'y of Health & Hum. Servs., 807 F.Supp. 1248, 1250 n.3 (S.D. W.Va. 1992). Further, the Supreme Court of the United States has not suggested Borders' construction of § 405(g) is incorrect. See Sullivan v. Finkelstein, 496 U.S. 617, 626 n.6 (1990). Accordingly, the Court will apply the more stringent Borders inquiry.
APPLICABLE LAW
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. 42 U.S.C. § 423(a). “Disability” is defined as:
the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 consecutive months.Id. § 423(d)(1)(A).
I. The Five-Step Evaluation
To facilitate uniform and efficient processing of disability claims, federal regulations 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) (noting a “need for efficiency” in considering disability claims). The ALJ must consider whether (1) the claimant is engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the impairment meets or equals an impairment included in the Administration's Official Listings of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents the claimant from performing past relevant work; and (5) the impairment prevents the claimant from having substantial gainful employment. 20 C.F.R. §§ 404.1520, 416.920. Through the fourth step, the burden of production and proof is on the claimant. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). The claimant must prove disability on or before the last day of her insured status to receive disability benefits. Everett v. Sec'y of Health, Educ. & Welfare, 412 F.2d 842, 843 (4th Cir. 1969). If the inquiry reaches Step 5, the burden shifts to the Commissioner to produce evidence that other jobs exist in the national economy that the claimant can perform, considering the claimant's age, education, and work experience. Grant, 699 F.2d at 191. If at any step of the evaluation the ALJ can find an individual is disabled or not disabled, further inquiry is unnecessary. 20 C.F.R. §§ 404.1520(a), 416.920(a)(4); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
A. Substantial Gainful Activity
“Substantial gainful activity” must be both substantial-involves doing significant physical or mental activities, 20 C.F.R. §§ 404.1572(a), 416.972(a)-and gainful-done for pay or profit, whether or not a profit is realized, Id. §§ 404.1572(b), 416.972(b). If an individual has earnings from employment or self-employment above a specific level set out in the regulations, he is generally presumed to be able to engage in substantial gainful activity. Id. §§ 404.1574-.1575, 416.974-.975.
B. Severe Impairment
An impairment is “severe” if it significantly limits an individual's ability to perform basic work activities. See id. §§ 404.1522, 416.922. When determining whether a claimant's physical and mental impairments are sufficiently severe, the ALJ must consider the combined effect of all of the claimant's impairments. 42 U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G). The ALJ must evaluate a disability claimant as a whole person and not in the abstract, having several hypothetical and isolated illnesses. Walker v. Bowen, 889 F.2d 47, 49-50 (4th Cir. 1989) (stating that, when evaluating the effect of a number of impairments on a disability claimant, “the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them”). Accordingly, the ALJ must make specific and well-articulated findings as to the effect of a combination of impairments when determining whether an individual is disabled. Id. at 50 (“As a corollary to this rule, the ALJ must adequately explain his or her evaluation of the combined effects of the impairments.”). If the ALJ finds a combination of impairments to be severe, “the combined impact of the impairments shall be considered throughout the disability determination process.” 42 U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G).
C. Meets or Equals an Impairment Listed in the Listings of Impairments
If a claimant's impairment or combination of impairments meets or medically equals the criteria of a listing found at 20 C.F.R. Pt. 404, Subpt. P, App.1 and meets the duration requirement found at 20 C.F.R. §§ 404.1509 or 416.909, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience. 20
The Listing of Impairments is applicable to SSI claims pursuant to 20 C.F.R. §§ 416.911, 416.925.
C.F.R. §§ 404.1520(d), 416.920(d).
D. Past Relevant Work
The assessment of a claimant's ability to perform past relevant work “reflect[s] the statute's focus on the functional capacity retained by the claimant.” Pass v. Chater, 65 F.3d 1200, 1204 (4th Cir. 1995). At this step of the evaluation, the ALJ compares the claimant's RFC with the physical and mental demands of the kind of work he has done in the past to determine whether the claimant has the RFC to do her past work. 20 C.F.R. §§ 404.1560(b), 416.960(b).
RFC is “the most [a claimant] can still do despite [her] limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).
E. Other Work
As previously stated, once the ALJ finds that a claimant cannot return to her prior work, the burden of proof shifts to the Commissioner to establish that the claimant could perform other work that exists in the national economy. See 20 C.F.R. §§ 404.1520(f)-(g), 416.920(f)-(g); Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992). To meet this burden, the Commissioner may sometimes rely exclusively on the Medical-Vocational Guidelines (the “grids”). Exclusive reliance on the “grids” is appropriate where the claimant suffers primarily from an exertional impairment, without significant nonexertional factors. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e); Gory v. Schweiker, 712 F.2d 929, 930-31 (4th Cir. 1983) (stating that exclusive reliance on the grids is appropriate in cases involving exertional limitations). When a claimant suffers from both exertional and nonexertional limitations, the grids may serve only as guidelines. Gory, 712 F.2d at 931. In such a case, the Commissioner must use a VE to establish the claimant's ability to perform other work. 20 C.F.R. §§ 404.1569a, 416.969a; see Walker, 889 F.2d at 49-50 (“Because we have found that the grids cannot be relied upon to show conclusively that claimant is not disabled, when the case is remanded it will be incumbent upon the [Commissioner] to prove by expert vocational testimony that despite the combination of exertional and nonexertional impairments, the claimant retains the ability to perform specific jobs which exist in the national economy.”). The purpose of using a vocational expert is “to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform.” Walker, 889 F.2d at 50. For the vocational expert's testimony to be relevant, “it must be based upon a consideration of all other evidence in the record, . . . and it must be in response to proper hypothetical questions which fairly set out all of claimant's impairments.” Id. (citations omitted).
An exertional limitation is one that affects the claimant's ability to meet the strength requirements of jobs. 20 C.F.R. §§ 404.1569a(a), 416.969a(a). A nonexertional limitation is one that affects the ability to meet the demands of the job other than the strength demands. Id. Examples of nonexertional limitations include but are not limited to difficulty functioning because of being nervous, anxious, or depressed; difficulty maintaining attention or concentrating; difficulty understanding or remembering detailed instructions; difficulty seeing or hearing. 20 C.F.R. §§ 404.1569a(c)(1), 416.969a(c)(1).
II. Developing the Record
The ALJ has a duty to fully and fairly develop the record. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). The ALJ is required to inquire fully into each relevant issue. Snyder, 307 F.2d at 520. The performance of this duty is particularly important when a claimant appears without counsel. Marsh v. Harris, 632 F.2d 296, 299 (4th Cir. 1980). In such circumstances, “the ALJ should scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts, . . . being especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited.” Id. (internal quotations and citations omitted).
III. Medical Opinions
For claims filed on or after March 27, 2017, as Plaintiff's are, the applicable regulations require ALJs to consider the persuasiveness of each medical opinion of record in accordance with the following factors: (1) supportability; (2) consistency; (3) relationship with the claimant; (4) specialization; and (5) other factors that tend to support or contradict the opinion. 20 C.F.R. §§ 404.1520c(b), (c), 416.920c(b), (c). Regarding supportability, “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion . . . the more persuasive the medical opinion will be.” 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1). As for the relationship with the claimant, ALJs consider the “length of the treatment relationship,” the “[f]requency of examinations,” the “[p]urpose of the treatment relationship,” the “[e]xtent of the treatment relationship,” and whether the source has examined the claimant. 20 C.F.R. §§ 404.1520c(c)(3), 416.920c(c)(3).
The new regulations define the term “medical opinion” as “a statement from a medical source about what you can still do despite your impairment(s) and whether you have one or more impairment-related limitations or restrictions.” 20 C.F.R. § 404.1513(a)(2), 416.913(a)(2).
IV. Medical Tests and Examinations
The ALJ is required to order additional medical tests and exams only when a claimant's medical sources do not give sufficient medical evidence about an impairment to determine whether the claimant is disabled. 20 C.F.R. §§ 404.1517, 416.917; see also Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986). The regulations are clear: a consultative examination is not required when there is sufficient medical evidence to make a determination on a claimant's disability. 20 C.F.R. §§ 404.1517, 416.917. Under the regulations, however, the ALJ may determine that a consultative examination or other medical tests are necessary. Id.
V. Pain
Congress has determined that a claimant will not be considered disabled unless he furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing the existence of a medical impairment that could reasonably be expected to produce the pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). Social Security Ruling (“SSR”) 16-3p provides, “[i]n considering the intensity, persistence, and limiting effects of an individual's symptoms, we 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.” Social Security Ruling 16-3p Titles II and XVI: Evaluation of Symptoms In Disability Claims, 82 Fed.Reg. 49,462, 49,464 (Oct. 25, 2017); see also 20 C.F.R. §§ 404.1529(c)(1)-(2), 416.929(c)(1)-(2) (outlining evaluation of pain).
In evaluating claims of disabling pain, the ALJ must proceed in a two-part analysis. Morgan v. Barnhart, 142 Fed.Appx. 716, 723 (4th Cir. 2005) (unpublished opinion); see also SSR 16-3p, 82 Fed.Reg. at 49,463. First, “the ALJ must determine whether the claimant has produced medical evidence of a ‘medically determinable impairment which could reasonably be expected to produce” the alleged symptoms. Id. (quoting Craig, 76 F.3d at 594); see SSR 16-3p, 82 Fed.Reg. at 49,463. Second, 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 . . . or to function independently.” SSR 16-3p, 82 Fed.Reg. at 49,464; see 20 C.F.R. §§ 404.1529, 416.929 (noting that the ALJ must consider all of a claimant's statements about her symptoms, including pain, and determine the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence).
APPLICATION AND ANALYSIS
Subjective Symptomology
Plaintiff contends the ALJ discounted her claims of disabling foot and lower extremity pain without explaining how he decided which of her statements to believe and which to discredit. [Doc. 15 at 30.] Plaintiff contends she is entitled to have the ALJ consider all of her “symptoms, including pain, and the extent to which [her] symptoms can reasonably be accepted as consistent with the objective medial evidence and other evidence.” [Id. (internal quotation marks omitted).]
Plaintiff's Testimony
In her first hearing before an ALJ, Plaintiff testified that she had to leave her job at Wal-mart because she was unable to bear weight on her feet. [R. 79.] In addition to the pain in her feet, she experienced pain and swelling in her ankles. [R. 80.] Plaintiff testified to using a stick when trying to walk more than a short distance. [Id.] She indicated that Gabapentin controls her pain, but she has to take it three times in a day so that she can walk for at least five minutes before needing to take a break. [R. 80-81.] Plaintiff testified that it is difficult for her to wear shoes due to swelling and that she generally wears post-op shoes that slide onto her feet and are secured with velcro. [R. 81.] Plaintiff indicted that, in a typical day, she either reclines or lies down with her feet elevated to relieve the swelling for about five minutes every hour, as instructed by the doctor. [R. 81-82.] Plaintiff also testified that her back pain is “so painful” and is aggravated when she tries to do things like mop or bend a lot. [R. 82.]
Plaintiff testified she can sit with her feet on the floor or stand for about five minutes before she begins to experience nerve pain in her feet. [R. 82-83.] Because of issues with her back and hands, Plaintiff testified she can lift and carry about five pounds as she tends to start dropping things and putting pressure on her hands tends to aggravate the nerve pain in her hands. [R. 83.] Plaintiff testified that her nerve pain began a year prior and that she was supposed to see a rheumatolgist, but she lost her insurance in February 2017 and cannot afford to see a specialist. [R. 84.] Additionally, her medications make her drowsy. [R. 88.] She does housework with the assistance of her husband and she uses an electric cart when she shops. [R. 90-91.]
In her second hearing before an ALJ, Plaintiff testified to continued problems with nerve pain and swelling in her feet which she would rate at ¶ 5 out of 10 most of the time. [R. 779.] She testified to taking Gabapentin (non-narcotic) and Hydrocodone (narcotic) for her pain. [R. 779-80.] She testified to having problems with low back pain after standing for long periods of time. [R. 781.] On a scale from 1 to 10, she rates her back pain an 8. [R. 781-82.] No surgeon has recommended surgery, but she also does not have insurance, so she tries doing her own exercises. [R. 782.] Plaintiff testified that Gabapentin helps with her neuropathy and Hydrocodone helps with her wrist and back pain. [R. 783-84.]
Plaintiff testified to being able to sit for about 15 minutes, stand for about 18 minutes before needing to sit down, and walk for 15 minutes before needing to rest. [R. 784-85.] She stated she could lift or carry five pounds and has difficulty bending, kneeling, squatting, and crawling. [R. 785.] She can wash dishes, sweep, do laundry, and grocery shop but only with the help of her husband or brother. [R. 785-86.] Plaintiff also testified to using a walking stick since 2018 for support and balance issues due to her knee feeling like it will give out. [R. 788.] She does not receive physical therapy due to financial reasons and not having insurance coverage. [R. 789.] She also testified to needing to lie down or elevate her legs due to swelling in her feet and ankles about four times a day. [R. 790.] She also has to recline or lie down to help with back pain. [Id.] With respect to her feet, she is unable to see a podiatrist due to her lack of insurance. [R. 792.] Plaintiff testified that the main reason she is unable to work is the pain in her back and feet. [R. 792-93.] She also experiences pain in her hands due to tendinitis. [R. 793.]
The ALJ's Consideration of Medical Evidence and Testimony about Foot Pain
The ALJ noted that, after careful consideration of the evidence, he found Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms but that, prior to her onset date, her statements concerning the intensity, persistence and limiting effects of these symptoms are not fully supported by the objective medical evidence and other evidence of record. [R. 752.] The ALJ explained the medical evidence related to Plaintiff's back and feet impairments as follows:
[Plaintiff's] left foot was put in a cast in October 2016 (Exhibit 3F p. 4). The cast was removed by her podiatrist in November 2016. She was instructed to ambulate in in special shoes with a metatarsal pad (Exhibit 3F p. 34). [Plaintiff's] podiatrist subsequently initiated a course of multiple alcohol-sclerosing injections. [Plaintiff] was held out of work during the course of injections (Exhibit 3F pp. 23 and 31). As of January 24, 2017, her podiatrist noted that she was not experiencing pain except with the first step out of bed in the mornings. Additional injections were deferred at that time (Exhibit 3F pp. 17-18). On February 9, 2017, [Plaintiff] was referred to neurology for a neuropathy work-up. Her primary care provider had prescribed Gabapentin for burning/tingling in both feet, legs, and hands. She had not started taking that medication yet (Exhibit 3F pp. 14-15).
[Plaintiff] had a neurology visit on March 30, 2017. She complained of continuing pain in her feet, with inability to bear weight in street shoes. She endorsed swelling and redness of the feet. However, on physical examination, she ambulated independently. No erythema, joint deformity, or edema was noted. She had 5/5 strength to her upper and lower extremities. Her provider noted that she had foot pain of unclear etiology, with normal EMG results concerning her lower extremities. She was referred to rheumatology to evaluate for autoimmune disorder. She had repeatedly elevated ESR levels (Exhibit 3F pp. 2-4 and 7).
[Plaintiff] had a family medicine visit on April 12, 2017. She presented with foot pain, myalgia, hypertension, obesity, and anxiety. Her anxiety and hypertension were chronic and stable, as were the myalgias in her legs. She had prescriptions for Gabapentin, Citalopram, Hydrocodone, and Lisinopril, as well as a ProAir inhaler (Exhibit 7F p. 75). Earlier family medicine records show her presenting with similar complaints and problems (e.g., Exhibit 7F pp. 6, 25, 43, and 57).
On April 20, 2017, [Plaintiff's] family medicine physician noted she had ongoing foot pain bilaterally. That complaint restricted her weight-bearing activity and moderately limited her activities. She was prescribed an increased dosage of Gabapentin, at 400-mg. TID, and was supplied with a handicap placard (Exhibit 7F pp. 79-80 and 84). On June 20, 2017, [Plaintiff] was prescribed Metformin 500-mg. for a new diagnosis of type 2 diabetes (Exhibit 7F p. 88). On July 20, 2017, she was supplied with a glucometer for monitoring her diabetes, along with a refill of Citalopram/Celexa (Exhibit 7F p. 100). ...
[Plaintiff] returned to her family medicine clinic on September 6, 2017, to follow up for diabetes, hypertension, anxiety, and foot pain. Her foot pain was located in both feet. It was described as chronic and intermittent, occurring daily, and mild in nature. She was kept on her prescription for Gabapentin 400-mg. TID. She was also given a referral to orthopedics. She had a body mass index or BMI of 37.5, consistent with obesity. Her provider recommended light exercise and monitoring sugars and sweets in her diet (Exhibit 7F pp. 107-108).
On May 17, 2018, [Plaintiff's] therapist noted some increased ability to stand up for herself when dealing with her family. However, [Plaintiff] continued to suffer severe pain in her feet and back, and could only walk short distances and stand short periods of time (Exhibit 16F p. 2). On June 6, 2018, [Plaintiff] saw her family medicine provider with right shoulder pain. She had tenderness at the subacromial space on examination. She was prescribed Gabapentin 800-mg. TID, along with Duloxetine at her existing dosage of 60-mg. (Exhibit 17F pp. 2-3). On August 29, 2018, [Plaintiff] presented to her family medicine clinic for follow-up care. She had foot pain and back pain, as well as complaints of edema. On examination, she showed 1/4 edema to the bilateral lower extremities (Exhibit 23F pp. 14-15).[R. 750-52.]
After considering the medical evidence of record, the ALJ found that Plaintiff was still capable of performing a reduced range of sedentary exertion work before July 18, 2018. [R. 752.] The ALJ explained as follows:
As discussed above, [Plaintiff's] left foot was placed in a cast for a relatively short period in late 2016. After removal of the cast, she was given several injections to her left foot by her podiatrist. As of January 2017, she was only having foot pain when getting out of bed in the morning (Exhibit 3F p. 18). A neurologist evaluated her for neuropathy in March 2017. At that time, her EMG/NCS results did not show evidence of peripheral neuropathy. She exhibited normal sensation and motor function in her lower extremities on physical examination, as well as normal gait. She had some problems with walking on tiptoe (Exhibit 3F pp. 3-4, 6-7, and 12).
[Plaintiff's] family medicine records show continuing complaints of foot pain over the course of 2017-2018. However, there was little objective clinical evidence that [Plaintiff's] gait was seriously affected. For instance, she was not observed to have a limp or antalgic gait or to use a cane. She also did not exhibit swelling in her feet with any frequency during that time (see Exhibit 7F pp. 79-80, 87-88, 99-100, and 107-108; Exhibit 17F pp. 2-3, 8-9, 14-15, 20-21, and 26-27; and Exhibit 23F pp.
14-15). Moreover, the severity of [Plaintiff's] foot pain was typically described as mild or moderate (Exhibit 7F pp. 99 and 107; Exhibit 17F p. 26). Based on this evidence, the undersigned is not convinced that [Plaintiff's] symptoms in her feet would have prevented her from performing sedentary-exertion work activity. ....
Based on this evidence, the undersigned finds that [Plaintiff] could still perform a reduced range of sedentary work before July 18, 2018. She required postural limitations on the basis of obesity and back pain. Thus, she was restricted to no more than occasional climbing of ramps and stairs; no climbing of ladders[,] ropes or scaffolds; only occasional balancing and stooping; and no kneeling, crouching or crawling. She remained capable of frequent handling with the left upper extremity, as there was no evidence of significant left wrist problems before the established onset date. Because of asthma, she needed to avoid concentrated exposure to fumes, odors, dust, gases and poor ventilation.[R. 752-53.]
In further assessing Plaintiff's complaints of pain in her feet, the ALJ noted, “In June 2017, Dr. Boyles stated that [Plaintiff] was limited to walking 80 yards and standing less than 5 minutes. She was able to perform activities of daily living, but only slowly (Exhibit 12F). Dr. Boyles supported that opinion by noting [Plaintiff's] bilateral foot pain, myalgias, and low back pain. However, again, this opinion is not fully consistent with the evidence concerning [Plaintiff's] gait or the clinical evidence concerning her feet.” [R. 754.]
Discussion
It is noted that the Fourth Circuit has held that “an ALJ has the obligation to consider all relevant medical evidence and cannot simply cherry-pick facts that support a finding of nondisability while ignoring evidence that points to a disability finding.” Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 98 (4th Cir. 2020) (internal citations omitted). Additionally, “the long-standing law in our circuit [is] that disability claimants are entitled to rely exclusively on subjective evidence to prove the severity, persistence, and limiting effects of their symptoms.” Id.
In this case, the ALJ declined to give consideration to Plaintiff's complaints about her ability to stand and walk because the evidence of record “provide[d] little objective clinical evidence that [Plaintiff's] gait was seriously affected” [R. 754], but the ALJ provided no discussion that the undersigned can discern to build a logical bridge from the evidence to this conclusion with respect to limitations in Plaintiff's ability to stand and walk. This type of analysis constitutes reversible error. See Lewis, 858 F.3d at 866; Rogers v. Berryhill, No. 8:18-cv-01931-BHH-JDA, 2019 WL 2894950, at *12 (D.S.C. June 18, 2019), Report and Recommendation adopted by 2019 WL 2743894 (July 1, 2019).
When determining a claimant's RFC, an ALJ must consider a claimant's subjective symptoms, including pain. 20 C.F.R. §§ 404.1529(a), 416.929(a); S.S.R. 16-3p, 2016 WL 1119029 (Mar. 16, 2016) (effective Mar. 28, 2016). The determination of whether a person is disabled by pain or other symptoms is a two-step process. First, the ALJ must determine whether objective medical evidence shows the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities and which could reasonably be expected to produce the pain or other symptoms alleged. Craig, 76 F.3d at 593, 595. If such 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. 20 C.F.R. §§ 404.1529, 416.929. In making this determination 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 as this would improperly increase his burden under the regulatory scheme. Lewis, 858 F.3d at 866; see Arakas, 983 F.3d at 95 (explaining that at the second stage of the process “”objective evidence is not required to find the claimant disabled”). The regulations require the ALJ, in assessing a claimant's pain complaints, to consider such factors as the claimant's daily activities; the location, duration, frequency, and intensity of the pain; precipitating and aggravating factors; and the type and dose of medications required to alleviate the pain. 20 C.F.R. §§ 404.1529(c)(3)(i)-(iv), 416.929(c)(3)(i)-(iv). Regarding these determinations, 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.” SSR 16-3p, 82 Fed.Reg. at 49,467.
It is unclear from a reading of the ALJ's decision whether he considered the non-objective evidence or factors outlined above in addressing Plaintiff's RFC. The ALJ noted Plaintiff's complaints of pain in her testimony and to her treating physicians but failed to specifically address either Plaintiff's daily activities, the location, duration, frequency, intensity of symptoms, or precipitating and aggravating factors. While the ALJ acknowledged that Plaintiff “was able to perform activities of daily living, but only slowly” [R. 754], he did not acknowledge the limited extent of those activities as described by Plaintiff or her need for help from her brother or husband to complete these activities, and the ALJ failed to explain how Plaintiff's limited activities showed she could sustain a fulltime job. The ALJ's effort was “‘insufficient,' because [Plaintiff] testified to only ‘minimal daily activities' that neither established that [s]he was ‘capable of engaging in substantial physical activity' nor ‘contradict[ed] [her] claim of disabling pain.'” Brown v. Commissioner, 873 F.3d 251 (4th Cir. 2017). Curiously, the ALJ's explanation regarding the support for his RFC indicates that the required postural limitations stated were based on her obesity and back pain. [R. 753.] Further, the ALJ notes that he imposed certain “mental limitations [to] accommodate [Plaintiff's] problems with physical pain and any side effects caused by the use of pain medications.” [R. 753-54.] There is no discussion as to what, if any, limitations might be associated with her well documented foot pain and limitations in her ability to stand and walk for long periods of time due to that pain. At a minimum, the ALJ should have explained his consideration of Plaintiff's subjective complaints regarding the effects of pain on her ability to persist during the day without the need to lie down or elevate her feet due to pain and swelling.
The ALJ's failure to provide a sufficient explanation regarding Plaintiff's ability to maintain sedentary work for 8 hours a day during the relevant time period prior to July 18, 2018, despite her subjective complaints, deprives the Court of its ability to conduct meaningful review. The Court therefore recommends that the decision of the Commissioner be reversed and the case remanded for further administrative action consistent with this Report and Recommendation. On remand, in assessing Plaintiff's pain complaints and her description of the limitations the pain caused her, the ALJ should consider the factors identified in 20 C.F.R. §§ 404.1529(c)(3) and 416.929(c)(3) and provide specific reasons for the weight given to the individual's symptoms.
The ALJ also applied an incorrect legal standard when he required objective evidence of pain. Essentially, the ALJ required objective evidence that Plaintiff's pain was so intense as to prevent her from working an eight-hour day. This was in error. The Fourth Circuit has held that “pain itself can be disabling, and it is incumbent upon the ALJ to evaluate the effect of pain on a claimant's ability to function. Further, while there must be objective medical evidence of some condition that could reasonably produce the pain, there need not be objective evidence of the pain itself or its intensity.” Walker v. Bowen, 889 F.2d 47, 49 (4th Cir. 1989). The ALJ must consider the entire case record and may “not disregard an individual's statements about the intensity, persistence, and limiting effects of symptoms solely because the objective medical evidence does not substantiate” them. SSR 16-3p, 82 Fed.Reg. at 49, 465; see also Arakas, 983 F.3d at 95.
Remaining Allegations of Error
Because the Court finds that the ALJ's error in evaluating the Plaintiff's subjective symptomology is a sufficient basis to remand this matter for further consideration, the Court declines to address Plaintiff's remaining allegations. See Hancock v. Barnhart, 206 F.Supp.2d 757, 763 n.3 (W.D. Va. 2002). However, on remand, the ALJ should consider Plaintiff's remaining allegations of error.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the undersigned recommends that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g), and the case is REMANDED to the Commissioner for further administrative action consistent with this Report and Recommendation.
IT IS SO RECOMMENDED.