Opinion
C/A No.: 1:18-2798-RMG-SVH
09-18-2019
Kristie Michelle Bedenbaugh, Plaintiff, v. Andrew M. Saul, Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
This appeal from a denial of social security benefits is before the court for a Report and Recommendation ("Report") pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her claim for Disability Insurance Benefits ("DIB"). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether he applied the proper legal standards. For the reasons that follow, the undersigned recommends that the Commissioner's decision be reversed and remanded for further proceedings as set forth herein. I. Relevant Background
A. Procedural History
On January 5, 2015, Plaintiff protectively filed an application for DIB in which she alleged her disability began on December 20, 2013. Tr. at 147-50. Her application was denied initially and upon reconsideration. Tr. at 93-96, 101-06. On June 29, 2017, Plaintiff had a hearing before Administrative Law Judge ("ALJ") Nicholas Walter. Tr. at 29-62 (Hr'g Tr.). The ALJ issued an unfavorable decision on November 17, 2017, finding Plaintiff was not disabled within the meaning of the Act. Tr. at 9-28. Subsequently, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. Tr. at 1-6. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on October 16, 2018. [ECF No. 1].
B. Plaintiff's Background and Medical History
1. Background
Plaintiff was 42 years old at the time of the hearing. Tr. at 35. She completed high school. Tr. at 38. Her past relevant work ("PRW") was as an accounting clerk, a tax auditor, a court clerk, and a loan clerk. Tr. at 58. She alleges she has been unable to work since December 20, 2013. Tr. at 42.
2. Medical History
On January 9, 2014, Plaintiff presented to Joseph Friddle, P.A. ("P.A. Friddle"), for follow up for bipolar I disorder. Tr. at 281. She reported stable mood and good sleep and denied psychosis, suicidal ideation, and homicidal ideation. Id. She complained of stress. Id. P.A. Friddle indicated normal findings on mental status exam, aside from poor judgment. Id. He changed Plaintiff's Lamictal prescription to 100 mg twice a day and continued Prozac and Seroquel. Id.
On January 14, 2014, Plaintiff reported stiffness lasting three hours, fatigue, weight gain, poor sleep, dry eyes, shortness of breath, and pain in her legs, arms, hands, lower back, and neck. Tr. at 392. She indicated she was unable to afford Lyrica and was taking no medication for pain. Id. She stated she had stopped working because of stress. Id. She indicated she had been walking and stretching. Id. Rheumatologist Mayur Patel, M.D. ("Dr. Patel"), noted he was only able to prescribe limited medications because of Plaintiff's bipolar disorder. Id. He observed Plaintiff to have greater than 12 tender points, but noted no other abnormalities on physical exam. Tr. at 392-93. He stated Plaintiff had experienced cognitive decline. Tr. at 393. He indicated a diagnosis of fibromyalgia, instructed Plaintiff to engage in regular exercise, and prescribed Flexeril 5 mg and Tramadol 50 mg three times daily for pain. Id.
On May 12, 2014, Plaintiff reported five hours of stiffness, fatigue, weight gain, poor sleep, dry eyes, eye pain, cough, shortness of breath, chest pain, nausea, vomiting, diarrhea, reflux symptoms, scapular muscle tenderness, pain in her legs and feet, stiffness in her elbows, and difficulty rising from a squatting position. Tr. at 395. She indicated she had stopped working because of pain and complained her medications were too expensive. Id. Dr. Patel observed Plaintiff to have greater than 12 tender points, but noted no other abnormalities on physical exam. Tr. at 395-96. He discontinued Flexeril, prescribed Tizanidine 2 mg twice daily, and continued Tramadol. Tr. at 396. He advised Plaintiff to follow up with her primary care physician for dyspnea. Id.
On July 10, 2014, Plaintiff continued to be pleased with her medications. Tr. at 282. P.A. Friddle indicated normal findings on mental status examination, aside from poor judgment. Id.
Plaintiff presented to Spartanburg Regional Emergency Center for chest pain on August 24, 2014. Tr. at 285. A chest x-ray and cardiac enzymes were normal. Id.
On September 11, 2014, Plaintiff reported she had discontinued Tramadol, Lyrica, and Tizanidine because one of the medications was making her sick and causing drowsiness. Tr. at 397. She complained of pain all over. Id. Dr. Patel noted greater than 12 tender points and flat affect, but no other abnormalities on physical exam. Tr. at 397-98. He instructed Plaintiff to stop Flexeril and Tizanidine, hold Tramadol, and take Lyrica 75 mg twice daily. Tr. at 398. He stated he might need to refer Plaintiff to a pain management specialist. Id.
Plaintiff was transported to Wallace Thomson Hospital on September 29, 2014. Tr. at 339. She admitted that she had overdosed on medication in a suicide attempt. Id. She had two seizures while in the emergency room and was subsequently nonresponsive. Id. The attending physician admitted Plaintiff to the intensive care unit with acute respiratory failure, aspiration pneumonia, septic shock, drug overdose, bipolar disorder with depression, suicidal actions, metabolic and lactic acidosis, multiple seizures, elevated ammonia level, and herpes zoster. Tr. at 333. He discharged Plaintiff to an inpatient psychiatric facility on October 13, 2014, after her conditions stabilized. Tr. at 336.
Plaintiff was involuntarily committed to Patrick B. Harris Psychiatric Hospital from October 13 through October 28, 2014. Tr. at 382-88. Upon admission, she reported feeling depressed over the prior year. Tr at 382. Psychiatrist Amara Chudhary, M.D. ("Dr. Chudhary"), prescribed Venlafaxine ER 150 mg, Topamax 75 mg, Latuda 20 mg, Lamictal 50 mg, and Protonix 40 mg. Id. Plaintiff reported improvement and denied side effects from medication. Tr. at 382-83. Dr. Chudhary recommended Plaintiff's outpatient psychiatrist continue to titrate Lamictal up to an optimal dose of 200 mg. Tr. at 383. She also instructed Plaintiff's roommate to maintain her medications and dispense them to her at the appropriate times. Id. She diagnosed bipolar disorder, not otherwise specified ("NOS") and pain disorder associated with both psychological factors and general medical condition. Id. She observed Plaintiff to have no abnormalities on mental status exam and assessed a global assessment of functioning ("GAF") score of 65 at the time of discharge. Id. She noted Plaintiff was court-ordered to follow up with an outpatient mental health provider. Tr. at 384.
The GAF scale is used to track clinical progress of individuals with respect to psychological, social, and occupational functioning. American Psychiatric Association: Diagnostic & Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000 ("DSM-IV-TR"). The GAF scale provides 10-point ranges of assessment based on symptom severity and level of functioning. Id. If an individual's symptom severity and level of functioning are discordant, the GAF score reflects the worse of the two. Id.
A GAF score of 61-70 indicates "some mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, [and] has some meaningful interpersonal relationships." DSM-IV-TR.
Plaintiff presented to Union Mental Health for an initial clinical assessment on November 4, 2014. Tr. at 406. James W. Platt, M. Div. ("Mr. Platt"), indicated the following abnormal findings on mental status exam: tearful affect; anxious, depressed mood; difficulty with word-finding and organizing thoughts; decreased appetite; and phobias. Tr. at 408-09. He recommended individual treatment with cognitive behavioral therapy ("CBT") twice a month and indicated Plaintiff should consider group therapy, as well. Tr. at 409.
Plaintiff presented to Austin McElhaney, M.D. ("Dr. McElhaney"), on November 7, 2014. Tr. at 389. Dr. McElhaney noted no abnormalities on physical exam. Tr. at 390. He planned to slowly taper Plaintiff off Topamax because she had no history of seizures prior to her suicide attempt. Tr. at 391. He decreased Topamax from 75 mg to 25 mg twice a day and replaced Protonix with Ranitidine 75 mg twice a day. Tr. at 390. Dr. McElhaney referred Plaintiff to a neurologist. Tr. at 391.
On January 20, 2015, Plaintiff reported four hours of stiffness, fatigue, poor sleep, shortness of breath, nausea, reflux, and side effects from medications. Tr. at 399. She complained of pain in the left trochanteric bursa and denied performing exercises. Id. Dr. Patel indicated left trochanteric bursitis, flat affect, and greater than 12 tender points on physical exam. Tr. at 400. He administered a Cortisone injection for left trochanteric bursitis and recommended Plaintiff engage in 20 minutes of daily yoga and 10-15 minutes of daily meditation. Id.
On January 29, 2015, Plaintiff presented to neurologist Carol A. Kooistra, M.D. ("Dr. Kooistra"), for an initial examination. Tr. at 402-03. She indicated her headaches were controlled and she had no history of seizures, aside from the two she experienced while hospitalized for an overdose. Tr. at 402. Dr. Kooistra noted no abnormalities on physical exam. Id. She advised Plaintiff to taper off Topamax by reducing it to one pill a day for two weeks and then discontinuing it. Id.
In a progress summary dated February 2, 2015, Mr. Platt noted Plaintiff was attending weekly group therapy and monthly individual therapy. Tr. at 405. He requested authorization for Plaintiff to attend twice monthly individual therapy sessions. Id. He stated Plaintiff needed to remain in treatment to reduce panic and increase functioning through CBT and mood mindfulness. Id.
On March 10, 2015, Plaintiff presented to psychiatrist Eric K. Winter, M.D. ("Dr. Winter"), for an initial psychiatric medical assessment. Tr. at 425-26. Dr. Winter noted Plaintiff had been ordered by the court to attend treatment and that her partner was administering her medications. Tr. at 425. Plaintiff reported anxiety and difficulty sleeping, but indicated fewer depressive symptoms and no suicidal ideation. Id. A mental status examination was normal, aside from depressed and anxious mood. Tr. at 425. Dr. Winter assessed bipolar I disorder and a GAF score of 55. Tr. at 426. He prescribed Lamictal 100 mg, Venlafaxine XR 150 mg, and Latuda 20 mg. Id.
A GAF score of 51-60 indicates "moderate symptoms (e.g., circumstantial speech and occasional panic attacks) OR moderate difficulty in social or occupational functioning (e.g., few friends, conflicts with peers or co-workers)." DSM-IV-TR.
State agency consultant Silvie Kendall, Ph.D. ("Dr. Kendall"), reviewed Plaintiff's records and completed a psychiatric review technique ("PRT") form on March 17, 2015. She considered Listing 12.04 for affective disorders and assessed the following degrees of functional limitation: moderate restriction of activities of daily living ("ADLs"); moderate difficulties in maintaining social functioning; moderate difficulties in maintaining concentration, persistence, or pace; and one or two repeated episodes of decompensation. Tr. at 68. She completed a mental residual functional capacity ("RFC") assessment and found Plaintiff to be moderately limited with respect to the following abilities: to understand and remember detailed instructions; to carry out detailed instructions; to maintain attention and concentration for extended periods; and to interact appropriately with the general public. Tr. at 71-73. She explained Plaintiff could "understand and remember simple instructions, but may have difficulty with detailed instructions"; could "carry out simple tasks and instructions"; could "maintain concentration and attention for periods of at least 2 hours"; could "carry out simple tasks for 2 hours at a time"; "would perform best in situations that do not require ongoing interaction with the public"; and could "be aware of normal hazards and take appropriate precautions." Tr. at 73. She stated Plaintiff's impairments "would not preclude the performance of simple, repetitive work tasks" and "would not preclude her from carrying out basic work functions." Id.
Also on March 17, 2015, state agency medical consultant Donna Stroud, M.D. ("Dr. Stroud"), reviewed Plaintiff's records and completed a physical RFC assessment. Tr. at 69-71. She indicated the following limitations: occasionally lifting and/or carrying 50 pounds; frequently lifting and/or carrying 25 pounds; standing and/or walking for a total of about six hours in an eight-hour workday; sitting for about six hours in an eight-hour workday; frequently climbing ramps, stairs, ladders, ropes, and scaffolds; unlimited balancing, stooping, kneeling, crouching, and crawling; and avoiding concentrated exposure to hazards. Id.
On April 25, 2015, Joseph G. Grace, Ph.D. ("Dr. Grace"), provided a psychological evaluation for disability that was based on findings from clinical interviews of Plaintiff and testing administered on April 17 and 25, 2015. Tr. at 411. Plaintiff reported the following symptoms: depressed mood for the entirety of most days; anhedonia; obsessional worry and increased anxiety; initial and terminal sleep disturbances; extreme fatigue with little stamina; loss of motivation for productive and recreational activities; decreased concentration and short-term memory; decreased ability to make routine decisions; increased irritability and decreased frustration tolerance; decreased libido; increased social withdrawal; frequent, intense pain symptoms; recurring and distressing thoughts regarding traumatic experiences; recurring and distressing dreams; persistent, bothersome thoughts, discomfort and awkwardness around others; panic episodes in public places; shortness of breath and dizziness without exertion; and gastrointestinal ("GI") upset. Tr. at 414-15. She indicated she had withdrawn socially to prevent panic attacks. Tr. at 415. She stated the following symptoms were made less intense by use of prescribed medications: extreme mood and energy fluctuations; pressure of speech; racing thoughts; episodes of poor judgment; fluctuations in quantity and quality of work; feelings of restlessness, agitation, and anger without provocation; extreme problems with attention and concentration; alternating periods of great optimism and pessimism; and moods interfering with productivity and interpersonal relationships. Id. Dr. Grace administered the Minnesota Multiphasic Personality Inventory, second edition ("MMPI-2") and interpreted Plaintiff's scores to be a valid reflection of her personality dynamics and emotional stability. Id. He stated the clinical scales revealed Plaintiff to be "profoundly depressed, severely anxious and in rather tenuous contact with reality." Id. He noted Plaintiff was "overwhelmed with problems, guilt-ridden and fe[lt] hopeless, helpless and inadequate." Id. He observed Plaintiff to be "extremely despondent, slowed in thought and action, lacking in energy, unable to concentrate, very distressed and [to] feel[] miserable." Id. He stated Plaintiff had "distanced herself physically and emotionally from others to avoid hurt and rejection," causing her to be "very withdrawn, alienated, feel[] misunderstood" and to not be "part of her social community." Id. He indicated Plaintiff was "an obsessional worrier who [was] quite tearful and extremely insecure with numerous phobias." Tr. at 415-16. He indicated Plaintiff was "emotionally unstable, bitter over her plight in life and prone to exercise poor judgment." Tr. at 416. He noted from a positive perspective that Plaintiff was empathic, considerate of others, had the propensity to be rather idealistic, and had the capacity to be realistic and responsible. Id. He concluded Plaintiff had "been handicapped psychiatrically, socially, physically and vocationally by her mother's abandonment of her at age 5, her father's untimely death at age 17, and a poor psychiatric and organic genetic endowment." Id. He assessed panic disorder, agoraphobia, posttraumatic stress disorder ("PTSD"), bipolar II disorder, borderline personality disorder, and schizoid personality disorder features. Tr. at 416-17. He noted a GAF score of 35. Id.
A GAF score of 31-40 indicates some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). DSM-IV-TR.
In a progress summary dated May 3, 2015, Mr. Platt noted Plaintiff had discontinued group therapy, but was attending individual therapy twice a month. Tr. at 424. He indicated Plaintiff was progressing toward goals, but needed to remain in treatment to prevent decompensation. Id. On June 3, 2015, Mr. Platt indicated Plaintiff was attending individual therapy twice a month and making progress toward her goals. Tr. at 452.
On June 23, 2015, Plaintiff denied significant side effects and indicated her medications had helped to stabilize her mood. Tr. at 451. Dr. Winter noted Plaintiff was mildly anxious and not very forthcoming, but was endorsing improvement. Id. He observed anxious mood and mild impairment to attention and concentration, but indicated no other abnormalities on mental status exam. Id. He assessed a GAF score of 60 and instructed Plaintiff to follow up in four months. Id.
On July 22, 2015, Plaintiff reported three to four hours of stiffness during the day, constant symptoms, and a pain level of eight. Tr. at 435. She complained of fatigue, weight gain, poor sleep, dry and red eyes, shortness of breath, nausea, diarrhea, constipation, reflux symptoms, and bruising. Id. She indicated she was engaging in yoga and pool exercises. Id. Dr. Patel noted kyphosis of the spine, multiple paraspinal pains, flat affect, and greater than 12 tender points, but stated Plaintiff had normal ROM, strength and tone in her bilateral upper and lower extremities. Tr. at 436. He prescribed Naltrexone 4.5 mg at bedtime and refilled Robaxin 500 mg and Tylenol with Codeine 300-30 mg. Tr. at 436-37.
On August 11, 2015, a second state agency consultant, Janet Telford-Tyler, Ph.D. ("Dr. Telford-Tyler"), completed a PRT form and mental RFC assessment. Tr. at 83-84, 87-89. She considered Listing 12.04 for affective disorders and assessed the following degrees of functional limitation: mild restriction of ADLs; moderate difficulties in maintaining social functioning; moderate difficulties in maintaining concentration, persistence, or pace; and no episodes of decompensation. Tr. at 84. She indicated on a mental RFC assessment that Plaintiff had moderately-limited abilities to maintain attention and concentration for extended periods; to complete a normal workday and workweek without interruptions from psychologically-based symptoms; to perform at a consistent pace without an unreasonable number and length of rest periods; and to interact appropriately with the general public. Tr. at 87-89. She stated Plaintiff was able to "understand, remember, and carry out simple and detailed instructions and to follow work related procedures with infrequent difficulty on complex tasks possible." Tr. at 89. She indicated Plaintiff could "maintain attention and perform at an acceptable consistent pace on simple and detailed tasks for 2 hour periods, over 8 hour work days and 40 hour work weeks with normal breaks and without interruption from psychologically based symptoms[,] but would have occasional difficulty with complex tasks." Id. She noted Plaintiff would be able to work "under ordinary supervision," "make simple work-related decisions," and "maintain regular attendance and punctuality." Id. She stated Plaintiff was "capable of relating appropriately on a casual basis with the general public[,] but would do better on tasks requiring minimal contact with the general public in order to avoid stress." Id. She indicated Plaintiff was capable of "accept[ing] direction and criticism from supervisors," "relat[ing] appropriately to co-workers without unduly distracting them or exhibiting behavioral extremes," "asking simple and detailed questions," "making requests for assistance," "adapt[ing] to routine changes in the work setting," "avoid[ing] normal hazards and tak[ing] appropriate precautions when needed," "setting realistic goals," and "making plans independently of others." Id.
On August 27, 2015, Dr. Winter authorized Plaintiff to attend weekly individual therapy. Tr. at 448.
On September 11, 2015, a second state agency medical consultant, Sannagai Brown, M.D. ("Dr. Brown"), assessed the following limitations on a physical RFC assessment: occasionally lifting and/or carrying 20 pounds; frequently lifting and/or carrying 10 pounds; standing and/or walking for about six hours in an eight-hour workday; sitting for about six hours in an eight-hour workday; occasionally climbing ramps and stairs; never climbing ladders, ropes, or scaffolds; frequently balancing, stooping, kneeling, crouching, and crawling; and avoiding even moderate exposure to hazards. Tr. at 85-87.
On November 17, 2015, Plaintiff indicated her symptoms had improved on medication. Tr. at 443. She expressed concern over drug interactions, and Dr. Winter found possible negative interactions between Latuda and her other medications. Id. Dr. Winter noted no abnormalities on mental status examination. Id.
On January 20, 2016, Plaintiff endorsed constant symptoms of polyarthritis with limited improvement in response to medical therapy. Tr. at 432. She indicated she was using medication and rest to improve her symptoms. Id. She reported her pain as an eight on a 10-point scale and complained of stiffness. Id. She endorsed the following additional symptoms: fatigue, poor sleep, dry eyes, cough, shortness of breath, chest pain, nausea, vomiting, diarrhea, and reflux symptoms. Tr. at 433. Plaintiff reported some relief with Tylenol with Codeine and Robaxin, but complained that Naltrexone caused nausea. Id. She endorsed pain in her left hip and right radial thumb following a recent fall. Id. Dr. Patel noted greater than 12 tender points, kyphosis in the spine, and multiple pains in the paraspinal region, but also observed Plaintiff to have normal range of motion ("ROM"), strength, and tone in the bilateral upper and lower extremities. Id. He administered Lidocaine and Methyl Prednisolone SR injections to treat left trochanteric bursitis and right DeQuervain's tenosynovitis. Id. He recommended Plaintiff engage in regular exercise and continued her prescriptions for Robaxin and Tylenol with Codeine. Tr. at 434.
On January 25, 2016, Plaintiff presented to gastroenterologist Peter J. Kobes, M.D. ("Dr. Kobes"), for fecal incontinence, left lower quadrant pain, nausea, vomiting, diarrhea, constipation, and rectal pain. Tr. at 459. She reported up to six episodes of frequency diarrhea per day on four days per week, often followed by several days of constipation. Id. Dr. Kobes recommended a high fiber diet and full colonic evaluation. Tr. at 461. He prescribed Levsin 0.125 mg. Tr. at 462.
On January 26, 2016, Plaintiff reported anxiety, depression, irritability, and sleep disturbance. Tr. at 440. She complained of more frequent and severe depressive episodes. Tr. at 441. She stated she was experiencing nightmares and was only sleeping for two hours in a 24-hour period. Id. Kristal T. Tribble, R.N. ("Nurse Tribble"), notified Dr. Winter and reminded Plaintiff that she had an upcoming visit scheduled with him. Id.
In a progress summary dated February 2, 2016, Mr. Platt indicated Plaintiff was scheduled for weekly group therapy and twice monthly individual therapy. Tr. at 439. He stated Plaintiff was participating actively in group therapy sessions, but considered coping mechanisms to be minimally effective. Id.
On March 8, 2016, Plaintiff complained that Latuda caused increased anxiety. Tr. at 438. Dr. Winter observed Plaintiff to demonstrate akathisia, fidgetiness, and anxiety. Id. He noted the following findings on mental status examination: cooperative attitude; calm behavior; intact associations; logical/goal-directed thought process; no suicidal or homicidal ideation; depressed and anxious mood; appropriate affect; mildly impaired attention and concentration; and fair insight and judgment. Id. Dr. Winter discontinued Latuda and increased Lamictal to 250 mg daily. Id.
Plaintiff participated and interacted well with others during group therapy sessions on April 7 and 21, 2016. Tr. at 529-30.
On May 4, 2016, Plaintiff complained of abdominal pain and cramping, nausea, vomiting, diarrhea, and occasional bowel incontinence. Tr. at 549. She reported weight gain, frequent urination, and excessive thirst and requested that her blood sugar be checked. Id. Tiffany Nobles, FNP-BC ("N.P. Nobles"), noted tenderness to palpation of Plaintiff's abdomen, but indicated no other abnormalities on physical exam. Tr at 549-50. She encouraged Plaintiff to follow up with her GI specialist for irritable bowel syndrome ("IBS") with diarrhea, referred her for lab work, counseled her on diet and exercise, and advised her to lose weight and to take a daily multivitamin. Tr. at 550.
On May 6, 2016, Plaintiff reported to Mr. Platt that her visit with N.P. Nobles had been unpleasant because N.P. Nobles was hateful and did not spend adequate time with her. Tr. at 526. Mr. Platt affirmed Plaintiff's feelings and noted her accomplishment in not reacting drastically to N.P. Nobles. Id.
On June 7, 2016, Plaintiff complained of poor sleep, pain, stomach problems, and headache. Tr. at 524. She discussed conflict in her relationship. Id. Mr. Platt encouraged Plaintiff to avoid conflict. Id.
On June 9, 2016, Jessica McCraw, MA, LMPT ("Ms. McCraw"), observed Plaintiff to be engaged and to laugh with others during group therapy. Tr. at 523. She stated Plaintiff continued to "be dealing with a lot of pain and health p[roblems]." Id. She indicated Plaintiff's depression might improve if her health problems were better managed. Id.
On June 21, 2016, Plaintiff complained of insecurities regarding her relationship. Tr. at 522. Mr. Platt observed Plaintiff to be a little less worried than during the prior visit. Id.
On June 23, 2016, Ms. McCraw observed Plaintiff to be engaged in the group and to laugh during the session. Tr. at 521. Plaintiff reported going out to dinner and a movie. Id. She endorsed problems with pain, but no major mental health problems. Id.
On June 29, 2016, Plaintiff followed up with Dr. Kobes for abdominal pain and diarrhea. Tr. at 455. She reported frequent pain in her left upper quadrant, occasional pain in her lower abdomen, and watery diarrhea occurring between three and six times per day. Id. She stated Levsin had provided no benefit. Id. Dr. Kobes assessed chronic diarrhea with probable IBS and prescribed Bentyl. Tr. at 457.
Ms. McCraw observed Plaintiff to be engaged and to appear well during a group therapy session on June 30, 2016. Tr. at 520. Plaintiff discussed a negative encounter with her mother and processed her reaction with members of the group. Id.
On July 5, 2016, Plaintiff complained of sleep disturbance, nightmares, and weird dreams. Tr. at 519. Mr. Platt noted Plaintiff was reflecting on prior choices and losses and felt confused and unable to focus on reading and math. Id.
On July 7, 2016, Ms. McCraw noted Plaintiff had some difficulty completing the painting assignment "because of her hands." Tr. at 518. She instructed Plaintiff on a relaxation technique to address her reports of sleep disturbance. Id.
On July 13, 2016, Plaintiff reported relief from the injections Dr. Patel administered during the prior visit. Tr. at 468. She complained of left hip pain, migraines, and pain and stiffness in her neck that was exacerbated by turning her head. Id. She endorsed symptoms that included fatigue, red and dry eyes, shortness of breath, constipation, diarrhea, nausea, vomiting, arthralgias, myalgias, sleep disturbance, and three hours of morning stiffness. Tr. at 468-69. Dr. Patel noted the following abnormalities on physical exam: pain and stiffness in the cervical spine, paraspinal pain and tenderness, pain in the left trochanteric bursa, and greater than 12 tender points. Tr. at 469. He continued Plaintiff's prescriptions for Robaxin and Tylenol with Codeine and administered a Depo-Medrol injection to her left trochanteric bursa. Tr. at 470.
On July 14, 2016, Ms. McCraw noted Plaintiff participated less and was more quiet than she had been during prior group sessions. Tr. at 517. A medication monitoring form reflects symptoms of anxiety, decreased appetite, depression, flight of ideas, hyperactivity/inattention, irritability, paranoia, thought disorganization, sleep disturbance, and being hyperverbal. Tr. at 516. Plaintiff denied side effects from medications. Id.
On July 22, 2016, Mr. Platt indicated Plaintiff was "making a little progress overall." Tr. at 515. Plaintiff reported benefits from breathing and visual exercises and group therapy. Id.
On July 28, 2016, Plaintiff continued to report depressive symptoms. Tr. at 514. Ms. McCraw observed Plaintiff to be engaged and to interact comfortably with the other participants during the group therapy session. Id.
On August 5, 2016, Plaintiff complained of pain and GI problems. Tr. at 512. She discussed with Mr. Platt conflicts in her relationship. Id. She reported difficulty reading, including problems with retaining information and words switching around. Id.
Plaintiff followed up with Dr. Winter on August 9, 2016. Tr. at 511. She reported periods of insomnia followed by periods of sleeping too much and not getting out of bed. Id. Dr. Winter noted Plaintiff's sleep disturbance was likely caused by her many physical conditions. Id. He observed Plaintiff's mental status to be normal, aside from depressed, anxious, and apathetic mood and fair insight and judgment. Id. He refilled Plaintiff's medications. Id.
Plaintiff presented for a group therapy session on August 11, 2016. Tr. at 510. Ms. McCraw observed Plaintiff did not look well. Id. She noted Plaintiff's GI problems had been exacerbated over the prior week. Id.
During an individual psychotherapy session on August 19, 2016, Plaintiff discussed a history of conflict with family members and in relationships. Tr. at 509. Mr. Platt observed Plaintiff to be in a lot of pain. Id. He noted Plaintiff was able to see different choices and expressed some regret over prior decisions. Id.
Ms. McCraw observed Plaintiff to be engaged and to participate well in group therapy on August 25, 2016. Tr. at 507. She noted Plaintiff was experiencing health problems, but had recently pushed herself to go out to dinner. Id. Ms. McCraw observed Plaintiff to be engaged and attentive, but quiet and reserved during a group therapy session on September 1, 2016. Tr. at 506.
On September 7, 2016, Plaintiff complained of conflict within her relationship and household, and Mr. Platt suggested strategies to stimulate her brain, including cooking and reading. Tr. at 505. Mr. Platt encouraged Plaintiff to listen to others to allow them to vent, but to avoid commenting on their situations. Id.
On September 8, 2016, Ms. McCraw noted Plaintiff continued to be in pain, "which really seems to contribute to her depression and lack of activity." Tr. at 504. She stated Plaintiff was quiet, but remained engaged during the session. Id. Plaintiff reported conflict within her household, but indicated she attempted to avoid it. Id.
Ms. McCraw observed Plaintiff to actively participate in a group therapy session on September 15, 2016. Tr. at 503. She indicated Plaintiff appeared tearful and sad when discussing conflict within her household. Id.
Plaintiff attended individual psychotherapy with Mr. Platt on September 20, 2016. Tr. at 502. Mr. Platt noted Plaintiff found it difficult to focus during the session, after interacting with a child who was misbehaving in the lobby. Id. Plaintiff complained of conflict within her household and indicated she was spending much of her time in her bedroom. Id. On October 5, 2016, Plaintiff reported recent illness and conflict with a member of her household, and Mr. Platt suggested coping strategies. Tr. at 501.
On October 6, 2016, Ms. McCraw indicated Plaintiff participated well in group therapy, but that her physical problems were taking a toll on her mental health. Tr. at 500. She observed Plaintiff to be more engaged and lively on October 13, 2016. Tr. at 499. On October 20, 2016, Ms. McCraw noted Plaintiff was engaged in the group therapy session, but appeared stressed and depressed. Tr. at 498. On October 27, 2016, Ms. McCraw noted Plaintiff looked well and engaged in the session, but seemed to demonstrate no improvement in her depression. Tr. at 496.
Plaintiff attended individual psychotherapy sessions with Mr. Platt on October 28 and November 8, 17, and 21, 2016. Tr. at 488-91, 495. She reported various stressors, and Mr. Platt suggested coping strategies. Id.
On November 29, 2016, Dr. Winter observed Plaintiff to "present[] as fragile emotionally." Tr. at 487. He noted Plaintiff's mood was depressed and anxious, her affect was constricted, her judgment and insight were fair, and her mental status was otherwise normal. Id.
During a group therapy session on December 8, 2016, Ms. McCraw noted Plaintiff appeared engaged and seemed less depressed. Tr. at 486. Plaintiff attended individual psychotherapy sessions on December 9, 15, 21, and 29, 2017, and January 6, 2017. Tr. at 480-85. Mr. Platt encouraged Plaintiff to use coping strategies to deal with various stressors. Id.
On January 11, 2017, Plaintiff reported pain throughout her body that had begun several days prior. Tr. at 464. She complained of a headache and acute pain in her bilateral shoulders that rendered her unable to lift her left shoulder. Id. She reported fatigue, shortness of breath, diarrhea, nausea, sleep disturbance, and three hours of daily stiffness. Tr. at 464-65. Dr. Patel noted the following abnormalities on physical exam: pain and stiffness in the cervical spine, paraspinal tenderness, shoulder impingement, positive empty can test, and greater than 12 tender points. Tr. at 465. He administered Depo-Medrol injections to Plaintiff's bilateral shoulder joints and instructed her to engage in regular exercise and to continue to use Tylenol with Codeine for breakthrough pain. Tr. at 465-66.
On January 20, 2017, Mr. Platt indicated Plaintiff should continue with twice monthly individual therapy, but may require additional sessions because her group therapy sessions were not meeting again until March. Tr. at 476. Plaintiff attended individual psychotherapy sessions with Mr. Platt on January 20, February 3, and February 14, 2017. Tr. at 477-79.
On March 14, 2017, Plaintiff reported some bad days, but indicated her medication regimen was generally working well. Tr. at 540. Dr. Winter observed Plaintiff to appear mildly depressed and anxious, but to accept her mood swings and depression without an urgent need to act. Id.
On March 21, 2017, Plaintiff reported ongoing nausea and dizziness for several years that had worsened over the prior month. Tr. at 546. She complained of alternating diarrhea and constipation. Id. Sunitha Nagubilli, M.D. ("Dr. Nagubilli"), noted no abnormalities on physical exam. Tr. at 546-47. She indicated Plaintiff's prior hemoglobin A1c level suggested prediabetes and referred her for lab work. Tr. at 547. She prescribed Meclizine for dizziness and referred Plaintiff to an ear, nose, and throat specialist. Id. She prescribed Zofran for nausea and stated it was likely a side effect of Plaintiff's psychiatric medications. Id.
Plaintiff presented to Nicole Mount, FNP-BC ("N.P. Mount"), for evaluation of dizziness, headache, and allergies on April 11, 2017. Tr. at 564. She reported a history of migraines and dizziness that had recently worsened. Id. An audiogram revealed borderline/mild high-frequency hearing loss bilaterally. Tr. at 565. N.P. Mount recommended Plaintiff use an over-the-counter allergy medication and attempt Cawthorne exercises at home for symptoms of vertigo. Tr. at 565-66. She stated Chiari malformation might be contributing to Plaintiff's dizziness and headaches. Tr. at 566. She advised Plaintiff to follow up with her neurologist. Id.
Plaintiff reported increased depression, but denied suicidal ideation on May 5, 2017. Tr. at 538. Dr. Winter noted Plaintiff experienced fainting episodes and regular severe headaches that were likely caused by Chiari malformation. Id. Plaintiff denied suicidal ideation. Id. Dr. Winter observed Plaintiff to demonstrate a constricted affect and depressed mood. Id. He continued Plaintiff's prescriptions for Lithium Carbonate and Venlafaxine, increased Lamictal, and started Wellbutrin SR. Id. He acknowledged he had prescribed two mood stabilizers and two antidepressants, but stated he would likely discontinue one antidepressant during the next visit. Id.
On May 9, 2017, Plaintiff reported worsened headaches and no relief with Cawthorne exercises. Tr. at 561. N.P. Mount referred Plaintiff for videonystagmography ("VNG") testing to determine the etiology of her vertigo. Tr. at 563.
Plaintiff underwent VNG testing on May 15, 2017. Tr. at 569-76. It showed both central nervous and peripheral vestibular abnormalities that appeared to be contributing to Plaintiff's symptoms, including significantly reduced ocular function. Tr. at 569. The doctor who administered the test recommended balance training therapy, vestibular rehabilitation, and magnetic resonance imaging ("MRI") or neurological consultation. Id.
On May 17, 2017, Dr. Patel indicated Plaintiff had lost weight as a result of using Lithium. Tr. at 555. Plaintiff stated her last injection had reduced her pain for fewer than two weeks. Id. She reported two to three hours of stiffness per day, fatigue, unexpected weight change, shortness of breath, diarrhea, nausea, vomiting, arthralgias, back pain, myalgias, neck pain, and sleep disturbance. Tr. at 555-56. On physical exam, Dr. Patel noted cervical pain, paraspinal tenderness, bilateral shoulder impingement, shoulder pain, multiple paraspinal pains, and greater than 12 tender points. Tr. at 556. He refilled Tylenol with Codeine for breakthrough pain, encouraged Plaintiff to engage in regular exercise, and recommended she try over-the-counter Aleve, topical medication, and Tumeric for shoulder pain. Tr. at 557.
On May 30, 2017, Plaintiff reported no change in her vertigo, continued ringing in her ears, and worsening and more frequent headaches. Tr. at 558. N.P. Mount discussed the VNG test results with Plaintiff and recommended vestibular therapy for strength and stability. Tr. at 559. She stated Plaintiff's headaches were possibly related to Chiari malformation and her tinnitus was mostly likely related to the condition. Id. She referred Plaintiff for balance therapy and to a neurologist for further evaluation. Id.
Plaintiff presented to Dr. Grace for a follow up psychological disability evaluation in or around May 2017. Tr. at 542-45. Dr. Grace reviewed Plaintiff's mental health treatment notes from November 14, 2014, through May 5, 2017. Tr. at 542. He conducted an interview and performed evaluations. Id. Plaintiff reported multiple symptoms of major depressive disorder, generalized anxiety disorder, PTSD, borderline personality disorder, and bipolar disorder. Tr. at 543-44. Dr. Grace observed little difference between Plaintiff's 2015 and 2017 personality test results, but noted more severe depression and less extreme anxiety with somewhat less obsessional thinking. Tr. at 544. He assessed a GAF score of 30. Tr. at 545. He opined Plaintiff was "unable to function adequately in any form of vocational setting involving any task that requires sustained effort or daily attendance." Id.
A GAF score of 21-30 reflects behavior that is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends). DSM-IV-TR.
Plaintiff presented to neurologist Robert A. Ringel, M.D. ("Dr. Ringel"), on June 8, 2017. Tr. at 581-82. She indicated she had been diagnosed with Chiari malformation by Dr. Zortea in 2013. Tr. at 581. She complained of intermittent vertigo and headaches associated with nausea and light sensitivity. Id. She reported fatigue, headache, loss of appetite, blurred vision, tinnitus, decreased hearing, shortness of breath with exertion, abdominal pain, diarrhea, constipation, nausea, incontinence, urgency, joint pain and swelling, neck pain, stiffness, anxiety, depression, intolerance of cold and heat, excessive thirst, and frequent urination. Tr. at 581-82. Dr. Ringel observed a coarse, irregular tremor in Plaintiff's hands, subtle spasticity upon ambulating, and a mildly broad-based gait. Tr. at 582. He stated the clinical findings were consistent with gait instability, tremor, and headaches and could be consistent with Chiari malformation. Id. He referred Plaintiff for an MRI of the brain and lab work to determine her Lithium level. Id.
On June 13, 2017, an MRI of Plaintiff's brain showed increased fluid attenuated inversion recovery ("FLAIR") and T2 signal in the bilateral periventricular white matter consistent with chronic migraine headaches, but no evidence of Chiari malformation. Tr. at 579.
Plaintiff followed up with Dr. Ringel on June 19, 2017. Tr. at 577-78. Dr. Ringel diagnosed migraine without aura and prescribed Corgard 10 mg. Tr. at 578. He instructed Plaintiff to follow up in three weeks. Id.
C. The Administrative Proceedings
1. The Administrative Hearing
a. Plaintiff's Testimony
At the hearing on June 29, 2017, Plaintiff testified she stopped working in December 2013 because she was having difficulty comprehending information. Tr. at 42. She indicated she had been absent frequently because of headaches and medical visits related to a hip fracture. Id. She stated she was having difficulty learning a new computer system and did not expect she would be able to keep up with increased customer volume. Tr. at 42-43. She indicated she resigned from the job with the expectation that she would find another job, but ultimately did not return to work because her impairments worsened. Tr. at 43.
Plaintiff testified Dr. Patel was treating her for fibromyalgia and chronic pain. Tr. at 46. She endorsed daily pain in her legs, neck, shoulders, and arms. Id. She stated the pain in her legs was exacerbated by standing or walking too much. Tr. at 47. She indicated her legs felt numb and "[went] to sleep" at times. Id. She stated she was unsteady on her feet because of numbness and vertigo. Id.
Plaintiff stated Dr. Ringel treated her migraines and had recently changed her medication. Tr. at. 46. She indicated Dr. Ringel also prescribed Promethazine for nausea. Tr. at 46-47. She stated she experienced daily nausea and some fecal incontinence. Tr. at 47, 49. She indicated she experienced migraines a few times a week. Tr. at 49.
Plaintiff testified she first sought treatment from a psychiatrist in 2005 and was hospitalized for psychiatric treatment in 2014. Tr. at 44-45. She indicated she saw her psychiatrist every three months and attended weekly group sessions and biweekly individual therapy sessions. Tr. at 50. She stated her bipolar disorder was characterized mainly by depression. Id. She indicated the depression made her feel useless and guilty. Tr. at 50-51. She stated her depression had improved at times, but had never gone away. Tr. at 51. Plaintiff testified she experienced anxiety and panic attacks. Id. She stated she had difficulty being around others and had experienced a panic attack at the mental health center. Id. She described her panic attacks as involving shaking, crying, and difficulty breathing. Tr. at 52. She indicated she controlled her panic attacks by avoiding others. Id. She stated she spent most of her time in her bedroom. Id. She denied watching television and indicated she had little interest and her concentration was too impaired for her to follow a television show. Id. She indicated she had difficulty following her therapist's recommendation to read for 30 minutes a day because she was unable to concentrate. Tr. at 52-53. She stated she cried every day. Tr. at 53.
Plaintiff testified she was 5'3" tall and weighed 155 pounds. Tr. at 35. She indicated she had lost 31 pounds since October 2016. Tr. at 35-36. She stated her appetite had been affected by depression, nausea, and migraines. Tr. at 36. She indicated she did not eat when she felt ill. Tr. at 54.
Plaintiff testified she lived with her best friend and the friend's parents. Tr. at 36. She confirmed that her friend had been renovating a house for several years with the expectation that the two of them would move into it. Tr. at 36-37. Plaintiff denied cooking, performing household chores, and engaging in any projects in the house her friend was renovating. Tr. at 37, 54. She indicated she only left her home to attend medical appointments. Tr. at 55. Plaintiff admitted she had a driver's license, but indicated she had not driven in two-and-a-half years. Tr. at 37. She stated her ability to drive was compromised by a history of hip fracture and anxiety. Id. She testified her friend assisted her by paying for her medical treatment, transporting her to appointments, and reminding her to bathe, eat, dress, and take her medications. Tr. at 48, 56. She denied having health insurance. Tr. at 48.
b. Vocational Expert Testimony
Vocational Expert ("VE") Mark Leaptrot reviewed the record and testified at the hearing. Tr. at 57-61. The VE categorized Plaintiff's PRW as an accounting clerk, Dictionary of Occupational Titles ("DOT") number 216.482-010, as sedentary with a specific vocational preparation ("SVP") of five; a tax auditor, DOT number 160.167-038, as light with an SVP of eight; a court clerk, DOT number 243.362-010, as sedentary with an SVP of six; and a loan clerk, DOT number 205.367-022, as sedentary with an SVP of four. Tr. at 58. The ALJ described a hypothetical individual of Plaintiff's vocational profile who could perform work at the light exertion level with the following additional limitations: occasionally climbing ramps and stairs; never climbing ladders, ropes, or scaffolds; frequently balancing, stooping, kneeling, crouching, and crawling; avoiding hazards such as unprotected heights and dangerous machinery. Id. He further indicated the hypothetical individual would be limited to occasional interaction with the public and simple, routine tasks, with time off-task to be accommodated by normal work breaks. Tr. at 58-59. The VE testified the hypothetical individual would be unable to perform Plaintiff's PRW. Tr. at 59. The ALJ asked whether there were any other jobs in the regional or national economy that the hypothetical person could perform. Id. The VE identified jobs at the light exertional level with an SVP of two as an office helper, DOT number 239.567-010, with 116,000 positions in the national economy; a routing clerk, DOT number 222.687-022, with 41,600 positions in the national economy; and a shipping and receiving weigher, DOT number 222.387-074, with 85,000 positions in the national economy. Id.
The ALJ next asked the VE to consider a hypothetical individual of Plaintiff's vocational profile who was limited to work at the sedentary exertional level with the restrictions described in the first hypothetical question and the following additional restrictions: occasionally balancing, stooping, kneeling, crouching, and crawling; occasionally interacting with coworkers and supervisors; and able to tolerate few changes in the workplace. Id. The ALJ asked if the hypothetical individual would be able to perform any jobs. Tr. at 60. The VE identified sedentary jobs with an SVP of two as a document preparer, DOT number 249.587-018, with 44,900 positions in the national economy; an addresser, DOT number 209.587-010, with 17,900 positions in the national economy; and an order clerk, DOT number 209.567-014, with 35,000 positions in the national economy. Id.
For a third scenario, the ALJ described a hypothetical individual of Plaintiff's vocational profile who would either be absent from work three times per month or would be unable to maintain concentration and persistence for two-hour periods on a sustained basis. Id. He asked if the individual would be able to engage in competitive employment with either limitation. Id. The VE stated either condition would rule out gainful employment. Tr. at 60-61.
2. The ALJ's Findings
In his decision dated November 22, 2017, the ALJ made the following findings of fact and conclusions of law:
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2018.
2. The claimant has not engaged in substantial gainful activity since December 20, 2013, the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: fibromyalgia and bipolar disorder (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, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except that she can [engage in] occasional climbing of ramps and stairs; never climbing ladders, ropes, or scaffolds; frequent balancing, stooping, kneeling, crouching, and crawling; and no hazards such as unprotected heights and dangerous moving machinery. She can perform simple routine tasks; time off task could be accommodated by normal breaks; and she can have occasional interaction with the public.Tr. at 14-23. II. Discussion
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on August 17, 1975 and was 38 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563).
8. The claimant has at least a high school education and is able to communicate in English (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 December 20, 2013, through the date of this decision (20 CFR 404.1520(g)).
Plaintiff alleges the Commissioner erred for the following reasons:
1) substantial evidence does not support the ALJ's evaluation of Plaintiff's subjective symptoms;
2) the ALJ did not properly determine Plaintiff's RFC; and
3) the ALJ did not adequately evaluate Plaintiff's mental RFC;.
The Commissioner counters that substantial evidence supports the ALJ's findings and that the ALJ committed no legal error in her decision.
A. Legal Framework
1. The Commissioner's Determination-of-Disability Process
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). Section 423(d)(1)(A) defines disability 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 at least 12 consecutive months.42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983) (discussing considerations and noting "need for efficiency" in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity; (2) whether she has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents her from doing substantial gainful employment. See 20 C.F.R. § 404.1520. These considerations are sometimes referred to as the "five steps" of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).
The Commissioner's regulations include an extensive list of impairments ("the Listings" or "Listed impairments") the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. § 404.1525. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, she will be found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that her impairments match several specific criteria or are "at least equal in severity and duration to [those] criteria." 20 C.F.R. § 404.1526; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's past relevant work to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. § 404.1520(h).
A claimant is not disabled within the meaning of the Act if she can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, § 404.1520(a), (b); Social Security Ruling ("SSR") 82-62 (1982). The claimant bears the burden of establishing her inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the regional economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that she is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of "any final decision of the Commissioner [] made after a hearing to which he was a party." 42 U.S.C. § 405(g). The scope of that federal court review is narrowly-tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to "try these cases de novo or resolve mere conflicts in the evidence." Vitek v. Finch, 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed "even should the court disagree with such decision." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
B. Analysis
1. Evaluation of Symptoms
Plaintiff argues substantial evidence does not support the ALJ's evaluation of her subjective symptoms. [ECF No. 13 at 13-15]. She maintains the ALJ did not consider the limiting effect of migraines. Id. at 14. She contends the ALJ gave only a few flawed reasons for discounting her testimony regarding pain-related limitations. Id. at 15.
The Commissioner argues substantial evidence supports the ALJ's finding that Plaintiff's statements were not supported by the objective medical evidence and her reported activities. [ECF No. 15 at 12]. He states substantial evidence further supports the ALJ's consideration of Plaintiff's headaches in that Plaintiff sought limited treatment and had normal neurological signs. Id. at 14 n.2. He maintains the ALJ found Plaintiff's course of treatment and evidence of its effectiveness to be inconsistent with the symptoms she alleged. Id. at 13-14. He further contends the ALJ cited objective evidence as being inconsistent with Plaintiff's subjective statements. Id. at 14. He indicates the ALJ also cited Plaintiff's ADLs as being inconsistent with her allegations. Id. at 15.
After having determined that the claimant's medical signs or laboratory findings support the existence of medically-determinable impairments that could reasonably be expected to produce her alleged symptoms, the ALJ should evaluate the intensity and persistence of those symptoms to determine how they affect the claimant's capacity for work. 20 C.F.R. § 404.1529(a). The ALJ must consider "all the available evidence, including [the claimant's] medical history, the medical signs and laboratory findings, and statements about how [the claimant's] symptoms affect [her]." Id. "Because symptoms sometimes suggest a greater severity of impairment than can be shown by objective medical evidence alone," the ALJ is to "carefully consider any other information" about the claimant's symptoms. 20 C.F.R. § 404.1529(c)(3). The ALJ must explicitly consider a claimant's "statements about the intensity, persistence, and limiting effects of symptoms" and "evaluate whether the statements are consistent with objective medical evidence and other evidence" in the case record. SSR 16-3p, 2016 WL 1119029 at *6. This may require the ALJ to compare the claimant's statements to information the claimant provided to her medical sources regarding the onset, character, and location of symptoms; factors that precipitate and aggravate symptoms; the frequency and duration of symptoms; change in symptoms (e.g., whether worsening, improving, or static); and ADLs. Id. The ALJ should "consider whether there are any inconsistencies in the evidence and the extent to which there any are conflicts between [the claimant's] statements and the rest of the evidence." 20 C.F.R. § 404.1529(c)(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 [he] evaluated the individual's symptoms." SSR 16-3p, 2016 WL 1119029 at *9.
The ALJ found Plaintiff's medically-determinable impairments could reasonably be expected to produce the symptoms she alleged, but her "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." Tr. at 17.
a. Migraines
Plaintiff testified her ability to work was limited by migraines that occurred a few times per week. Tr. at 49. The ALJ found Plaintiff's headaches to be a non-severe impairment. Tr. at 14. He stated Plaintiff "reported a history of migraines at a May 2017 office visit, but the record includes no additional treatment or significant complaints about headaches." Tr. at 14-15.
The ALJ's conclusion regarding Plaintiff's headaches is not supported by the record, which reflects Plaintiff's numerous complaints of headaches or migraines beginning in June 2016. See Tr. at 464, 468, 524, 538, 558, 561, 564, 581. Dr. Ringel diagnosed migraine without aura in June 2017, after an MRI of Plaintiff's brain showed white matter changes consistent with chronic migraines. See Tr. at 578, 579. The ALJ did not comply with the provisions of C.F.R. § 404.1529(a) in that he did not consider all the available evidence in evaluating Plaintiff's migraines.
b. Fibromyalgia
In considering the limiting effects of fibromyalgia, the ALJ noted "the record includes overwhelmingly normal musculoskeletal exams, with only conservative treatment and pain management." Tr. at 17. He summarized treatment notes that reflected normal neurological and musculoskeletal exams. Tr. at 17-18. "Based on [Plaintiff's] musculoskeletal pain from fibromyalgia," the ALJ limited her "to work at the light level . . . that involve[d] no more than occasionally climbing of ramps and stairs; never climbing ladders, ropes, or scaffolds; frequent balancing, stooping, kneeling, crouching, and crawling; and no hazards such as unprotected heights and dangerous moving machinery" Id.
The ALJ seems to have rejected Plaintiff's subjective descriptions of her symptoms and their limiting effects because he found her complaints to be unsupported by the objective evidence. In Lewis v. Berryhill, 858 F.3d 858, 866 (4th Cir. 2017), the Fourth Circuit held that "the ALJ's determination that objective evidence was required to support [the plaintiff's] evidence of pain intensity improperly increased her burden of proof." It noted that a claimant's "subjective evidence of pain intensity cannot be discounted solely based on objective medical findings." Id. Relevant to cases involving a severe impairment of fibromyalgia, in Smith v. Colvin, C/A No. 1:14-4400-RBH, 2016 WL 1089302, at *8 (D.S.C. Mar. 21, 2016), this court explained that "because of the subjective nature of fibromyalgia," it was inappropriate for the ALJ to rely "exclusively on the objective medical evidence—namely 'musculoskeletal and neurological examinations'—to evaluate [the plaintiff's] fibromyalgia as it related to her residual functional capacity."
The ALJ did not consider observations and statements from Plaintiff's medical providers about how her symptoms affected her, as required by 20 C.F.R. § 404.1529(a). Ms. McCraw and Mr. Platt observed that Plaintiff appeared to be in pain during visits and indicated her pain exacerbated her psychological problems. Tr. at 479, 504, 509, 523. Dr. Patel indicated Plaintiff's bipolar medications and history of overdose limited his ability to prescribe medications to treat her pain. See Tr. at 392, 398, 400, 434, 436, 465, 470, 557. He stated fibromyalgia had caused a decline in Plaintiff's cognitive functioning. See Tr. at 393, 398, 400, 433, 436, 465, 469, 556. Although the ALJ cited evidence of normal motor function, muscle tone, muscle strength, ROM, gait, and station (Tr. at 17-18), he ignored Dr. Patel's examination findings of greater than 12 tender points, kyphosis of the spine, paraspinal tenderness and pain, stiffness, and shoulder impingement. Tr. at 392-93, 395-96, 397-98, 400, 433, 436, 465, 469, 556.
The ALJ's decision does not reflect his comparison of Plaintiff's statements about the intensity, persistence, and limiting effects of fibromyalgia-related symptoms to information she provided to her medical sources regarding her pain and its effects, as required by SSR 16-3p. Plaintiff frequently reported fibromyalgia-related symptoms including prolonged periods of stiffness, fatigue, sleep disturbance, muscle tenderness, and widespread pain. See Tr. at 392, 395, 397, 432-33, 435, 464-65, 468-69, 521, 523, 555-56, 581-82. She typically rated her pain between 7 and 8.5 on a 10-point scale during visits with Dr. Patel. Tr. at 392, 395, 432, 435, 464, 556. She reported her pain limited her ability to engage in activities. See Tr. at 504, 507, 521.
In light of the foregoing, the undersigned recommends the court find the ALJ did not adequately consider all the relevant evidence in evaluating Plaintiff's statements regarding the limiting effects of fibromyalgia.
2. Combined Effect of Impairments and Ability to Perform Light Work
Plaintiff argues the ALJ assessed an RFC that did not account for all her functional limitations. [ECF No. 13 at 16]. She maintains the ALJ did not consider the combined effect of her impairments. Id. at 17. She contends the ALJ failed to explain how the evidence supported a finding that she could perform light work. Id. at 17-18.
The Commissioner argues the ALJ's RFC assessment was supported by and consistent with the evidence. [ECF No. 15 at 16]. He maintains the ALJ evaluated Plaintiff's subjective complaints, her conservative treatment, the objective findings, her ADLs, and the medical opinions in assessing the RFC for light work. Id. at 17.
ALJs must assess a claimant's RFC based on all the relevant evidence in the case record and account for all the claimant's medically-determinable impairments. See 20 C.F.R. § 404.1545(a). The ALJ must include as part of the RFC assessment a narrative discussion describing how all the relevant evidence in the case record supports each conclusion and must cite "specific medical facts (e.g., laboratory findings) and non-medical evidence (e.g., daily activities, observations)." SSR 96-8p, 1996 WL 374184 at *7 (1996). The ALJ must explain how any material inconsistencies or ambiguities in the record were resolved. Id. at *7.
When a claimant has multiple impairments, the statutory and regulatory scheme for making disability determinations, as interpreted by the Fourth Circuit, requires that the ALJ consider the combined effect of all those impairments in determining the claimant's RFC and her disability status. See Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989); see also Saxon v. Astrue, 662 F. Supp. 2d 471, 479 (D.S.C. 2009) (collecting cases in which courts in this District have reiterated the importance of the ALJ's explaining how he evaluated the combined effects of a claimant's impairments). The ALJ must "consider the combined effect of a claimant's impairments and not fragmentize them." Id.
Absent evidence to the contrary, the court should accept the ALJ's assertion that he has considered the combined effect of the claimant's impairments. See Reid v. Commissioner of Social Sec., 769 F.3d 861, 865 (4th Cir. 2014); see also Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005) ("[O]ur general practice, which we see no reason to depart from here, is to take a lower tribunal at its word when it declares that it has considered a matter."). The Fourth Circuit has declined to elaborate on what serves as adequate explanation of the combined effect of a claimant's impairments. See Cox v. Colvin, No. 9:13-2666-RBH, 2015 WL 1519763, at *6 (D.S.C. Mar. 31, 2015); Latten-Reinhardt v. Astrue, No. 9:11-881-RBH, 2012 WL 4051852, at *4 (D.S.C. Sept. 13, 2012). However, it has specified that "the adequacy requirement of Walkeris met if it is clear from the decision as a whole that the Commissioner considered the combined effect of a claimant's impairments." Brown v. Astrue, C/A No. 0:10-CV-1584-RBH, 2012 WL 3716792, at *6 (D.S.C. Aug. 28, 2012), citing Green v. Chater, 64 F.3d 657, 1995 WL 478032, at *3 (4th Cir. 1995)).
"[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." Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015), citing Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013).
The ALJ wrote the following: "As required by SSR 96-8p, the residual functional capacity has been assessed based on all the evidence with consideration of the limitations and restrictions imposed by the combined effects of all the claimant's medical impairments." Tr. at 16.
Despite this language, the ALJ proceeded to fragmentize Plaintiff's impairments by specifically stating that he imposed some restrictions in the RFC assessment based on fibromyalgia and other restrictions based on bipolar disorder. See Tr. at 21 ("The light limitation with supporting postural restrictions in the residual functional capacity is supported by the overwhelmingly normal physical exams that showed a normal gait and station and a normal range of motion, muscle tone, and strength (Exhibits 13F/1, 6, 14; 16F/12, 36; 17F/1, 3). The residual functional capacity includes mental health restrictions, specifically limiting the claimant to unskilled work, or simple routine tasks, as well as occasional interaction with the public, which is supported by her history of unremarkable mental status exams and occasional depressed or anxious observed mood (Exhibits 6F-10F, as discussed above).").
The record contains evidence that suggests Plaintiff's physical problems exacerbated her mental problems. See Tr. at 479, 504, 509, 523. In light of this evidence and the ALJ's failure to address it, his compartmentalized discussion of Plaintiff's physical and mental limitations does not adequately account for the combined effect of her impairments.
Furthermore, the ALJ did not account for all of Plaintiff's impairments and symptoms in the assessed RFC. Despite his statement that he considered Plaintiff's severe and non-severe impairments in assessing her RFC (Tr. at 15), the RFC does not reflect consideration of how migraines that occurred a few times per week affected Plaintiff's ability to work. He assessed an RFC for light work, which would require standing and walking for up to six hours in an eight-hour workday, but provided no specific reasons for rejecting Plaintiff's testimony that she was unable to stand and walk for long periods, aside from the objective evidence discussed above. He also failed to address evidence of Plaintiff's balance and gait instability, that would presumably affect her ability to meet the standing and walking demands of light work. See Tr. at 546, 559, 564, 569, 582. Thus, the ALJ failed to assess Plaintiff's capacity to perform relevant functions, despite contradictory evidence in the record
For all the foregoing reasons, the undersigned recommends the court find the RFC assessment to be unsupported by substantial evidence.
3. Additional Allegation of Error
Plaintiff argues the ALJ did not properly evaluate her mental RFC. [ECF No. 13 at 19-21]. The Commissioner argues the ALJ based his mental RFC assessment on the objective evidence within the mental health records, Plaintiff's reports to her providers, and the medical opinions of record. [ECF No. 15 at 18].
In light of the above recommendation, the undersigned declines to address this specific allegation of error. However, the undersigned notes the ALJ failed to consider in his evaluation of Plaintiff's mental functioning her supportive living arrangement, her inability to administer her own medications, the frequency of her mental health treatment, and her complaints of difficulty maintaining focus to read. III. Conclusion and Recommendation
The court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported as a matter of fact and law. Based on the foregoing, the court cannot determine that the Commissioner's decision is supported by substantial evidence. Therefore, the undersigned recommends, pursuant to the power of the court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in Social Security actions under sentence four of 42 U.S.C. § 405(g), that this matter be reversed and remanded for further administrative proceedings.
IT IS SO RECOMMENDED. September 18, 2019
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
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
901 Richland Street
Columbia, South Carolina 29201
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).