Opinion
C/A No. 2:17-cv-01595-RBH-MGB
12-10-2018
RHONDA CORINE BURTON, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Plaintiff Rhonda Corine Burton ("Plaintiff"), brought this action pursuant to Section 205(g) of the Social Security Act, as amended, (42 U.S.C. Section 405(g)), to obtain judicial review of a final decision of the Commissioner of Social Security Administration regarding her claim for Supplemental Security Income ("SSI") under the Social Security Act (the "Act"). See Section 205(g) of the SSA, as amended, 42 U.S.C. § 405(g). This matter was referred to the Magistrate Judge for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and Title 28, United States Code, Section 636(b)(1)(B). For the reasons set forth herein, the undersigned recommends reversing the decision of the Commissioner and remanding for further consideration.
RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS
Plaintiff was 27 years old on her alleged disability onset date of January 1, 1998. (R. at 12, 44.) Plaintiff claims disability due, inter alia, obesity, gastroparesis, status post fusion of the lumbar spine, anxiety, panic disorder, and major depressive disorder. (R. at 14.) Plaintiff has no past relevant work. (R. at 59.)
Plaintiff filed an application for SSI on October 24, 2013. (R. at 12.) Her application was denied initially and on reconsideration. (R. at 12.) After a hearing before an Administrative Law Judge ("ALJ") on November 4, 2015, the ALJ issued a decision on May 26, 2016, in which the ALJ found that Plaintiff was not disabled. (R. at 12-29.) The Appeals Council denied Plaintiff's request for review, (R. at 9-11), making the ALJ's decision the Commissioner's final decision for purposes of judicial review.
In making the determination that the Plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant has not engaged in substantial gainful activity since October 24, 2013, the application date (20 CFR 416.971 et seq.).
(2) The claimant has the following severe impairments: obesity, gastroparesis, status post fusion of the lumbar spine, anxiety, panic disorder, and major depressive disorder (20 CFR 416.920(c)).
(3) 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 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 sedentary work as defined in 20 CFR 416.967(a) except she can never climb ladders, ropes or scaffolds. The claimant can occasionally climb ramps and stairs, stoop, kneel, crouch, and crawl. She can have no exposure to unprotected heights. The claimant must avoid concentrated exposure to dust, odors, fumes, pulmonary irritants, extreme cold, and extreme heat. She is limited to the performance of simple, routine tasks. The claimant can interact and respond appropriately to supervisors, coworkers, and the public on an occasional basis. The claimant's use of judgment and ability to deal with changes in the work setting are limited to simple, work-related decisions. In addition to normal breaks, the claimant is expected to be off task up to 10 percent of the time in an 8-hour workday. She requires a sit/stand option defined as a brief postural change at or near the work station up to a maximum duration of 5 minutes twice in an hour.
(5) The claimant has no past relevant work (20 CFR 416.965).
(6) The claimant was born on October 26, 1971 and was 41 years old, which is defined as a younger individual age 18-44, on the date the application was filed. The claimant subsequently changed age category to a younder individual age 45-49 (20 CFR 416.963).(R. at 12-29.)
(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 (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, from October 24, 2013, the date the application was filed (20 CFR 416.920(g)).
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a "disability." 42 U.S.C. § 423(a). "Disability" is defined in the Act as the inability to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than" twelve months. See 42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, the Act has by regulation reduced the statutory definition of "disability" to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment which equals an illness contained in the Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents her from doing substantial gainful employment. See 20 C.F.R. § 404.1520 (DIB context); 20 C.F.R. § 416.920 (SSI context). If an individual is found not disabled at any step, further inquiry is unnecessary. See 20 C.F.R. § 404.1520(a)(4); see also Hall v. Harris, 658 F.2d 260 (4th Cir. 1981).
A plaintiff is not disabled within the meaning of the Act if she can return to past relevant work as it is customarily performed in the economy or as the claimant actually performed the work. See SSR 82-62, 1982 WL 31386, at *3. The plaintiff bears the burden of establishing her inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5); She must make a prima facie showing of disability by showing that he is unable to return to her past relevant work. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); see also Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016).
Once an individual has established an inability to return to her past relevant work, the burden is on the Commissioner to come forward with evidence that the plaintiff can perform alternative work and that such work exists in the national economy. See Monroe, 826 F.3d at 180. The Commissioner may carry the burden of demonstrating the existence of jobs available in the national economy which the plaintiff can perform despite the existence of impairments which prevent the return to past relevant work by obtaining testimony from a vocational expert. Id.
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the findings of the Commissioner "are supported by substantial evidence and whether the correct law was applied." Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); see also Woods v. Berryhill, 888 F.3d 686, 691 (4th Cir. 2018); Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015); 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). Consequently, the Act precludes a de novo review of the evidence and requires the court to uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing 42 U.S.C. § 405(g); Mascio, 780 F.3d at 640; Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012).
Substantial evidence is "more than a mere scintilla of evidence but may be less than a preponderance." Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015) (citing Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012)). "In reviewing for substantial evidence, [the court does] not undertake to reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ]." Hancock, 667 F.3d at 472. "Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ]," not on the reviewing court. Id. However, "[a] factual finding by the ALJ is not binding if it was reached by means of an improper standard or misapplication of the law." Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).
DISCUSSION
Plaintiff contends that the ALJ erred in failing to evaluate the combined effect of her multiple impairments and also erred in his assessment of opinions from Plaintiff's treating physicians and other sources. (Dkt. No. 13.) The undersigned considers Plaintiff's arguments below.
A. Combination of Impairments
Plaintiff argues that the ALJ failed to account for the combined effect of her impairments in her analysis of Plaintiff's residual functional capacity ("RFC") assessment and should have included additional limitations related to her gastrointestinal symptoms. (Dkt. No. 13 at 11.)
"[R]esidual functional capacity is the most [a claimant] can still do despite [her] limitations." Felton-Miller v. Astrue, 459 F. App'x 226, 230 (4th Cir. 2011) (quoting 20 C.F.R. §§ 404.1545(a)). "The RFC assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis. . . ." SSR 96-8p (S.S.A. July 2, 1996); accord Mascio, 780 F.3d at 636 (internal quotations omitted). The RFC must be based upon all relevant medical evidence and other evidence in the record and may include a claimant's own description of limitations arising from alleged symptoms. 20 C.F.R. § 404.1545(a)(3). The ALJ must consider the cumulative effect of a Plaintiff's multiple impairments in making a disability determination. 42 U.S.C. § 423(d)(2)(B); see Hines v. Bowen, 872 F.2d 56, 59 (4th Cir. 1989) (citations omitted) ("[I]n determining whether an individual's impairments are of sufficient severity to prohibit basic work-related activities, an ALJ must consider the combined effect of a claimant's impairments.").
Ordinarily, RFC is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis, and the RFC assessment must include a discussion of the individual's abilities on that basis. A "regular and continuing basis" means 8 hours a day, for 5 days a week, or an equivalent work schedule. RFC does not represent the least an individual can do despite his or her limitations or restrictions, but the most.SSR 96-8p, 1996 WL 374184, at *2 (emphases in original).
The ALJ "must consider all the evidence and explain on the record the reasons for his findings, including the reason for rejecting relevant evidence in support of the claim." King v. Califano, 615 F.2d 1018, 1020 (4th Cir. 1980). "Even if legitimate reasons exist for rejecting or discounting certain evidence, the [ALJ] cannot do so for no reason or for the wrong reason." Id. However, "there is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision." Reid v. Comm'r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014) (quoting Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (per curiam)). As the party attacking the Commissioner's decision, the claimant carries the burden to show that prejudice resulted from any error. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009).
The ALJ must also consider the combined effect of a claimant's impairments. The regulations provide, inter alia,
In determining whether your physical or mental impairment or impairments are of a sufficient medical severity that such impairment or impairments could be the basis of eligibility under the law, we will consider the combined effect of all of your impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity. If we do find a medically severe combination of impairments, the combined impact of the impairments will be considered throughout the disability determination process. . . .20 C.F.R. § 404.1523; 20 C.F.R. § 416.923 (emphasis added).
It "is axiomatic that disability may result from a number of impairments which, taken separately, might not be disabling, but whose total effect, taken together, is to render claimant unable to engage in substantial gainful activity. . . . [T]he [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them." Walker v. Bowen, 889 F.2d 47, 50 (4th Cir.1989) (citations omitted). Where a claimant has more than one impairment, the ALJ is required to consider the combined effect of these impairments under the statutory and regulatory scheme for making disability determinations and to "'adequately explain his or her evaluation of the combined effects of [the] impairments.'" Reid v. Comm'r of Soc. Sec., 769 F.3d 861, 2014 WL 4555249, at *4-5 (4th Cir. 2014) (quoting Walker, 889 F.2d at 50); see also Rabon v. Astrue, Case No. 4:08-cv-03442-GRA, 2010 WL 923857 (D.S.C. Mar. 9, 2010) (requiring remand when the ALJ did not consider severe and non-severe impairments in combination). The ALJ must consider the combined effect of the Plaintiff's multiple impairments "throughout the disability determination process." 20 C.F.R. § 404.1523; see also Fleming v. Barnhart, 284 F. Supp. 2d 256, 270 (D. Md. Sep. 5, 2003) ("The ALJ is required to assess the combined effect of a claimant's impairments throughout the five-step analytical process.").
Here, the ALJ did not indicate in his decision that he evaluated the combined effect of Plaintiff's impairments in assessing her RFC. (R. at 17-27.) He did not even include the "boilerplate" language indicating that he considered the combined effects of Plaintiff's impairments. While the ALJ did discuss the effect of each impairment separately, there is no indication that he "considered whether Plaintiff's RFC had been further reduced by the combined effect of all of her severe and non-severe impairments." Broadwater v. Berryhill, Case No. 1:17-cv-526-RMG-SVH, 2017 WL 5514194, at *14-15 (D.S.C. Nov. 1, 2017), adopted by, 2017 WL 5514703 (D.S.C. Nov. 16, 2017) (finding the ALJ erred where he failed to adequately consider the combined effects of the claimant's impairments).
While such an error may be harmless in some instances, the undersigned cannot find that error harmless here. Cf. Cox v. Colvin, Case No. 9:13-cv-2666-RBH, 2015 WL 1519763, at *7 (D.S.C. Mar. 31, 2015) ("Here, the decision as a whole indicates that the ALJ performed an adequate combined effect analysis of Plaintiff's multiple impairments."); Brown v. Astrue, Case No. 0:10-cv-1584-RBH, 2012 WL 3716792, at *6 (D.S.C. Aug. 28, 2012) ("Accordingly, 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."). The record contains evidence that suggests Plaintiff's depression and anxiety were worsened by her gastroparesis and vice versa. (R. at 18, 235, 496.) Because the ALJ did not explain how the RFC addressed the combined effect of Plaintiff's impairments, the undersigned is left to guess as to how this evidence factored into the ALL's RFC assessment. See Mascio, 780 F.3d at 637 (refusing to hold that ALJ's lack of stated reasoning constituted harmless error "[b]ecause we are left to guess about how the ALJ arrived at his conclusions" regarding an RFC assessment). "The ALJ's failure to provide his reasoning is an error that prevents this Court from engaging in meaningful judicial review." Coulter v. Berryhill, Case No. 8:16-cv-430-PMD-JDA, 2017 WL 1352343, at *3 (D.S.C. Apr. 13, 2017) (citing Patterson v. Comm'r of Soc. Sec. Admin., 846 F.3d 656, 662 (4th Cir. 2017) ("We cannot fill in the blanks for the ALJ in the first instance."); Saxon v. Astrue, 662 F. Supp. 2d 471, 480 (D.S.C. 2009) (remanding case for "proper consideration" of combined effects of impairments where ALJ's failure to adequately explain his evaluation of those effects prevented judicial review)). Accordingly, the undersigned cannot find that the ALJ's decision is supported by substantial evidence. See, e.g., Hopkins v. Berryhill, Case No. 1:17-cv-143-BHH-SVH, 2017 WL 6398181, at *20 (D.S.C. Nov. 21, 2017), adopted by, 2017 WL 6366879 (D.S.C. Dec. 12, 2017) ("the court cannot determine that the Commissioner's decision is supported by substantial evidence" where "the ALJ failed to consider whether Plaintiff's RFC had been further reduced by the combined effect of all his severe and non-severe impairments"). Plaintiff is therefore entitled to have her claim remanded for proper consideration of the combined effects of her impairments.
B. Remaining Allegations of Error
The undersigned does not address Plaintiff's remaining allegation that the ALJ erred in his assessment of opinions from Plaintiff's treating physicians and other sources. (Dkt. No. 13.) In light of the undersigned's recommendation that this matter be remanded for further consideration as discussed above, the undersigned need not address this issue as it may be rendered moot on remand. However, as part of the overall reconsideration of the claim upon remand, the ALJ should, if necessary, also take into consideration the additional allegation of error raised by the Plaintiff.
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be REMANDED for a new hearing consistent with this Report & Recommendation.
IT IS SO RECOMMENDED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE
December 10, 2018
Charleston, South Carolina