Opinion
C/A No.: 1:17-526-RMG-SVH
11-01-2017
Millileen Broadwater, Plaintiff, v. Nancy A. Berryhill, Acting 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 Supplemental Security Income ("SSI"). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether she 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 December 17, 2012, Plaintiff filed an application for SSI in which she alleged her disability began on December 1, 2012. Tr. at 145-54. Her application was denied initially and upon reconsideration. Tr. at 89-92 and 101-06. On September 3, 2015, Plaintiff had a hearing before Administrative Law Judge ("ALJ") Colin Fritz. Tr. at 29-59 (Hr'g Tr.). The ALJ issued an unfavorable decision on September 23, 2015, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 11-28. 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 February 23, 2017. [ECF No. 1].
B. Plaintiff's Background and Medical History
1. Background
Plaintiff was 53 years old at the time of the hearing. Tr. at 22. She completed the eighth grade. Tr. at 35. She has no past relevant work ("PRW"). Tr. at 37. She alleges she has been unable to work since December 1, 2012. Tr. at 145.
2. Medical History
Plaintiff presented to Marguerite Vardman, ANP-C ("Ms. Vardman"), for routine follow up regarding hypertension and diabetes mellitus on February 9, 2012. Tr. at 357. She indicated she had experienced heart palpitations for a brief period during the prior week. Id. She reported she was doing well, despite the fact that she was no longer taking Valium. Id. Ms. Vardman observed that Plaintiff appeared older than her stated age. Tr. at 358. She stated Plaintiff was morbidly obese at 288 pounds, but indicated she had lost 12 pounds during the prior three-month period. Id.
Plaintiff presented to Frank Kitchens PA-C ("Mr. Kitchens"), for treatment of diabetes mellitus on June 27, 2012. Tr. at 361. Mr. Kitchens noted Plaintiff was 5'3" tall, weighed 230 pounds, and had a body mass index ("BMI") of 40.75. Tr. at 363. He observed pitting edema to the ankles. Id. He assessed stage III chronic kidney disease, chronic obstructive pulmonary disease ("COPD"), malignant essential hypertension, and proteinuria. Tr. at 364.
On September 5, 2012, Plaintiff informed Mr. Kitchens that she had been unable to afford to keep scheduled appointments with the podiatrist and eye clinic. Tr. at 366. Mr. Kitchens observed Plaintiff to have trace pitting edema to the ankles and onychomycosis to the first and fourth toes. Tr. at 368.
On October 17, 2012, Plaintiff reported feeling down following the death of her sister-in-law. Tr. at 372. She stated she had been taking more Clonidine than usual. Id. Mr. Kitchens observed Plaintiff to have trace pitting edema to her ankles. Tr. at 374.
On November 14, 2012, Plaintiff reported Sertraline had made her feel less stressed and depressed. Tr. at 377. Her blood pressure was elevated at 171/106 mm/Hg. Tr. at 379. Mr. Kitchens observed Plaintiff to have diminished breath sounds over the right mid-lung field and trace pitting edema to the ankles. Tr. at 380. He increased Plaintiff's dosage of Norvasc to 10 mg and indicated he would consider a renal ultrasound. Id. He recommended that Plaintiff undergo overnight oximetry and start Flonase. Id.
On December 12, 2012, Plaintiff reported occasional feelings of nervousness that were accompanied by sweat and tightness or fullness in her chest. Tr. at 381. Mr. Kitchens noted that Plaintiff had reduced her salt intake and was doing better on the increased dose of Norvasc. Id. He observed diminished breath sounds over the bases of both lungs and trace pitting edema to the bilateral ankles. Tr. at 383. Because Plaintiff's blood pressure readings from her home log were within normal limits, Mr. Kitchens suspected that Plaintiff had "WHITECOAT HTN." Tr. at 384. He arranged for Plaintiff to receive nocturnal oxygen through a patient assistance plan and indicated he would schedule a follow up overnight oximetry test to assess whether the oxygen was beneficial. Id.
On January 30, 2013, Plaintiff reported that use of overnight oxygen had improved her sleep and made her feel better-rested and less winded. Tr. at 385. She indicated she had observed that her blood pressure increased when she was upset. Id. She reported nasal congestion, lightheadedness, lower extremity edema, shortness of breath, headache, hot flashes, and night sweats. Id. Mr. Kitchens observed frontal sinus pressure, diminished breath sounds over the bases of both lungs, and trace pitting edema to the ankles. Tr. at 387-88. He added Hydrochlorothiazide for hypertension and indicated he would consider a renal ultrasound if Plaintiff's blood pressure continued to be elevated. Tr. at 388.
Mr. Kitchens completed a mental status form on February 20, 2013. Tr. at 290. He noted Plaintiff's mental diagnosis was grief reaction. Id. He indicated Sertraline had helped Plaintiff's condition. Id. He noted that he had recommended psychiatric care, but that Plaintiff had deferred treatment. Id. He stated plaintiff was receiving support from family and friends and denied suicidal and homicidal ideation. Id. He described Plaintiff as being oriented to time, person, place, and situation; having an intact thought process; demonstrating appropriate thought content; having a normal mood/affect; showing good attention/concentration; and demonstrating good memory. Id. He stated Plaintiff exhibited no work-related limitation in function due to a mental condition and indicated she was capable of managing her own funds. Id.
On March 15, 2013, Mr. Kitchens noted that Plaintiff had initially reported lightheadedness and a racing heart with use of Hydrochlorothiazide, but the side effects had decreased after she increased her water intake. Tr. at 389. He indicated Plaintiff's blood pressure readings had improved. Id. Plaintiff reported knee pain and lower extremity edema, but indicated the edema had improved with the addition of Hydrochlorothiazide. Id. Mr. Kitchens observed Plaintiff to be obese; to have diminished breath sounds over the bases of both lungs; to have grade II diastolic heart murmur; and to have trace pitting edema to her ankles. Tr. at 392. He prescribed Hydrocodone-Acetaminophen and Tramadol. Id. He indicated he would check Plaintiff's uric acid level because her pain seemed to have worsened after she started taking a diuretic. Tr. at 393.
On March 21, 2013, an x-ray of Plaintiff's right knee showed mild degeneration, joint space narrowing, and small osteophytes in the medial compartment of the knee joint. Tr. at 273. An x-ray of her lumbar spine showed facet degeneration that resulted in grade I spondylolisthesis of L5 on S1. Tr. at 274.
Plaintiff presented to David N. Holt, M.D. ("Dr. Holt"), for a consultative examination on March 21, 2013. Tr. at 247. She complained of depression, anxiety, hypertension, COPD, lower leg pain and edema, and sleep apnea. Tr. at 247-48. She reported hypertension-related headaches that lasted for two hours at a time and occurred approximately three times per week. Tr. at 248. Dr. Holt noted that Plaintiff was using nasal oxygen at night. Id. He indicated Plaintiff had been diagnosed with diabetes mellitus ten years prior, but had experienced good control with use of Glyburide. Id. Plaintiff reported that she could "read and write a little." Tr. at 249. Dr. Holt observed Plaintiff to have a subtle antalgic gait and normal station. Tr. at 250. He indicated Plaintiff rose slowly from a seated position, but was able to dress, undress, and get on and off the examination table. Id. He observed a muscle spasm in Plaintiff's trapezius muscle; 4+ lateral, medial, and posterior tenderness in her right knee; and 4+ lateral and posterior tenderness in her left knee. Tr. at 251. Plaintiff demonstrated normal pulses and deep tendon reflexes. Id. A straight-leg raising ("SLR") test was negative at 85 degrees in each leg. Id. Plaintiff demonstrated no clubbing, cyanosis, or edema in her extremities. Id. Motor and sensory examinations were normal. Tr. at 252. Plaintiff's cervical flexion and extension and lumbar extension and bilateral lateral flexion were each reduced by five degrees. Tr. at 255. Her bilateral cervical lateral flexion was reduced by 15 degrees, and her lumbar flexion was reduced by 30 degrees. Id. Her bilateral wrist dorsiflexion and palmar flexion were reduced by 10 degrees, and her right knee flexion was reduced by 20 degrees. Id. Plaintiff's left hip flexion was reduced by 10 degrees, and her right hip flexion was reduced by 20 degrees. Id. Dr. Holt noted that Plaintiff had a "somewhat flattened affect," but smiled after she became more comfortable with him. Tr. at 251. Plaintiff demonstrated normal hygiene; followed directions; counted backward from 20; performed serial sevens from 100; and spelled "world" backward. Id. She named the current and prior president, but was unable to recall the name of the vice president. Id. Dr. Holt noted that Plaintiff had 5/5 grip strength in both hands, but that her gross manipulation was interrupted by left shoulder pain. Tr. at 252. He indicated Plaintiff had mild loss of ROM at the cervical and lumbar spines and right knee. Id. He observed that Plaintiff was cooperative and put forth her best effort. Id. He diagnosed "[a]nxiety and depression, mild to possibly moderate"; hypertension; "COPD, by history"; "[b]ilateral knee pain/tenderness, probably osteoarthritis"; "[l]ower leg and ankle pain, without demonstrated or known pathology"; sleep apnea; and type II diabetes mellitus. Id.
Plaintiff presented to Kyle R. Cieply, Ph.D. ("Dr. Cieply"), for a psychological evaluation on April 9, 2013. Tr. at 258. Dr. Cieply noted Plaintiff was cooperative and attempted to respond adequately to all questions during the interview. Tr. at 259. He stated Plaintiff was able to follow simple instructions and was a normal historian. Id. However, he indicated Plaintiff's affect appeared to be diminished. Id. Plaintiff reported problems with bereavement following the deaths of her brother-in-law, father-in-law, mother-in-law, and brother. Id. She indicated she had repeated both the sixth and ninth grades, but had not been diagnosed with a learning disability or developmental delay. Id. She complained of sadness, sleep disturbance, fatigue, psychomotor retardation, feelings of worthlessness, poor concentration, thoughts of death, nervousness, restlessness, irritability, muscle tension, and panic attacks. Tr. at 259-60. She denied hallucinations, delusions, paranoia, and suicidal ideation. Id. She indicated she sometimes did not desire to complete basic activities of daily living ("ADLs") and household chores. Tr. at 260. She endorsed some social isolation and indicated she had a limited social network. Id. Dr. Cieply found it difficult to relate to Plaintiff during the interview. Id. He observed Plaintiff to demonstrate a flat affect and diminished demeanor. Id. He indicated she had "poor initiation with difficulty starting tasks"; "issues with poor attention and concentration"; and appeared "to move and think at a somewhat slower pace." Id. However, he stated Plaintiff had adequate reasoning and judgment. Id. Dr. Cieply administered the fourth edition of Wechsler's Adult Intelligence Scale ("WAIS-IV"). Tr. at 260-61. Plaintiff's intelligence quotient ("IQ") scores were 58 for verbal comprehension, 67 for perceptual reasoning, 77 for working memory, 68 for processing speed, and 61 for full scale. Tr. at 261. Dr. Cieply explained the scores as follows:
Ms. Broadwater has an Extremely Low IQ based on standardized testing. Although there is a significant difference between her very poor verbal and non-verbal skills, both areas of functioning fall in the Extremely Low range of functioning. There is a significant weakness in relation to her verbal comprehension, processing, and concept formation. Her abstract and local thinking and verbal concept formation is particularly poor. Ultimately, her verbal skills have the most negative impact on her overall IQ. Her nonverbal and fluid reasoning are also extremely low, indicating difficulty working with visual information or novel and unexpected situations. Tasks associated with Processing Speed and Working Memory range from borderline to extremely low respectively. Borderline working memory indicates issues with concentration, ability to sustain attention, planning ability, cognitive flexibility, and sequencing skills. The extremely low processing speed skills and speed of mental operation indicates problems focusing her attention, while quickly scanning, discriminating between, and sequentially ordering visual information.Id. Dr. Cieply also administered the fourth edition of the Wide Range Achievement Test ("WRAT-4"). Id. Plaintiff's scores were consistent with the following grade equivalents: 6.5 for reading, 4.7 for sentence comprehension, 6.8 for spelling, and 4.3 for arithmetic. Id. Dr. Cieply determined Plaintiff's scores were consistent with her reported academic difficulties and grade retentions. Tr. at 262. He stated Plaintiff's IQ scores fell in the range for mild mental retardation. Id. He noted that there was no history of the disorder, but "at the very least," Plaintiff met the criteria for borderline intellectual functioning ("BIF"). Id. He diagnosed a history of major depressive disorder ("MDD"), recurrent; a history of generalized anxiety disorder ("GAD"); panic disorder; adjustment disorder related to bereavement; BIF; and learning disorder, not otherwise specified ("NOS"). Id.
On April 29, 2013, pulmonary function testing showed Plaintiff to have a moderately-severe restrictive abnormality. Tr. at 265.
Plaintiff presented to Locke Simons, M.D. ("Dr. Simons"), on May 2, 2013. Tr. at 394. She complained of bilateral ankle edema and indicated Hydrochlorothiazide had caused weakness and fatigue. Id. Dr. Simons indicated Plaintiff had "[n]o real ankle pain, just the discomfort from the swelling in her ankles." Id. Plaintiff indicated the swelling would increase throughout the day. Id. She reported pain in her left shoulder and numbness in her bilateral upper extremities. Id. Dr. Simons observed 2+ pitting edema in Plaintiff's ankles and 2+ pretibial pitting edema. Id. He prescribed Lasix to reduce Plaintiff's fluid retention. Tr. at 397.
State agency medical consultant Adrian Corlette, M.D. ("Dr. Corlette"), reviewed the evidence and completed a physical residual functional capacity ("RFC") assessment on May 3, 2013. Tr. at 66-68. He determined Plaintiff had the following RFC: 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, kneeling, crouching, and crawling; frequently balancing; never climbing ladders, ropes, or scaffolds; avoiding concentrated exposure to extreme cold, extreme heat, humidity, fumes, odors, dusts, gases, poor ventilation, and hazards. Id.
On May 29, 2013, state agency psychological consultant Anna P. Williams, Ph.D. ("Dr. Williams"), reviewed the record and completed a psychiatric review technique form ("PRTF"). She considered Listings 12.02 for organic mental disorders, 12.04 for affective disorders, and 12.09 for substance addiction disorders. Tr. at 64-65. She found that Plaintiff had mild restriction of ADLs, mild difficulties in maintaining social functioning, and mild difficulties in maintaining concentration, persistence, or pace. Tr. at 65. She provided the following explanation:
MS BROADWATER HAS A SEVERE MENTAL IMPAIRMENT W/ POSSIBLE BIF. THE TESTING DONE BY DR CIEPLY AT A RECENT PSYCH EVAL HAS DISCREPANCIES THAT ARE NOT EXPLAINED AND ARE AT ODDS W/ HER PRESENTATION AT HER CME A MONTH EARLIER, SO THE BIF IS NOT SEEN [AS] A FIRM DX. WHILE DR CIEPLY DX'D PANIC D/O, HX OF MDD RECURRENT AND HX OF GAD, THESE DXS ARE NOT GIVEN GREAT WEIGHT, AS MS BROADWATER HAS A LONG AND FREQUENT RELATIONSHIP W/ HER PCP WHO HAS DX'D ONLY A HX OF ADJUSTMENT D/O W/ DEPRESSSION AND IS TREATING HER ONLY FOR BEREAVEMENT WHICH DR CIEPLY HAS ALSO DX'D. HER PCP ALSO GIVES A HX OF ALCOHOLISM. FINALLY, THE LIMS FROM HER PCP'S OFFICE INDICATES NO LIKELY WORK-RELATED LIMITATIONS AND NOTES HER MEMORY AND ATTN/CONC AS GOOD AND HER MOOD/AFFECT AS NORMAL. HER STATEMENTS ARE SEEN AS NOT FULLY CREDIBLE GIVEN THE TESTING DISCREPANCIES. MOST WEIGHT IS GIVEN TO THE PCP'S OPINION. SHE WOULD BE CAPABLE OF ROUTINE WORK ACTIVITIES.Tr. at 65.
Plaintiff reported some improvement in her ankle and leg swelling on July 8, 2013. Tr. at 398. Lisa Jennings, M.D. ("Dr. Jennings"), observed Plaintiff to have 1+ edema in her bilateral ankles. Tr. at 400. Plaintiff's glucose and creatinine were slightly elevated. Tr. at 401. Dr. Jennings indicated Plaintiff's edema had improved with use of Lasix. Tr. at 402.
On September 3, 2013, Plaintiff complained of increased swelling and pain in her legs during the prior week, but indicated the problems appeared to be improving. Tr. at 403. Casie Anderson, APN ("Ms. Anderson"), noted an abnormal peripheral vascular examination, delayed capillary refill of the toes, bilateral 1+ pitting edema to the ankles, and bilateral 1+ pretibial pitting edema. Tr. at 405. She instructed Plaintiff to keep her legs elevated above her heart level while resting and to wear compression stockings each day. Id.
On September 6, 2013, a second state agency psychologist, Cal Vanderplate, Ph.D, ABPP ("Dr. Vanderplate"), reviewed the evidence and completed a PRTF. Tr. at 78-80. He considered Listing 12.06 for anxiety-related disorders, in addition to Listings 12.02, 12.04, and 12.09. Tr. at 78-79. He determined Plaintiff had mild restriction of ADLs, moderate difficulties in maintaining social functioning, and moderate difficulties in maintaining concentration, persistence, or pace. Tr. at 79. He noted that Plaintiff had a history of MDD, GAD, panic disorder, adjustment disorder related to bereavement, BIF, and learning disability. Id. He stated Plaintiff's IQ scores were a "low estimate" and that a diagnosis of BIF was more consistent with her adaptive functioning and work history. Id. Dr. Vanderplate also completed a mental RFC assessment. Tr. at 82-85. He determined Plaintiff was 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; 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; to interact appropriately with the general public; and to accept instructions and respond appropriately to criticism from supervisors. Tr. at 83-84. He stated Plaintiff maintained abilities "to understand, remember, and carry out simple one and two step instructions"; "to maintain concentration, persistence and pace for periods of two hours, perform activities within a schedule, maintain regular attendance, be punctual, and complete a normal workday and workweek"; "to make simple work-related decisions"; to "work in coordination with others without being distracted by them"; "to relate adequately to the public, coworkers, and supervisors"; "to respond appropriately to criticism from supervisors"; "to respond appropriately to changes in the work setting"; and to "be aware of normal hazards." Tr. at 84-85.
State agency medical consultant Stephen Burge, M.D. ("Dr. Burge"), completed a physical RFC assessment on September 11, 2013. Tr. at 80-82. He indicated Plaintiff could perform work with the following restrictions: 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 a total of about six hours in an eight-hour workday; frequently stooping and balancing; occasionally crawling, crouching, kneeling, and climbing ramps and stairs; never climbing ladders, ropes, or scaffolds; and avoiding concentrated exposure to extreme cold, extreme heat, humidity, fumes, odors, dusts, gases, poor ventilation, and hazards. Id.
On September 30, 2013, Plaintiff reported a two-year history of swelling in her bilateral legs. Tr. at 345. She complained of leg and ankle pain. Id. Ms. Anderson observed Plaintiff to have 1+ edema to the posterior tibialis and dorsalis pedis, 1+ pitting edema to the bilateral ankles, 1+ pretibial pitting edema. Tr. at 347. She assessed ankle joint pain and advised Plaintiff to wear compression stockings and to exercise her legs. Id.
Plaintiff reported bilateral leg pain, aching, and cramping that radiated from her knee to her hip on October 28, 2013. Tr. at 348. She indicated her pain was worsened by standing and walking for seven hours while working. Id. Plaintiff had 1+ edema to the posterior tibialis and right ankle. Tr. at 350. Ms. Anderson authorized Plaintiff to return to work the following day, but indicated she should wear compression stockings and keep her legs elevated while resting. Tr. at 351.
Plaintiff complained of right knee pain and more frequent anxiety attacks on December 13, 2013. Tr. at 314. She felt that Zoloft was providing no relief. Id. She indicated she was enrolled in a vocational rehabilitation program, but was having difficulty working because of shortness of breath, cramping and numbness in her hands, right knee pain, and swelling in her legs. Id. Plaintiff's blood pressure was elevated at 152/76. Tr. at 316. Ms. Anderson noted the presence of a grade II systolic heart murmur. Tr. at 317. She observed Plaintiff to have a grade I effusion; diffuse tenderness to palpation; crepitus; and painful restricted active and passive ROM of her right knee. Id. She assessed ankle joint pain, knee joint pain, and anxiety. Id. She prescribed Hydrocodone-Acetaminophen for knee joint pain and replaced Zoloft with Wellbutrin XL 150 mg for anxiety. Id. Ms. Anderson noted that Plaintiff had undergone multiple heart tests that had revealed nothing more significant than tachycardia. Id.
On December 13, 2013, an x-ray of Plaintiff's right knee showed moderate medial compartment knee joint degeneration. Tr. at 275. Dr. Jennings stated Plaintiff needed to see an orthopedist, but had no insurance. Id.
On January 8, 2014, Ms. Anderson noted that Plaintiff's creatinine had been elevated during her last visit. Tr. at 331. Plaintiff indicated Wellbutrin had helped her anxiety and using oxygen during the night had caused her to feel less tired during the day. Id. She endorsed pain in her right knee and bilateral wrists and numbness in her fingers. Id. Ms. Anderson recorded Plaintiff's height as 5'3," her weight as 241.5 pounds, and her body mass index ("BMI") as 42.78. Tr. at 333. She noted Plaintiff had positive Phalen's tests bilaterally, but negative Tinel's sign over the carpal tunnel. Tr. at 334. She assessed degenerative joint disease ("DJD") of the knee and carpal tunnel syndrome ("CTS"). Id. She stated Plaintiff would need a referral to an orthopedist and, possibly, to a nephrologist. Tr. at 335. She applied a knee brace to Plaintiff's right knee and prescribed Meloxicam. Id.
Plaintiff complained of pain in her left thigh on February 20, 2014. Tr. at 337. She demonstrated painful flexion, extension, internal and external rotation, abduction, and adduction of her left hip. Tr. at 339. Ms. Anderson assessed left thigh pain, administered an injection, and prescribed Cyclobenzaprine. Tr. at 340.
On April 29, 2014, Plaintiff requested that her pain medication be prescribed more frequently. Tr. at 292. She indicated the medication was wearing off after four hours and stated she had stopped participating in vocational rehabilitation because of her pain. Id. Ms. Anderson noted no abnormalities on physical examination. Tr. at 294-95. She assessed type II diabetes mellitus and DJD of the knee. Tr. at 295. She discontinued Meloxicam and prescribed 800 mg of ibuprofen. Id. She declined to increase Plaintiff's dosage of Hydrocodone-Acetaminophen, but indicated she could alternate it with ibuprofen. Tr. at 295-96.
On August 4, 2014, Plaintiff complained of a two-week history of left leg pain. Tr. at 299. She described the pain as starting in her foot and traveling to her hip. Id. She also reported a burning sensation in her left foot. Id. She stated she had been unable to attend her last appointment because she could not afford it. Id. Ms. Anderson noted no abnormalities on physical examination. Tr. at 301-02. She administered injections for left leg pain and renewed Plaintiff's prescriptions. Tr. at 302.
Plaintiff followed up on August 18, 2014, and reported that the injection had failed to relieve her left leg pain. Tr. at 306. She requested that her Hydrocodone-Acetaminophen dosage be increased. Id. Ms. Anderson prescribed Gabapentin and declined to increase Plaintiff's dosage of Hydrocodone-Acetaminophen. Tr. at 308.
On September 30, 2014, Plaintiff complained of pain from her hips through her feet. Tr. at 310. She stated Gabapentin had provided no relief. Id. She indicated her pain was more severe "at night after she has been on her feet all day." Id. Ms. Anderson noted no abnormalities on examination. Tr. at 312. She assessed bilateral leg pain. Id. She prescribed Amitriptyline and Tramadol and informed Plaintiff that she would no longer be able to prescribe Hydrocodone-Acetaminophen after October. Id.
Plaintiff reported no significant improvement in her leg pain on October 30, 2014. Tr. at 547. However, she indicated that Tramadol and Amitriptyline each provided some pain relief. Id. Ms. Anderson noted no abnormalities on physical examination. Tr. at 549. She increased Plaintiff's dosage of Amitriptyline to 50 mg, discontinued Hydrocodone-Acetaminophen, and advised Plaintiff to continue using ibuprofen or Aleve between doses of Tramadol. Tr. at 550.
Plaintiff presented to Self Regional Healthcare on January 10, 2015, with a cough, generalized weakness, and other symptoms of upper respiratory infection. Tr. at 516. A chest x-ray showed mild cardiomegaly with mild pulmonary vascular prominence and possible soft tissue attenuation artifact at the lung bases. Tr. at 542. The attending physician diagnosed acute bronchitis. Tr. at 518 and 521.
Plaintiff followed up with Dr. Jennings for bilateral ankle swelling and knee and hip pain on January 12, 2015. Tr. at 551. Dr. Jennings noted that Plaintiff needed an orthopedic referral for DJD in her knees, but had no insurance. Id. She observed tenderness in Plaintiff's ankles and legs, but no edema, varicosities, or swelling. Tr. at 553. She stated Plaintiff's pain was likely related to DJD. Id. She administered injections to Plaintiff's knees and prescribed Prednisone. Tr. at 553-54.
On March 30, 2015, Plaintiff complained of impaired balance. Tr. at 555. She indicated she had recently presented to the ER with chest discomfort and nausea, but had refused hospital admission because she had no insurance. Id. Dr. Jennings observed that Plaintiff's abdomen was rounded and that she had moderate tenderness in her epigastric area. Tr. at 557. She assessed worsening gastroesophageal reflux disease ("GERD") and instructed Plaintiff to take Zantac and to stop drinking caffeinated beverages. Tr. at 557-58.
On April 30, 2015, Plaintiff reported she had stopped drinking caffeinated beverages, but had been unable to afford Zantac. Tr. at 559. She indicated her GERD symptoms had improved. Id. Dr. Jennings observed elevated blood pressure and trace edema to Plaintiff's ankles. Tr. at 561. Plaintiff indicated she was out of Clonidine, and Dr. Jennings authorized a refill. Id.
Plaintiff complained of moderate hip and knee pain and requested that she be referred to a specialist on July 9, 2015. Tr. at 563. Dr. Jennings indicated Plaintiff's pain was likely related to severe DJD. Id. She observed Plaintiff's skin to be hyper-pigmented and noted a macular rash beneath her breasts. Tr. at 565. She diagnosed a yeast infection of the skin and referred Plaintiff to Montgomery Sports Medicine for evaluation of chronic hip and knee pain. Id. She administered intramuscular injections. Tr. at 570.
C. The Administrative Proceedings
1. The Administrative Hearing
a. Plaintiff's Testimony
At the hearing on September 3, 2015, Plaintiff testified that she lived with her husband and cats in a third-floor apartment. Tr. at 34-35. She indicated she had participated in vocational rehabilitation in 2013 and had been placed in a job with the Salvation Army. Tr. at 35. She stated she was only able to perform the job for two weeks because she experienced swelling in her feet and pain that radiated to her hips. Id.
Plaintiff testified that CTS caused her to experience hand cramps during the night. Tr. at 38. She stated she felt numbness in her hands when she attempted to style her hair. Tr. at 49. She complained of pain that radiated from her foot to her hip and a twisting pain in her left knee. Tr. at 38. She reported pain and swelling in her ankles. Tr. at 39. She stated her pain was exacerbated by sitting, standing, and walking. Tr. at 38-39.
Plaintiff stated she used nightly oxygen to treat sleep apnea. Tr. at 40-41. She indicated she was tearful at times. Tr. at 44. She stated she had some difficulty with reading. Tr. at 50.
Plaintiff indicated cortisone injections to her hips had been ineffective. Tr. at 39. She testified that her doctor had recommended compression stockings, prescribed a fluid pill, and instructed her elevated her legs, but that those methods had failed to relieve swelling in her lower extremities. Tr. at 40. She stated she had been unable to visit an orthopedist because she had no income. Tr. at 39.
Plaintiff testified that she experienced increased pain when she shifted from a seated to a standing position. Tr. at 48. She estimated she could stand in one spot for five minutes and walk for 10 minutes at a time. Tr. at 48-49.
Plaintiff stated she prepared her own breakfast. Tr. at 45. She indicated she watched television. Tr. at 46. She testified that she visited her mother and sister twice a week and went to the grocery store and library once a week. Tr. at 46-47. She claimed she did laundry once a month. Tr. at 48.
b. Vocational Expert Testimony
Vocational Expert ("VE") Robert Brabham, Ph.D., reviewed the record and testified at the hearing. Tr. at 53-58. The ALJ described a hypothetical individual of Plaintiff's vocational profile who could perform work at the light exertional level that would allow for up to four hours of standing and walking and up to six hours of sitting during an eight-hour workday. Tr. at 53. He indicated the individual would be unable to climb ladders, ropes, or scaffolds; could occasionally climb ramps and stairs, kneel, crouch, and crawl; could frequently stoop; could occasionally be exposed to extreme cold, extreme heat, humidity, pulmonary irritants, and hazards associated with unprotected heights and dangerous machinery. Tr. at 53-54. He stated the individual would be able to understand, remember, and carry out simple, routine tasks in a low-stress work environment, which he defined as being free of fast-paced or team-dependent production requirements and involving simple work-related decisions, occasional independent judgment skills, and occasional workplace changes. Tr. at 54. The VE testified that the hypothetical individual could perform light jobs with a specific vocational preparation ("SVP") of two as an assembler, Dictionary of Occupational Titles ("DOT") number 739.687-078, with 360,000 positions in the economy; a surgical-dressing maker, DOT number 689.685-130, with 400,000 positions in the economy; and a production inspector, DOT number 739.687-102, with 200,000 positions in the economy. Tr. at 55.
The ALJ next asked the VE to consider the restrictions in the first question, but to further assume the hypothetical individual would be limited to frequent bilateral handling and fingering. Tr. at 56. He asked if the hypothetical individual would be able to perform any jobs. Id. The VE responded that the jobs identified in response to the first question would not allow for only frequent use of the hands. Id. He further indicated the combined limitations in the first and second hypothetical questions would preclude all jobs. Tr. at 57.
Plaintiff's attorney asked the VE to consider that the hypothetical individual would have extremely low nonverbal and fluid reasoning abilities; would have difficulty working with visual information and novel or unexpected situations; and would have reduced processing speed and working memory. Id. He asked how those restrictions would affect an individual's ability to perform the work described in the first hypothetical question. Tr. at 57-58. The VE indicated Plaintiff's attorney's question could not be addressed directly by the DOT. Tr. at 58. He stated the restrictions would generally be consistent with those set forth in the first hypothetical question, but that the reduction in processing speed would be "very problematic." Id.
2. The ALJ's Findings
In his decision dated September 23, 2015, the ALJ made the following findings of fact and conclusions of law:
1. The claimant has not engaged in substantial gainful activity since December 17, 2012, the application date (20 CFR 416.971 et seq.).
2. The claimant has the following severe impairments: degenerative joint disease of the right knee, respiratory disorder, obesity, sleep apnea, affective disorder, anxiety disorder, and borderline intellectual functioning (20 CFR 416.920(c)).
3. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).
4. 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 416.967(b), except that standing and walking combined can be performed for 4 hours out of an 8-hour workday, and sitting can be performed for 6 hours out of an 8-hour workday. She cannot climb ladders, ropes, or scaffolds; can occasionally climb ramps and stairs, kneel, crouch and crawl; can frequently stoop; can occasionally be exposed to extreme cold, extreme heat, humidity, pulmonary irritants (such as fumes, smoke, odors, dust, gases, and poor ventilation), and hazards associated with unprotected dangerous machinery or unprotected heights. She is able to understand, remember and carry out simple, routine tasks in a low stress work environment (defined as being free of fast-paced or team-dependent production requirements), involving simple work-related decisions, occasional independent judgment skills, and occasional workplace changes.Tr. at 16-24. II. Discussion
5. The claimant has no past relevant work (20 CFR 416.965).
6. The claimant was born on March 9, 1962 and was 50 years old, which is defined as an individual closely approaching advanced age, on the date the application was filed (20 CFR 416.963).
7. The claimant has a limited education and is able to communicate in English (20 CFR 416.964).
8. Transferability of job skills is not an issue because the claimant does not have past relevant work (See 20 CFR 416.968).
9. 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 416.969, and 416.969(a)).
10. The claimant has not been under a disability, as defined in the Social Security Act, since December 17, 2012, the date the application was filed (20 CFR 416.920(g)).
Plaintiff alleges the Commissioner erred for the following reasons:
1) the ALJ did not properly consider Plaintiff's severe impairments;
2) the ALJ did not adequately explain his RFC assessment; and
3) the ALJ did not appropriately consider Plaintiff's subjective complaints.
The Commissioner counters that substantial evidence supports the ALJ's findings and that the ALJ committed no legal error in his 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. § 416.920. 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. § 416.920(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. § 416.925. 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. § 416.920(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. § 416.926; 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. § 416.920(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, § 416.920(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. Severe Impairments
Plaintiff argues the ALJ improperly concluded that bilateral CTS, lower extremity edema, and left hip and leg pain were non-severe impairments. [ECF No. 18 at 14-15]. She contends the ALJ selected only the evidence that supported his conclusion and ignored significant evidence to the contrary. Id. at 16. She claims the ALJ did not account for the functional limitations imposed by these impairments in the RFC assessment. Id. at 17-20.
The Commissioner argues the ALJ properly considered the severity of Plaintiff's impairments. [ECF No. 19 at 4]. She maintains the ALJ cited evidence to support his findings that edema and left leg pain were non-severe and that CTS was not a medically-determinable impairment. Id. at 6. She contends the ALJ proceeded beyond step two and assessed an RFC that considered Plaintiff's severe and non-severe impairments. Id.
An individual can only be found disabled if she is "unable to do any substantial gainful activity by reason of any medically determinable physical or mental impairment." 20 C.F.R. § 416.927(a)(1) (effective August 24, 2012, to March 26, 2017). A medically-determinable impairment "must result from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." Id., citing 20 C.F.R. § 416.908 (effective to March 26, 2017) ("A physical or mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by your statement of symptoms."). It must also be diagnosed by an acceptable medical source. 20 C.F.R. § 416.913(a) (effective September 3, 2013, to March 26, 2017).
If the evidence establishes the existence of a medically-determinable impairment, the ALJ should assess its severity. See 20 C.F.R. § 416.920(a)(4)(ii) ("At the second step, we consider the severity of your impairment(s). If you do not have a severe medically determinable physical or mental impairment that meets the duration requirement in § 416.909, or a combination of impairments that is severe and meets the duration requirement, we will find that you are not disabled."). A severe impairment "significantly limits [a claimant's] physical or mental ability to do basic work activities." 20 C.F.R. § 416.920(c); see also SSR 96-3p. A non-severe impairment "must be a slight abnormality (or a combination of slight abnormalities) that has no more than a minimal effect on the ability to do basic work activities." SSR 96-3p, citing SSR 85-28; see also 20 C.F.R. § 416.921(a) (effective to March 26, 2017) ("An impairment or combination of impairments is not severe if it does not significantly limit your physical or mental ability to do basic work activities.").
Basic work activities include physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; capacities for seeing, hearing, and speaking; understanding, carrying out, and remembering simple instructions; use of judgment; responding appropriately to supervision, coworkers, and usual work situations; and dealing with changes in a routine work setting. 20 C.F.R. § 416.921(b) (effective to March 26, 2017).
The ALJ's recognition of a single severe impairment at step two ensures that he will progress to step three. See Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008) ("[A]ny error here became harmless when the ALJ reached the proper conclusion that [claimant] could not be denied benefits conclusively at step two and proceeded to the next step of the evaluation sequence."). Therefore, this court has found no reversible error where the ALJ neglected to find an impairment to be severe at step two provided that he considered that impairment in subsequent steps. See Washington v. Astrue, 698 F. Supp. 2d 562, 580 (D.S.C. 2010) (collecting cases); Singleton v. Astrue, No. 9:08-1982-CMC, 2009 WL 1942191, at *3 (D.S.C. July 2, 2009).
The ALJ determined that DJD of the right knee, respiratory disorder, obesity, sleep apnea, affective disorder, anxiety disorder, and BIF were severe impairments. Tr. at 16. He found that bilateral ankle edema, hypertension, heart palpitations/murmurs, diabetes, GERD, and chronic kidney disease were non-severe impairments. Id. He noted that Plaintiff had reported "no real ankle pain, just the discomfort from swelling" and demonstrated no swelling or tenderness from April to August 2014. Id. He indicated that Plaintiff had not used an assistive walking device and that Dr. Jennings had found her edema to be improving with medication. Tr. at 17. He found that CTS was a non-medically determinable impairment because it had not been diagnosed by an acceptable medical source. Id.
The record includes a diagnosis of CTS from Ms. Anderson. Tr. at 334. As a nurse, Ms. Anderson was not considered to be an acceptable medical source under the regulations. See 20 C.F.R. § 416.913(a), (d) (effective September 3, 2013, to March 26, 2017) (providing that evidence from other medical sources may be used "to show the severity" of a claimant's impairment and its functional effects, but cannot be used to establish a diagnosis). In addition, Plaintiff did not consistently report pain and numbness in her wrists and hands. The record includes three treatment visits during which Plaintiff complained of numbness, pain, or cramping in the wrists, hands, or fingers, but the last report of these symptoms was more than a year-and-a-half prior to the hearing. See Tr. at 314 (complaining of cramping and numbness in the hands on December 13, 2013), 331 (reporting bilateral wrist pain and numbness in the fingers on January 8, 2014), and 394 (endorsing left shoulder pain and bilateral upper extremity numbness on May 2, 2013). In light of the foregoing, the undersigned recommends the court find that substantial evidence supported the ALJ's finding that CTS was not among Plaintiff's medically-determinable impairments.
Plaintiff complained of left hip and leg pain during several treatment visits. Tr. at 299, 306, and 337. "However "[a]n individual's statements alone "are not enough to establish that there is a physical or mental impairment." 20 C.F.R. § 416.928(a) (effective March 31, 2006, to March 26, 2017). The record shows no abnormal clinical findings during the examinations, aside from complaints of pain during ROM testing. See Tr. at 302, 308, and 339-40. It also contains no diagnoses of impairments that would be likely to cause the pain. See id. Therefore, the undersigned recommends the court find the ALJ did not err in failing to assess left lower extremity pain as a severe impairment.
The record contains observable signs that substantiate Plaintiff's complaints of lower extremity edema. See 20 C.F.R. § 416.928(b) (effective March 31, 2016, to March 26, 2017) ("Signs are anatomical, physiological, or psychological abnormalities which can be observed, apart from your statements (symptoms)."). Plaintiff's medical providers observed anatomical abnormalities in Plaintiff's bilateral feet and ankles that were consistent with her complaints of edema. See Tr. at 347, 350, 363, 368, 374, 380, 383, 388, 392, 397, 400, 405, and 561. Thus, edema was among Plaintiff's medically-determinable impairments.
The record generally supports the ALJ's conclusions that Plaintiff's ankle and foot edema caused no "real pain," was generally relieved with medication, and did not necessitate use of an assistive device for ambulation. Tr. at 16. Although Dr. Kitchens observed Plaintiff to have pitting edema to her ankles on June 27, 2012, September 5, 2012, October 17, 2012, November 14, 2012, December 12, 2012, January 30, 2013, and March 15, 2013, Plaintiff did not report any associated functional limitations. See Tr. at 361, 366, 372, 377, 381, 385, and 389. As the ALJ noted (Tr. at 16), on May 2, 2013, Dr. Simons indicated Plaintiff was experiencing "[n]o real ankle pain, just the discomfort from the swelling in her ankles." Tr. at 394. He prescribed Lasix. Tr. at 396. While Plaintiff reported pain associated with the edema on July 8, 2013, September 3, 2013, and September 30, 2013, she also indicated Lasix had provided some relief. Tr. at 345, 398, and 403. On October 28, 2013, Plaintiff denied pain and reported that her legs were "getting better witht [sic] the support hose." Tr. at 348. On December 13, 2013, Plaintiff complained of ankle pain and stated she experienced swelling in her legs while standing, but she had no signs of edema on physical examination. Tr. at 314 and 317. As the ALJ pointed out (Tr. at 16), treatment records from April to August 2014 show no signs of edema. See Tr. at 292-96, 299-302, and 306-08. In fact, Plaintiff did not complain of edema, and her providers did not observe signs of edema during any visits in 2014. See generally Tr. at 292-96, 299-302, 306-08, 310-13, 331-35, 337-40, and 547-50. She complained of occasional ankle swelling on January 12, 2015 (Tr. at 551), but Dr. Jennings observed no edema (Tr. at 553). Dr. Jennings noted trace ankle edema on April 30, 2015, but Plaintiff did not report any resulting functional limitations. See Tr. at 559-61. The record does not indicate complaints or signs of edema during medical visits on March 30, 2015, and July 9, 2015. Tr. at 555-58 and 559-61.
Although the record supports the ALJ's conclusions that Plaintiff's bilateral ankle edema caused no "real pain," was generally relieved with medication, and did not necessitate use of an assistive device for ambulation, it also supports a finding that the impairment limited Plaintiff's ability to engage in prolonged standing and walking. See Tr. at 314 ("Her legs swell only when she is standing."), 348 (noting Plaintiff's complaints of leg pain that was worsened by standing and walking for seven hours while working and observing lower extremity edema), 394 (indicating Plaintiff woke in the morning with no swelling, but it "quickly comes on as the day goes on"). Standing and walking are basic work activities. See 20 C.F.R. § 416.921(b) (effective to March 26, 2017). The record shows that Plaintiff complained of bilateral edema after standing for extended periods to perform her job for the vocational rehabilitation program. See Tr. at 314 and 348. It is noteworthy that her physicians no longer observed edema on a consistent basis after Plaintiff stopped participating in the program. See Tr. at 292 (indicating Plaintiff had stopped participating in vocational rehabilitation because of her pain).
In light of evidence that suggested Plaintiff's bilateral ankle edema had more than a minimal effect on her abilities to engage in prolonged standing and walking, the undersigned recommends the court find the ALJ erred in classifying it as a non-severe impairment. While an error at step two may be found harmless if the ALJ considers the impairment at subsequent steps, as explained below, it does not appear the ALJ considered Plaintiff's bilateral ankle edema in assessing her RFC. Therefore, the undersigned further recommends the court decline to find harmless the ALJ's step two error.
2. RFC Assessment
Plaintiff argues the ALJ did not explain the RFC assessment as required by SSR 96-8p. [ECF No. 18 at 20]. She maintains the ALJ's RFC assessment does not reflect consideration of her leg and hip pain. Id. at 21-22. She contends the ALJ did not adequately consider Dr. Cieply's findings in assessing her mental limitations. Id. at 23.
The Commissioner argues the ALJ properly assessed Plaintiff's RFC. [ECF No. 19 at 6]. She maintains that the ALJ considered all the relevant evidence in assessing Plaintiff's RFC and that the evidence does not reflect the need for additional limitations. Id. at 7-9.
A claimant's RFC represents the most she can still do despite her limitations. 20 C.F.R. § 416.945(a). It must be based on all the relevant evidence in the case record and should account for all of the claimant's medically-determinable impairments. Id. It should consider the combined effect of all the claimant's impairments "without regard to whether any such impairment, if considered separately, would be of sufficient severity." 20 C.F.R. § 416.923 (effective to March 27, 2017). 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.
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, the court has specified that "the adequacy requirement of Walker is 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)). Furthermore, absent evidence to the contrary, the courts 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 RFC assessment must include 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 determine the claimant's ability to perform work-related physical and mental abilities on a regular and continuing basis. Id. at *2. He must explain how any material inconsistencies or ambiguities in the record were resolved. Id. at *7. "[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).
As an initial matter, the undersigned notes that the ALJ did not indicate in his decision that he evaluated the combined effect of Plaintiff's impairments in assessing her RFC. See generally Tr. at 19-22. The ALJ considered Plaintiff's obesity and knee impairment in combination in restricting her to "light work with reduced postural movements"; her respiratory disorder and sleep apnea in combination in assessing restrictions against concentrated exposure to breathing irritants and workplace hazards; and her mental impairments in combination in restricting her to simple, routine, and low stress work with occasional independent judgment and workplace changes. Tr. at 22. However, he did not indicate he had considered whether Plaintiff's RFC had been further reduced by the combined effect of all of her severe and non-severe impairments. Therefore, the ALJ's RFC assessment does not comply with the provisions of 20 C.F.R. § 416.923 (effective to March 27, 2017) or the Fourth Circuit's holding in Walker, 889 F.3d at 49-50.
The ALJ did not err in failing to consider Plaintiff's complaints of hip and leg pain to the extent that they were not symptoms of a diagnosed medically-determinable impairment. However, his RFC assessment is deficient to the extent that it does not address the functional limitations imposed by bilateral ankle edema in combination with obesity and DJD of the right knee. The record suggests that Plaintiff's ability to engage in prolonged standing and walking would be affected by bilateral ankle edema. See Tr. at 314, 348, and 394. It also contains Ms. Anderson's recommendation that Plaintiff elevate her legs to reduce swelling. See Tr. at 351 and 405. Because the ALJ did not address the effect of bilateral ankle edema on Plaintiff's capacity to perform relevant functions, despite contradictory evidence in the record, his RFC assessment is inadequate. See Mascio, 780 F.3d at 636.
Although Dr. Cieply described Plaintiff as moving and thinking at a somewhat slower pace and having "poor initiation with difficulty starting tasks" and "issues with poor attention and concentration" (Tr. at 260), substantial evidence supports the ALJ's finding that she had moderate limitations in concentration, persistence, or pace. Tr. at 18. The ALJ explained that Plaintiff's moderate limitations would allow her to understand, remember, and carry out "simple, routine tasks in a low stress work environment (defined as being free of fast-paced or team-dependent production requirements), involving simple work-related decisions, occasional independent judgment skills, and occasional workplace changes." Tr. at 19-20. He stated Plaintiff's providers had "routinely described her mood, affect, and social judgment as normal. Tr. at 21, citing Tr.at 258-62, 290, 295, 301, 308, 312, 317, 334, 339, 344, 355, 381, 388, 518, and 545. He noted that Plaintiff had indicated she was doing well and feeling "less stressed and depressed" one month prior to filing her claim for disability benefits. Id. He indicated a January 2013 mental status examination showed Plaintiff to have normal thought processes, intact memory, and good attention/concentration. Id. He gave some weight to Dr. Kitchens's February 2013 opinion that Plaintiff's mental impairments had no effect on her work functioning based on her "conservative treatment history, routinely normal mood, and ability to complete her disability paperwork." Id. However, he gave it no additional weight in light of Plaintiff's low IQ score. Id. He indicated Dr. Holt had observed Plaintiff to have no trouble following directions or performing basic cognitive tasks in March 2013. Id. He noted that Dr. Cieply had described Plaintiff as being cooperative and able to follow instructions in April 2013. Id. He stated the evidence was consistent with Plaintiff's "lack of any psychiatric counseling or hospitalization since the application date" and was supported by "her lack of any development[al] history of learning disability." Id. He accorded great weight to Dr. Vanderplate's opinion that Plaintiff would be "moderately limited in her ability to understand and carry out detailed instructions; maintain attention and concentration for extended periods"; and "maintain a normal work schedule" because they were supported by her "reduced intellectual abilities." Tr. at 21-22. In light of the ALJ's detailed explanation for the functional limitations to concentration, persistence, and pace that he found to be supported by the record, substantial evidence supports his findings.
The ALJ did not adequately assess Plaintiff's capacity to engage in social interaction in a work environment. Both Dr. Cieply and Dr. Vanderplate indicated Plaintiff's mental impairments affected her ability to function socially. See Tr. at 84 (Dr. Vanderplate's assessment of moderate limitation in abilities to interact appropriately with the general public and to accept instructions and respond appropriately to criticism from supervisors) and 260 (Dr. Cieply's indication that he had difficulty relating to Plaintiff during the interview and that she had endorsed social isolation and indicated she had a limited social network). The ALJ stated he gave little weight to Dr. Vanderplate's opinion that Plaintiff would be moderately limited in her ability to "interact appropriately with the general public and supervisors," because the social limitations were not supported by her "routinely normal mood and cooperative behavior during her medical appointments." Tr. at 22. He did not address Dr. Cieply's observations regarding Plaintiff's ability to function in a social setting. The ALJ cited records that indicated Plaintiff had normal psychiatric functioning, but these records did not address her ability to function socially. See Tr. at 290 (noting orientation to time, person, place, and situation; intact thought process; appropriate thought content; normal mood/affect; good attention/concentration; and good memory); Tr. at 295, 301, 308, 312, 317, 334, 339, 344, 355, 518, and 545 (indicating normal mood and affect); Tr. at 381 (stating "negative" for psychiatric review of systems); and Tr. at 388 (assessing normal and appropriate mood and affect). Because the ALJ did not adequately address the evidence of record that suggested Plaintiff's capacity to function socially in a work environment was impaired, his RFC assessment is flawed.
In sum, the undersigned recommends the court find the ALJ erred in assessing Plaintiff's RFC based on his failure to adequately consider the combined effect of her impairments; the functional limitations imposed by bilateral ankle edema; and evidence that suggested her abilities to work with coworkers, supervisors, and the general public were impaired.
3. Subjective Complaints
Plaintiff argues the ALJ did not properly consider the credibility of her subjective complaints. [ECF No. 18 at 24]. She maintains the ALJ did not consider the evidence of record that was consistent with her alleged functional limitations. Id. at 25. She contends the ALJ found her statements to be less credible because she had not followed up with specialists, but failed to consider that she was unable to afford such treatment. Id. at 26-27. She claims the ALJ neglected to consider evidence in her school records that was consistent with her alleged mental impairments. Id. at 27. She maintains the ALJ did not consider that her failed attempt to obtain employment through vocational rehabilitation was consistent with her allegations. Id. at 27.
The Commissioner argues the objective evidence does not support Plaintiff's subjective complaints. [ECF No. 19 at 9-10].
Pursuant to SSR 96-7p, after finding that a claimant has a medically-determinable impairment that could reasonably be expected to produce her alleged symptoms, an ALJ should evaluate the intensity, persistence, and limiting effects of her symptoms to determine the restrictions they impose on her ability to do basic work activities. If the objective medical evidence does not substantiate the claimant's statements about the intensity, persistence, or limiting effects of her symptoms, the ALJ is required to consider the credibility of the statements in light of the entire case record. SSR 96-7p. The ALJ must consider "the medical signs and laboratory findings, the individual's own statements about the symptoms, any statements and other information provided by treating or examining physicians or psychologists and other persons about the symptoms and how they affect the individual, and any other relevant evidence in the case record." Id. In addition to the objective medical evidence, the ALJ should consider the claimant's ADLs; the location, duration, frequency, and intensity of her pain or other symptoms; factors that precipitate and aggravate her symptoms; the type, dosage, effectiveness, and side effects of her medications; treatment, other than medication, she receives or has received; any measures other than treatment and medications she uses or has used to relieve her pain or other symptoms; and any other relevant factors concerning her limitations and restrictions. Id.
"[T]he adjudicator must not draw any inferences about an individual's symptoms and their functional effects from a failure to seek or pursue regular medical treatment without first considering any explanations that the individual may provide, or other information that may explain infrequent or irregular medical visits or failure to seek medical treatment." Id.; see also 20 C.F.R. § 416.930. Fourth Circuit precedent directs that ALJs may not deny benefits to claimants who lack the financial resources to obtain treatment. See Lovejoy v. Heckler, 790 F.2d 1114, 1117 (4th Cir.1986) (holding that the ALJ erred in determining that the plaintiff's impairment was not severe based on her failure to seek treatment where the record reflected that she could not afford treatment); Gordon v. Schweiker, 725 F.2d 231, 237 (4th Cir.1984) ("it flies in the face of the patent purposes of the Social Security Act to deny benefits to someone because he is too poor to obtain medical treatment that may help him"). When a claimant alleges an inability to afford treatment and an ALJ considers the failure to obtain treatment as a factor that lessens the claimant's credibility, the ALJ must make specific findings regarding the claimant's ability to afford treatment. See Dozier v. Colvin, C/A No. 1:14-29-DCN, 2015 WL 4726949, at *4 (D.S.C. Aug. 10, 2015) (remanding the case because the ALJ did not include specific factual findings regarding the resources available to the plaintiff and whether "her failure to seek additional medical treatment was based upon her alleged inability to pay"); Buckley v. Commissioner of Social Sec. Admin., C/A No. 1:14-124-TLW, 2015 WL 3536622, at *21 (D.S.C. Jun. 4, 2015) (finding the ALJ adequately considered the claimant's allegation that she lacked the financial resources to obtain treatment as part of the credibility determination where the ALJ cited specific evidence in the record that contradicted the claimant's allegation).
The ALJ found that Plaintiff's medically-determinable impairments could reasonably be expected to cause the symptoms she alleged, but that her statements concerning the intensity, persistence, and limiting effects of the symptoms were not entirely credible. Tr. at 20. He considered Plaintiff's right knee pain and obesity, but found that the "evidence strongly weighs against her allegations of highly limited exertional abilities and constant knee pain." Tr. at 21. He cited Plaintiff's x-rays; her denial of musculoskeletal pain in October 2013 and April 2014; observations of only mildly decreased ROM; Plaintiff's statements; and the fact that she had not been prescribed a walking device. Tr. at 20-21. He referenced chest x-rays, pulmonary stress tests, and Mr. Kitchens's findings in concluding that Plaintiff's physical examinations had routinely been negative for breathing difficulties. Tr. at 21. He mentioned Plaintiff's medical providers' observations during examinations, Plaintiff's reports to her medical providers, and the "lack of any psychiatric counseling or hospitalization since the application date" in evaluating her mental impairments. Id. The ALJ also evaluated and weighed the opinion evidence. Tr. at 21-22. He found that Plaintiff's limited work history weighed against her allegations that she could not work. Tr. at 21.
Despite Plaintiff's allegation [ECF No. 18 at 27-28], it does not appear that the ALJ considered her failure to obtain treatment she could not afford in reducing her credibility. Although the ALJ noted that Plaintiff had not undergone psychiatric counseling or been hospitalized for psychiatric treatment during the relevant period, he seems to have cited this evidence to show that Plaintiff's symptoms did not necessitate such treatment, as opposed to using it to reduce her credibility based on noncompliance. See Tr. at 21 (noting normal mental status examinations and Plaintiff's indications that she was doing well and feeling "less stressed and depressed").
Also, contrary to Plaintiff's allegation, it appears the ALJ considered her slightly impaired gait in evaluating the credibility of her subjective statements. See Tr. at 16 (noting that Plaintiff's medical providers and examiners had "observed a slightly antalgic gait").
While Plaintiff maintains the ALJ failed to consider her "struggles in school," the undersigned notes that the record is devoid of academic records and that the ALJ cited evidence to suggest Plaintiff's academic abilities were higher than she alleged. See Tr. at 18 (noting Dr. Cieply's finding that Plaintiff did not have a history of learning disorder or developmental delay) and 19 (indicating Plaintiff was able to follow basic instructions, "given her hearing conduct and submission of paperwork during the application process" and stating "her submitted paperwork contained lengthy explanations relating to her medications, medical history, and alleged limitations" and "only occasional spelling errors"). In assessing the entire record, the ALJ neglected to note Plaintiff's allegations of "struggles in school." See SSR 96-7p. If this were his only error, it would likely be insufficient to warrant remand. See Reid, 769 F.3d at 865 ("While the Commissioner's decision must 'contain a statement of the case, in understandable language, setting forth a discussion of the evidence, and stating the Commissioner's determination and the reason or reasons upon which it is based, 42 U.S.C. § 405(b)(1), 'there is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision.'"), citing Dyer v. Barnhardt, 395 F.3d 1206, 1211 (11th Cir. 2005) (per curiam); Russell v. Chater, No. 94-2371, 1995 WL 417576, at *3 (4th Cir. July 7, 1995) (per curiam) (explaining that this Court has not "established an inflexible rule requiring an exhaustive point-by-point discussion in all cases"). However, the ALJ failed to consider additional evidence that was material to the disability determination.
Plaintiff correctly notes the ALJ's failure to consider her prescriptions for a knee brace and various pain medications in evaluating the credibility of her complaints of pain. [ECF No. 18 at 26]. She also properly notes the ALJ's failure to consider her attempt to work through vocational rehabilitation, despite evidence that her bilateral ankle edema was exacerbated by the physical requirements of the job. Id. at 27. As discussed in detail above, the ALJ erred in assessing the severity of Plaintiff's bilateral ankle edema and in determining her RFC. In light of these errors, the undersigned recommends the court find that the ALJ's credibility assessment does not reflect his evaluation of the entire record, as required by SSR 96-7p. 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. November 1, 2017
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).