Opinion
5:23-CV-00511-FL
07-19-2024
Patricia Anderson, Plaintiff, v. Martin O'Malley, Commissioner of Social Security, Defendant.
MEMORANDUM & RECOMMENDATION
ROBERT T. NUMBERS, II., UNITED STATES MAGISTRATE JUDGE,
Plaintiff Patricia Anderson challenges an Administrative Law Judge's decision to deny her application for social security income. Anderson claims that the ALJ made two errors in reaching that determination. First, the ALJ erred in evaluating her conditions under the Listing of Impairments. And second, the ALJ failed to properly assess Anderson's time-off task and absences when determining her residual functional capacity (RFC). Both Anderson and Defendant Martin O'Malley, Commissioner of Social Security, seek a decision in their favor. D.E. 10, 14.
After reviewing the parties' arguments, the undersigned has determined that the ALJ erred in her determination. The evidence does not support the ALJ's step three determination. And despite evidence that Anderson would have trouble maintaining regular attendance and remain on task, the RFC did not examine these abilities or specifically address why they resulted in no additional restrictions. So the undersigned recommends that the court grant Anderson relief, deny O'Malley relief, and remand this matter to the Commissioner for further consideration.
The court has referred this matter to the undersigned for entry of a Memorandum and Recommendation. 28 U.S.C. § 636(b).
I. Background
A. Factual
Anderson has diagnoses of neuropathy, mast cell activations syndrome (MCAS), postural orthostatic tachycardia syndrome (POTS), as well as a separate assessment of syncope, and neuropathy. Tr. at 488.
Anderson presented to Piedmont Health in November 2018 for a follow-up evaluation of her MCAS. She took medication for her chronic weakness and fatigue. Id. Anderson continued to work full-time, and providers noted that her condition had been stable for the past two years. Id. Noting no remarkable findings, they assessed dysfunctional autonomic nervous system, idiopathic urticaria, and a history of food allergies. Id.
Anderson visited Vidant Health four months later to determine whether she suffered from Ehlers Danlers Syndrome (EDS). Although she had hypermobile joints, a history of occasional joint subluxation, chronic joint pain, and early onset osteoarthritis, providers believed that she did not have EDS. Tr. at 492-93. But the fatigue, dysautonomia, and POTS that she experienced often occurred with EDS. Tr. at 493.
Later that month, Anderson went to Cardiac Rhythm Associates for evaluation of her syncope. Id. Testing results five years earlier tracked cardiogenic syncope and mild POTS. Id. Anderson's symptoms included weakness, tremors, and a racing heartbeat. Id. And asthma, migraine headaches, and MCAS were among her diagnoses. Id. Providers recommended medication and exercise. Id.
Around this time, Dr. Frank Lichtenberger of Piedmont Health provided a statement. Tr. at 498. He outlined Anderson's symptoms, including severe fatigue, weakness, and cognitive dysfunction. Id. He noted he reduced abilities to sit, stand, and walk and to perform skills requiring fine motor abilities. Tr. at 498-99.
Anderson returned to Vidant Health in July 2019 for another evaluation of EDS. Tr. at 493. She reported diffuse joint pain, headaches, recurrent sprains, and joint laxity with spontaneous subluxations. Id. Treatment notes also reflected poor endurance and occasional numbness and tingling. Id. And examination found some joint hypermobility. Id. Providers assessed generalized hypermobility spectrum disorder. Id. They advised her to see about a home therapy program. Id.
At a follow-up visit at Piedmont Health four months later, Anderson reported some benefit from therapy but not at the level she desired. Id. Anderson's symptoms, which were intermittently severe, had reduced her daily activities. Id. On her best days, she could perform daily activities for two or three hours. Id. But on some days, even minimal activities exceeded her abilities. Id. Records also reflect issues with cognitive functioning as Anderson was making significant mistakes at work. Id.
An examination revealed no significant findings. Id. Based on her POTS, chronic fatigue, insomnia, and MCAS, providers assessed dysfunctional autonomic nervous system, idiopathic urticaria, and peripheral autonomic neuropathy. Id.
A second statement from Dr. Lichtenberger at this time opined that Anderson was disabled and could not work. Tr. at 499.
At a return appointment four months later, Anderson received a B12 injection. Tr. at 493. Providers prescribed medication for her sleep issues. Tr. at 494. And they noted the high dose medications she took for her conditions. Id. Anderson reported significant pain and lower extremity discomfort. Id. And records show that she had significant symptoms of peripheral neuropathy. Id.
Dr. Lichtenberger's third statement in July 2020 reflects that Anderson could not remember verbal instructions or process information. Tr. at 500. She also had trouble concentrating. Id. He opined that she could sit for 30 minutes, stand for 15 minutes, and lift five to ten pounds. Id. Dr. Lichtenberger also concluded that she had postural, manipulative, and environmental limitations. Id.
In July 2021, Anderson had a consultative physical examination with Lauren Flanagan, PA. Tr. at 494. She could perform daily activities for about ten or fifteen minutes before she would have to take a ten-minute break. Id. She could walk without a cane but functioned better with one. Id. Anderson displayed intermittent tremors in her bilateral hands and arms. Id. And her gait was steady and symmetric. Id.
Flanagan concluded that Anderson could sit, stand, and walk normally. Tr. at 499. But she needed a cane to walk long distances or traverse uneven terrain. Id. She found no significant restrictions in Anderson's ability to lift and carry. Id. And Flanagan assessed no postural or manipulative limitations. Id.
As to Anderson's mental health, providers have assessed anxiety and depression. Tr. at 488. Although she appeared to do well with medication, Anderson reported some cognitive deficits that affected her work. Tr. at 494. In February 2019, she had trouble with math and completing paperwork. Tr. at 494-95. And Anderson worried about making mistakes. Tr. at 495. But she was satisfied with her medications, which helped her anxiety. Id.
Kelly Crenshaw, NP-C, of Carolina Health Partners provided a statement in May 2019. Tr. at 499. She found that limiting Anderson to mild intermittent activity could prevent exacerbation of her symptoms. Id. Crenshaw noted that Anderson had an unpredictable ability to sustain activity for even a few hours each day. Id. And her symptoms worsened with mere sedentary activity. Id. Crenshaw opined that Anderson had marked limitations in performing daily activities and completing tasks. Id. Her symptoms were severe, unpredictable, and occurred several days a week, affecting her ability to maintain work. Id.
By November 2020, Anderson was having significant problems with memory. Tr. at 495. She again sought treatment at Piedmont Health, reporting a continued decline in her condition. Tr. at 494-95. Anderson no longer drove long distances and would lose words. Id. She had issues with her short-term memory, forgetting plans or getting lost on errands. Id. And her memory loss made daily activities very hard. Id. Providers referred her for a neurology consultation. Tr. at 495.
Robert Radson performed a psychological consultative examination six months later. Id. He noted that Anderson was anxious and teary-eyed. Id. She had average attending skills, with responses that were logical and relevant but long and rambling. Id. Her immediate recall was generally good, but she had more trouble with intermediate recall. Id. But Anderson could remember details from the day before and from her childhood. Id.
Radson assessed anxiety and major depression. Id. He determined that she could follow simple instructions and sustain attention for simple tasks. Id. Some complex instructions and tasks were also possible. Id. But Radson found that Anderson would have trouble tolerating the stress of daily work and relating to coworkers and supervisors. Id.
Nine months later, Anderson returned to Piedmont Health again reporting cognitive dysfunction and unexplained reactions to environmental triggers. Id. Providers prescribed medication. Tr. at 496.
State agency physicians determined that Anderson could perform light work with postural and environmental limitations. Id. On her subsequent application, state agency physicians again found that she could do light work with similar limitations. Tr. at 497.
State agency psychologists determined that Anderson could understand, remember, and follow short, simple instructions and maintain concentration, persistence, and pace to do so in two-hour increments. Id.
On her later application, the state agency psychologist at the initial level concluded that Anderson had moderate limitations in the four broad mental functioning areas. Tr. at 497-98. He also found that she could understand and remember simple instructions and maintain attention and concentration for simple tasks and simple work-related activities. Tr. at 498. And Anderson could interact with others on a limited basis. Id.
At the reconsideration level, the state agency psychologist determined that Anderson could understand and remember simple instructions. Id. But she had marked limitations in concentrating, persisting, and maintaining pace. Id. She could not carry out instructions for two-hour periods during an eight-hour workday. Id. Anderson could interact with others in a limited capacity. Id. But she could adapt to minor changes, recognize normal hazards, and manage simple, routine work pressures. Id.
Anderson testified that she stopped working because of worsening symptoms. Tr. at 492. Tremors made typing difficult and she could not keep up with work tasks because of memory problems. Id. She has experienced dizziness with nausea and vomiting. Id. Anderson uses an assistive device for lower extremity weakness and imbalance. Id. She can walk about 50 feet without a cane but has had falls. Id.
Anderson has some bad days each month where she cannot get out of bed. Id. And on her better days, she had to lie down after being up for a few hours. Id. She does not cook much and performs little housework because of fatigue. Id.
B. Procedural
In October 2019, Anderson applied for disability benefits alleging a disability that began seven months earlier. After the Social Security Administration denied her claim at the initial level and upon reconsideration, Anderson appeared for a hearing before an ALJ to determine whether she was entitled to benefits. The ALJ determined Anderson had no right to benefits because she was not disabled. Tr. at 11-25.
After the Appeals Council upheld that decision, Anderson filed a claim in this court. See Anderson v. Kijakazi, No. 5:21-CV-138-FL (E.D. N.C. ). The court granted a consent order to remand the action to the Commissioner. See Order, D.E. 22. The Appeals Council's remand order directed the ALJ to reexamine the step three finding by considering Listing 14.06. Tr. at 581-82.
Anderson appeared before the ALJ for a second hearing by telephone. Following the hearing, the ALJ again determined that Anderson had no right to benefits because she was not disabled. Tr. at 485-502. The ALJ found that Anderson lived with several severe impairments. Tr. at 488. These included mast cell activation syndrome (MCAS), postural orthostatic tachycardia syndrome (POTS), idiopathic peripheral autonomic neuropathy, neurocardiogenic syncope other than POTS, depression, and anxiety. Id. The ALJ also found that Anderson's impairments, either alone or in combination, did not meet or equal a Listing impairment. Tr. at 489.
Next, the ALJ determined that Anderson had the residual functional capacity (RFC) to perform light work with other limitations. Tr. at 491. She can occasionally climb ramps and stairs but never climb ladders, ropes, or scaffolds. Id. Anderson can occasionally balance and frequently stoop, kneel, crouch, and crawl. Id. And she can frequently perform bilateral handling and fingering. Id.
Anderson cannot be exposed to unprotected heights, moving mechanical parts, or extreme temperatures. Id. But she can have occasional exposure to odors, fumes, and pulmonary irritants. Id.
Anderson can perform simple, routine, repetitive tasks not involving a production rate pace, meaning no assembly line work. Id. And she can make simple, work-related decisions. Id. Finally, Anderson can have frequent interactions with others. Id.
The ALJ then determined that Anderson could not perform her past work as a human resources clerk or commercial loan analyst. Tr. at 501. But considering her age, education, work experience, and RFC, the ALJ found that other jobs existed in significant numbers in the national economy that Anderson could perform. Tr. at 501-02. These included mail clerk, shipping and receiving clerk, and rental clerk. Id. These findings led the ALJ to conclude that Anderson was not disabled. Tr. at 502.
After unsuccessfully seeking review by the Appeals Council, Anderson commenced this action in September 2023. D.E. 1. Both parties seek the court to issue a decision in their favor. D.E. 10, 14.
II. Analysis
The Appeals Council directed the ALJ to evaluate Anderson's condition under Listing 14.06. Tr. at 581-84. The remand order summarized the evidence that showed the presence of the criteria for the Listing. Tr. at 582. But the ALJ erred in her step three finding. And the record does not support the reasons she offered in concluding that Anderson did not satisfy the criteria of Listing 14.06A. And the record shows the presence of the Listing criteria and supports a conclusion that Anderson meets or equals the Listing. So remand is again warranted for the ALJ to reexamine the step three findings.
The assignment of a different ALJ may better address this continuing issue in accordance with previous directives.
Anderson regularly reported issues with fatigue and pain and had trouble keeping pace. Because of her symptoms, Anderson had disturbed sleep, would have to lie down after a few hours, and sometimes spent all day in bed. The record documents these reports to providers. But her residual functional capacity (RFC) neither included allowances for additional time off-task or work absences, nor offered sound reasons why the ALJ found that these symptoms required no additional restrictions. So this issue, too, supports a basis for remand.
A. Standard for Review of the Commissioner's Final Decision
When a claimant appeals the Commissioner's final decision, the district court considers whether, based on the entire administrative record, there is substantial evidence to support the Commissioner's findings. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is “evidence which a reasoning mind would accept as sufficient to support a particular conclusion.” Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). The court must affirm the Commissioner's decision if it is supported by substantial evidence. Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996).
B. Standard for Evaluating Disability
Under the Social Security Act, a claimant is disabled if they are unable “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 months.” 42 U.S.C. § 423(d)(1)(A). ALJs use a five-step, sequential process when considering disability claims. 20 C.F.R. § 404.1520.
First, at step one, the ALJ considers whether the claimant is engaged in substantial gainful activity. Id. § 404.1520(a)(4)(i). If so, the claim is denied. Id.
Then, at step two, the ALJ looks at whether the claimant has a severe impairment or combination of impairments that significantly limit him from performing basic work activities. Id. § 404.1520(a)(4)(ii). If not, the claim is denied. Id.
Next, at step three, the ALJ compares the claimant's impairments to those in the Listing of Impairments. Id. § 404.1520(a)(4)(iii). If the impairment appears in the Listing or if it is equal to a listed impairment, the ALJ must find that the claimant is disabled. Id.
But if the ALJ concludes that a presumption of disability is unwarranted, the ALJ must then assess the claimant's residual functional capacity (“RFC”). A claimant's RFC “is the most work-related activity the claimant can do despite all of her medically determinable impairments and the limitations they cause.” Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 90 (4th Cir. 2020). Determining the RFC requires the ALJ to “first identify the claimant's ‘functional limitations or restrictions' and assess the claimant's ‘ability to do sustained work-related' activities ‘on a regular and continuing basis'-i.e., ‘8 hours a day, for 5 days a week, or an equivalent work schedule.'” Id. (quoting SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996)). The ALJ will then “express the claimant's Residual Functional Capacity ‘in terms of the exertional levels of work[:] sedentary, light, medium, heavy, and very heavy.'” Id. (alteration in original).
After assessing the claimant's RFC, the ALJ, at step four, considers whether the claimant can perform his past work despite his impairments. Id. § 404.1520(a)(4)(iv). If the claimant can, the ALJ will deny the claim. Id. If the claimant cannot, the analysis moves on to step five.
This final step considers whether the claimant, based on his age, work experience, and RFC, can perform other substantial gainful work. Id. § 404.1520(a)(4)(v). If so, the claimant is not disabled; if so, they are considered disabled. Id.
The burden of proof shifts between the Commissioner and the claimant during the evaluation process. The claimant has the burden of proof on the first four steps, but the Commissioner bears it on the last one. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
C. Step Three
Anderson contends that the ALJ erred by finding that her impairments did not meet or medically equal the requirements of Listing 14.06A. The Commissioner maintains that the evidentiary record supports the ALJ's finding. The undersigned finds that this issue requires further consideration.
1. Overview of Listing of Impairments
The Listing of Impairments details impairments that are “severe enough to prevent an individual from doing any gainful activity.” 20 C.F.R. § 416.925(a). If a claimant's impairments meet all the criteria of a particular listing, id. § 416.925(c)(3), or are medically equivalent to a listing, id. § 416.926, the claimant is considered disabled, id. § 416.920(d). “The Secretary explicitly has set the medical criteria defining the listed impairments at a higher level of severity than the statutory standard [for disability more generally]. The listings define impairments that would prevent an adult, regardless of his age, education, or work experience, from performing any gainful activity, not just ‘substantial gainful activity.'” Sullivan v. Zebley, 493 U.S. 521, 532 (1990); see also Bowen v. Yuckert, 482 U.S. 137, 153 (1987) (stating that the listings are designed to weed out only those claimants “whose medical impairments are so severe that it is likely they would be disabled regardless of their vocational background”).
The claimant has the burden of proving that his or her impairments meet or medically equal a listed impairment. Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981); see also Hancock v. Astrue, 667 F.3d 470, 476 (4th Cir. 2012). As a result, a claimant must present medical findings equal in severity to all the criteria for that listing: “[a]n impairment that manifests only some of those criteria, no matter how severely, does not qualify.” Sullivan, 493 U.S. at 530-31; see also 20 C.F.R. § 416.925(c)(3). A diagnosis of a particular condition, by itself, cannot establish that a claimant satisfies a listing's criteria. 20 C.F.R. § 416.925(d); see also Mecimore v. Astrue, No. 5:10-CV-64, 2010 WL 7281096, at *5 (W.D. N.C. Dec. 10, 2010) (“Diagnosis of a particular condition or recognition of certain symptoms do not establish disability.”).
An ALJ need not explicitly identify and discuss every possible listing that may apply to a particular claimant. Instead, the ALJ must provide a coherent basis for his step three determination, particularly where the “medical record includes a fair amount of evidence” that a claimant's impairment meets a disability listing. Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013). When the evidence exists but is rejected without discussion, the “insufficient legal analysis makes it impossible for a reviewing court to evaluate whether substantial evidence supports the ALJ's findings.” Id. (citing Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986)). In reviewing the ALJ's analysis, perhaps even “[a] cursory explanation” at step three may prove “satisfactory so long as the decision as a whole demonstrates that the ALJ considered the relevant evidence of record and there is substantial evidence to support the conclusion.” Meador v. Colvin, No. 7:13-CV-214, 2015 WL 1477894, at *3 (W.D. Va. Mar. 27, 2015) (citing Smith v. Astrue, 457 Fed.Appx. 326, 328 (4th Cir. 2011)). Still, the ALJ's decision must include “a sufficient discussion of the evidence and explanation of its reasoning such that meaningful judicial review is possible.” Id.
2. Listing 14.06A
At step three, the ALJ found that Anderson's impairments did not meet or medically equal Listing 14.06A. Tr. at 489-91. The ALJ examined her symptoms under Listing 14.06A but found that she did not satisfy the second prong of its criteria. Tr. at 489-90.
Listing 14.06 deals with undifferentiated and mixed connective tissue disease. It requires a claimant to show a condition described in 14.00D5 that meets the criteria set forth in either one of two subparagraphs. Anderson argues that she meets the first subparagraph:
The parties do not dispute that Anderson has a condition described in that section.
A. Involvement of two or more organs/body systems with:
1. One of the organs/body systems involved to at least a moderate level of severity; and
2. At least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss).20 C.F.R., Part 404, Subpt. P, Appx. 1, § 14.06A.
Anderson does not argue that she satisfies the elements of subparagraph B, so the analysis does not examine its criteria.
a. ALJ's Findings
The ALJ made no findings on whether the evidence satisfied the first prong of Listing 14.06A. On the second prong, the ALJ determined that the “overall evidence” failed to “support the existence of at least two of the constitutional symptoms or signs . . . namely fatigue and malaise.” Tr. at 489. The ALJ referenced the definitions of these terms set forth in the 14.00 Listing. Id.
“Severe fatigue means a frequent sense of exhaustion that results in significantly reduced physical activity or mental function. Malaise means frequent feelings of illness, bodily discomfort, or lack of well-being that result in significantly reduced physical activity or mental function.” 20 C.F.R. Part 404, Subpt. P, Appx. 1, § 14.00B(2).
Anderson reported fatigue and her providers noted it in their records. But the ALJ determined that treatment note advising that she exercise suggested greater functional ability. Id. The ALJ pointed out that Anderson had unremarkable physical and neurological examinations and no evidence of an increase in mast cells. Id.
Anderson also had no marked limitations in mental functioning. Id. While she complained of cognitive deficits and memory loss, she presented as alert and paid attention. Tr. at 489-90. A May 2021 consultative examination noted that she correctly performed serial 7s and found that she had average attending skills. Tr. at 490. Anderson could follow simple instructions and some complex ones and perform simple tasks as well as some complex tasks. Id.
The ALJ also observed that Anderson cared for her aging parents and managed their estate. Id. And this responsibility indicated greater mental abilities than the Listing contemplated. Id.
Anderson challenges the ALJ's step three findings that concluded Anderson had greater functional ability than she alleged. Anderson contends, and the undersigned agrees, that the ALJ's conclusions overstate the evidence.
Although providers advised Anderson to exercise in 2014, this suggestion was offered to address other symptoms, like managing fatigue, reducing pain, and minimizing the potential for injury. More recent reports mentioned that yoga may help her symptoms and that she should engage in exercise as she could tolerate it. So this finding fails to suggest greater functional abilities, as the ALJ concluded.
A single record from June 2021 mentions walking one mile a day. Considering the overall record, including numerous reports of fatigue and pain, this isolated entry does not carry the import the ALJ assigned to it. In the months after this treatment note, Anderson experienced worsening symptoms, with increased flares, anxiety, and insomnia. She reported an increase in fatigue and would fall asleep after being up for only a few hours. She reported similar symptoms in 2023. So even if Anderson could walk a mile a day in June 2021, there is no evidence she continued to retain this ability over the next two years.
As Anderson notes, nothing in the record reflects that she leads an active lifestyle, as the ALJ seems to suggest.
Anderson also challenges the ALJ's conclusion that she cared for her elderly parents and managed their estate as incorrect. The ALJ found that this signified greater mental functioning. But Anderson claims that she neither cared for her elderly parents nor managed their estate. Instead, she worried about having to do so and reported this concern to her providers. Tr. at 53234 (emphasis added).
The ALJ's reference to unremarkable psychologic and neurologic examinations also fails to detract from the severity of Anderson's MCAS diagnosis. As she points out, there is no objective measurement of pain, fatigue, malaise, or other symptoms that produce only subjective signs.
The ALJ also remarked that she had no increase in mast cells. But this not a requirement of the Listing. Nor is its relevancy apparent.
So the record does not support the reasons offered by the ALJ in analyzing Anderson's MCAS under Listing 14.06A. And her conclusion that Anderson's condition does not satisfy the Listing lacks the support of substantial evidence.
b. Prong One
Anderson points to evidence that shows the criteria for Listing 14.06A. First, the record shows evidence involvement of at least two of her organs or body systems. For her respiratory system, there is evidence of shortness of breath, asthma, anaphylaxis, and allergies from both food and environmental triggers. Anderson's skin suffered from hives, eczema, and psoriasis.
She consistently reported joint pain, for which she received injections, as well as peripheral neuropathy, which demonstrate the involvement of her musculoskeletal system.
There is also evidence of how the condition affected her gastrointestinal system. Records reflect reports of abdominal pain. And Anderson experienced bouts of constipation and diarrhea.
Psychologically, the evidence shows many instances when Anderson experienced brain fog, depression, anxiety, impaired cognition, memory difficulty, and preoccupation with thoughts. The consultative examiner concluded that she would have trouble tolerating the stress of daily work and relating to others. Anderson reported that her insomnia worsened during periods of heightened anxiety, which would exacerbate her fatigue. By 2022, she was experiencing an increase in her anxiety.
In response, the Commissioner contends that the record fails to show two of the required signs or symptoms to satisfy Listing 14.06A. And he maintains that Anderson's MCAS was well-controlled with treatment. The undersigned disagrees.
First, it is hard to examine the record and conclude that Anderson's MCAS was well-controlled. And a review of the ALJ's decision does not reflect that she made such a finding.
As Anderson argues, the record is filled with evidence showing the effect of MCAS on several of her body systems. The effects were neither solitary symptoms nor isolated occurrences with only minimal impact. Instead, the record reveals consistent reports of multiple symptoms concerning no fewer than five organs or body systems. These symptoms significantly disrupted Anderson's functional abilities.
So the record unequivocally shows that MCAS impacted several of Anderson's body systems. And the undersigned concludes that the MCAS's effect on many, if not all, of Anderson's affected body systems was more than mild and reached at least a moderate level of severity. So the record satisfies prong one of Listing 14.06A.
c. Prong Two
The evidence also reflects the presence of the second prong's criteria. Anderson statements reflect that experienced severe fatigue. She stopped working, in part, because of her severe fatigue. By 2023, Anderson experienced constant weakness and fatigue. These symptoms worsened as the day progressed. And there were days, about twice a week, that Anderson could not get out of bed.
The medical records also note her fatigue. In 2018, she took medication for her constant weakness and fatigue. Treatment notes from 2019 reflect her reports of fatigue, which providers characterized as severe and disabling. Later records document that Anderson had chronic fatigue and was easily fatigued. A year later, providers found that Anderson's fatigue had a marked limitation of her physical functioning. And in 2021, the evidence points out that she would fall asleep after being awake only a few hours.
The longitudinal record also demonstrates that Anderson had malaise. Anderson would lie down throughout the day and sometimes all day. She had several bad days each month where she felt unwell and complained of pain.
Treatment records support the presence of malaise. In 2019, providers noted her symptoms included malaise. Tr. at 287. Ten months later, the record shows that she had significant discomfort in her lower extremities. Tr. at 374. Providers classified her pain as moderate four months later. Tr. at 380. And the evidence shows that Anderson continued to experience disease flares, as documented in April 2022 and January 2023. Tr. at 973.
Finally, as Anderson points out, she has experienced a low-grade fever at times, as providers observed. Tr. at 287.
The Commissioner disputes a conclusion that the evidence demonstrates the presence of two constitutional signs or symptoms required under prong two. And he claims that there is no showing that Anderson experienced significant limitations in her mental functioning. The undersigned is unpersuaded.
The Commissioner maintains that Anderson routinely presented as alert and oriented. But this hardly undermines the existence of other affirmative mental status findings. The consultative examiner noted that Anderson had average attending skills and correctly performed serial 7s. Thus he determined that she could follow simple instructions and sustain attention to perform simple, repetitive tasks.
Yet the same consultative examine concluded that Anderson would have trouble tolerating stress and relating to coworkers. And providers noted rapid thought processes and preoccupations.
Other evidence in the record signals the psychological symptoms she experienced and their effect on her mental functioning. As noted above, Anderson suffered from anxiety, depression, and insomnia. The record shows that stress aggravated her symptoms. Anderson reported brain fog, trouble with her memory, and impaired cognition. And she could no longer concentrate enough to do cross stitch as she once had done. She may go days without bathing.
The evidence showed physical indications consistent with malaise. She had tremors and weakness in her lower extremities. Anderson used a cane, or sometimes a walker, for weakness and imbalance. And she had suffered falls. Anderson also experienced dizziness and had bouts of nausea with vomiting.
One reason Anderson stopped working was her inability to keep pace. She did little cooking and only few chores. Sometimes Anderson could walk no farther than the mailbox.
This evidence reveals sufficient evidence to satisfy the second prong of Listing 14.06A. The longitudinal record does not support any findings to the contrary by the ALJ.
In sum, there is ample evidence showing the presence of the Listing 14.06A criteria. The record does not support the ALJ's step three analysis. So the undersigned finds this issue supports a basis for remand.
Aside from the fact that the record supports the presence of criteria for both prongs of Listing 14.06A, the matter warrants additional consideration because the ALJ's decision conflicts with the Appeals Council's remand order. For remanded cases, the Regulations provide that the ALJ “shall take any action that is ordered by the Appeals Council and may take any additional action that is not inconsistent with the Appeals Council's remand order.” 20 C.F.R. § 404.977(b). Courts are divided on whether an ALJ's failure to comply with an Appeals Council remand order may serve as an independent ground for reversal, and the Fourth Circuit has not definitively addressed the issue. Radford v. Saul, No. 1:20-CV-428, 2021 WL 4234955, at *5 (S.D. W.Va. June 17, 2021); Erickson v. Colvin, No. 5:14-CV-74, 2015 WL 3892293, at *3-4 (N.D. W.Va. June 24, 2015); Ginger N. v. Comm 'r, Soc. Sec. Admin., No. 18-CV-1830, 2019 WL 1903548, at *2 (D. Md. Apr. 29, 2019) (collecting cases); but see Smith v. Colvin, No. 1:12-CV-1247, 2015 WL 3505201, at *3 (M.D. N.C. June 3, 2015) (Appeals Council's remand order “constitutes an intermediate agency action” that is not subject to the district court's review). But courts have determined that remand is warranted when the ALJ failed to abide by the entire remand order, even if he followed its specific directives. See Farmer v. Comm'r, Soc. Sec. Admin., No. 1:17-CV-2579, 2018 WL 3750976, at *3 (N.D.Ga. July 10, 2018), adopted, Farmer v. Berryhill, No. 1:17-CV-2579-TWT, 2018 WL 3744197 (N.D.Ga. Aug. 7, 2018) (“Appeals Council's statements must be read in context of the entirety of its order . . . the ALJ must comply with a mandate to consider additional points if such a mandate is clear from the context of the Appeals Council's entire order.”) (citing Fincher v. Astrue, No. 5:06-CV-336 (CAR), 2008 WL 821855, at *2 (M.D. Ga. Mar. 25, 2008) (Appeals Council remand order discussed claimant's syncope, slurred speech, and confusion, but the ALJ did not discuss or consider these symptoms on remand; Commissioner's argument that “the Appeals Council did not specifically include instructions to consider these conditions” was unpersuasive because the scope and context of the entire order must be considered) (in turn, citing Tauber v. Barnhart, 438 F.Supp.2d 1366, 1375 (N.D.Ga. Mar. 31, 2006) (disagreeing that statements by Appeals Council in remand order simply conveyed pertinent facts; read in context of the entire order, the Appeals Council order mandate was clear about what was required and where the ALJ failed to follow such directives constituted error))). So the undersigned is unpersuaded by the Commissioner's argument, for which he cited no legal authority, that the remand order made no findings but merely provided supplementary explanations. D.E. 14 at 14. Here, the Appeals Council observed that the evidence “confirm[s] at least two of the constitutional symptoms or signs” for Listing 14.06 (prong two). Tr. at 582. It also noted that the ALJ made no finding about whether two or more body systems were involved (prong one). Id. Yet, on remand the ALJ made findings that contradict the Appeals Council's order on prong two. And she again made no findings whether the evidence showed the second prong of Listing 14.06, as the remand order guided, if not instructed. Even if the ALJ's step three analysis complies with the remand order's instructions to further consider whether Anderson's MCAS satisfies Listing 14.06, her determination conflicts with statements made by the Appeals Council in its remand order. Because the ALJ's decision departs from the complete directives on step three set out in Appeals Council's remand order, it contravenes the relevant Regulation. 20 C.F.R. § 404.977(b); see Mullen v. Bowen, 800 F.2d 535 (6th Cir. 1986) (“[S]tatutorily mandated deference to findings of fact under [Social Security Act] runs in favor of Appeals Council” rather than for administrative law judge when findings of appeals council and administrative law judge are in conflict.). So the fact that the ALJ's findings conflict with the Appeals Council's remand order would provide an additional basis for remand.
D. Time off-Task and Absences
Anderson also argues that the ALJ failed to properly examine times she would be off-task or absent when determining her residual functional capacity (RFC). The Commissioner asserts that no additional limitations are required. The undersigned concludes that this issue warrants additional consideration.
The RFC is a determination, based on all the relevant medical and non-medical evidence, of what a claimant can still do despite her impairments; the assessment of a claimant's RFC is the responsibility of the ALJ. See 20 C.F.R. §§ 404.1520, 404.1545, 404.1546; SSR 96-8p, 1996 WL 374184, at *2. If more than one impairment is present, the ALJ must consider all medically determinable impairments, including medically determinable impairments that are not “severe,” when determining the claimant's RFC. Id. §§ 404.1545(a), 416.945(a). The ALJ must also consider the combined effect of all impairments regardless of whether any such impairment, if considered separately, would be of sufficient severity. Id. § 404.1523; see Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989) (“[I]n evaluating the effect[] of various impairments upon a disability benefit claimant, the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them.”).
The ALJ must provide “findings and determinations sufficiently articulated to permit meaningful judicial review.” DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983); see also Wyatt v. Bowen, 887 F.2d 1082, 1989 WL 117940, at *4 (4th Cir. 1989) (per curiam). The ALJ's RFC determination “must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).” Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting SSR 96-8p). Furthermore, “[t]he 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.” Radford, 734 F.3d at 295. Fourth Circuit precedent “makes it clear that it is not [the court's] role to speculate as to how the ALJ applied the law to [her] findings or to hypothesize the ALJ's justifications that would perhaps find support in the record. Fox v. Colvin, 632 Fed.Appx. 750, 755 (4th Cir. 2015).
Social Security Ruling 96-8p explains how adjudicators should assess residual functional capacity. The Ruling instructs that the residual functional capacity “assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions” listed in the regulations. “Only after that may [residual functional capacity] be expressed in terms of the exertional levels of work, sedentary, light, medium, heavy, and very heavy.” SSR 96-8p. The Ruling further explains that the residual functional capacity “assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).” Id.
There is no “per se rule requiring remand when the ALJ does not perform an explicit function-by-function analysis[.]” Mascio, 780 F.3d at 636. But “[r]emand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review.” Id. (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)). The function-by-function requirement can be satisfied by reference to a properly conducted analysis by a state agency consultant. See, e.g., Linares v. Colvin, No. 5:14-CV-00129, 2015 WL 4389533, at *3 (W.D. N.C. July 17, 2015) (“Because the ALJ based his RFC finding, in part, on the function-by-function analysis of the State agency consultant, the ALJ's function-by-function analysis complied with [Soc. Sec. Ruling] 96-8p” (citing Lemken v. Astrue, No. 5:07-CV-33-RLV-DCK, 2010 WL 5057130, at *8 (W.D. N.C. July 26, 2010))).
The ALJ found that Anderson could perform light work with some postural, manipulative, environmental, and nonexertional limitations. Tr. at 491. But it provided no allowance for time off-task or work absences. Id.
Anderson contends the evidence shows that she would require additional breaks or absences from work. She testified that she has significant fatigue, which contributed to her stopping work. In her last job, she took frequent breaks and would lie down. After being up for just a few hours, Anderson has to lie down. She becomes more tired as the day progresses. And Anderson has several bad days each month when she cannot get out of bed.
The Commissioner argues that the RFC required no additional limitations to address Anderson's time off-task or absences because the record did not support such restrictions.
But the evidence corroborates her symptoms. The undersigned thus finds that this issue requires additional consideration.
The ALJ remarked that Anderson had limited or stopped daily activities because of her symptoms. Tr. at 493. She could perform daily activities for two to three hours, but some days she could not perform even minimal functions. Id. The record showed impaired sleep and diffuse pain.
Providers observed that her fatigue markedly limited Anderson's physical functioning. In 2021, providers noted that Anderson took 10-minute breaks with daily activities. The next year, she had significant trouble with her daily activities because of memory loss.
She stopped working, in part, because of her severe fatigue. By 2023, Anderson experienced constant weakness and fatigue. These symptoms worsened as the day progressed. And about twice a week Anderson could not get out of bed.
As noted, the record contains abundant indications of her persistent fatigue. Providers prescribed medication for her constant weakness and fatigue. Providers characterized her fatigue as chronic, severe, disabling, and occurring easily.
The ALJ cited reasons why she believed Anderson had greater mental and physical functional abilities than she claimed. But as discussed above, the record does not support her proffered explanations. So contrary to the ALJ's findings, there is no sound basis supporting a conclusion that Anderson can do more than she alleges.
In sum, there is no evidence supporting the ALJ's decision to omit limitations addressing additional time off-task or work absences. The record shows that Anderson's symptoms may impede her ability to stay on-task or maintain attendance within an employer's customary tolerances. But the RFC contains no corresponding restrictions. And the ALJ failed to offer sound reasons to discount the evidence supporting such symptoms.
The undersigned thus concludes that Anderson's claim has merit. So the court should remand for further consideration of this issue.
III. Conclusion
For these reasons, the undersigned recommends that the court grant Anderson's request for relief (D.E. 10), deny O'Malley's request for relief (D.E. 14), and remand this matter to the Commissioner for further consideration.
The Clerk of Court must serve a copy of this Memorandum and Recommendation (M&R) on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them.
The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals.