Opinion
Civil Action 6:20-2686-TMC-KFM
06-30-2021
Dawn Clemons, Plaintiff, v. Andrew M. Saul, Commissioner of Social Security, Defendant.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States Magistrate Judge
This case is before the court for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.), concerning the disposition of Social Security cases in this District, and 28 U.S.C. § 636(b)(1)(B). The plaintiff brought this action pursuant to Sections 205(g) and 1631(c)(3) of the Social Security Act, as amended (42 U.S.C. §§ 405(g) and 1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security denying her claims for disability insurance benefits and supplemental security income benefits under Titles II and XVI of the Social Security Act.
A report and recommendation is being filed in this case, in which one or both parties declined to consent to disposition by the magistrate judge.
ADMINISTRATIVE PROCEEDINGS
The plaintiff filed applications for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) benefits on November 30, 2016, and December 16, 2016, alleging that she became unable to work on October 1, 2014. The applications were denied initially and on reconsideration by the Social Security Administration. On October 27, 2017, the plaintiff requested a hearing. The administrative law judge (“ALJ”), before whom the plaintiff and Janette Clifford, an impartial vocational expert (“VE”), appeared on June 27, 2019, considered the case de novo, and on August 21, 2019, found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 25-37). The ALJ's finding became the final decision of the Commissioner of Social Security when the Appeals Council denied the plaintiff's request for review on June 1, 2020 (Tr. 1-3). The plaintiff then filed this action for judicial review (doc. 1).
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 meets the insured status requirements of the Social Security Act through March 31, 2017.
(2) The claimant has not engaged in substantial gainful activity since October 1, 2014, the alleged onset date (20 C.F.R. §§ 404.1571 et seq., and 416.971 et seq.).
(3) The claimant has the following severe impairments: systemic lupus erythematosus, affective disorder, anxiety disorder, and status post chronic infarcts and white matter ischemic changes to the brain (20 C.F.R. §§ 404.1520(c) and 416.920(c)).
(4) The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
(5) After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) except: frequent climbing of ramps and stairs; occasional climbing of ladders, ropes, and scaffolds; frequent balancing, stooping, kneeling, crouching, and crawling; limited to simple, routine tasks and time off task could be accommodated by normal breaks.
(6) The claimant is unable to perform any past relevant work (20 C.F.R. §§ 404.1565 and 416.965).
(7) The claimant was born on September 28, 1968, and was 46 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date. The claimant subsequently changed age category to closely approaching advanced age (20 C.F.R. §§ 404.1563 and 416.963).
(8) The claimant has at least a high school education and is able to communicate in English (20 C.F.R. §§ 404.1564 and 416.964).
(9) Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled, ” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 C.F.R. Part 404, Subpart P, Appendix 2).
(10) Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 C.F.R. §§ 404.1569, 404.1569a, 416.969, and 416.969a).
(11) The claimant has not been under a disability, as defined in the Social Security Act, from October 1, 2014, through the date of this decision (20 C.F.R. §§ 404.1520(g) and 416.920(g)).
The only issues before the court are whether proper legal standards were applied and whether the final decision of the Commissioner is supported by substantial evidence.
APPLICABLE LAW
Under 42 U.S.C. § 423(d)(1)(A), (d)(5) and § 1382c(a)(3)(A), (H)(I), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an “inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 20 C.F.R. §§ 404.1505(a), 416.905(a).
To facilitate a uniform and efficient processing of disability claims, the Social Security 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 that meets or medically equals an impairment contained in the Listing of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1, (4) can perform his past relevant work, and (5) can perform other work. Id. §§ 404.1520, 416.920. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. §§ 404.1520(a)(4), 416.920(a)(4).
A claimant must make a prima facie case of disability by showing she is unable to return to her past relevant work because of her impairments. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). Once an individual has established a prima facie case of disability, the burden shifts to the Commissioner to establish that the plaintiff can perform alternative work and that such work exists in the national economy. Id. (citing 42 U.S.C. § 423(d)(2)(A)). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Id. at 191-92.
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings “are supported by substantial evidence and were reached through application of the correct legal standard.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). “Substantial evidence” means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Id. In reviewing the evidence, the court may not “undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Id. Consequently, even if the court disagrees with Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
ANALYSIS
The plaintiff was 46 years old on her alleged disability onset date (Tr. 35). She alleged disability due to lupus, high blood pressure, diabetes, anxiety disorder, and clotting in her lungs (Tr. 361). She has a high school education and a two-year associate's degree and prior work as a packer and parts inspector (T r. 54-56, 65, 69-70).
The plaintiff argues the ALJ failed to properly consider Listing 14.02 (systemic lupus erythematosus (“SLE”)) (doc. 19 at 34-37). She asserts the ALJ both failed to properly explain his determination and erred in finding her impairments did not meet or equal Listing 14.02 (id.). The Commissioner contends the ALJ properly found the plaintiff's impairments did not meet or medically equal a listed impairment (doc. 20 at 18-35).
When a claimant's impairment or combination of impairments meets or equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1, the claimant is deemed disabled and no further analysis is required. See 20 C.F.R. §§ 404.1520(d), 416.920(d). To determine whether a claimant's impairments meet or equal a listed impairment at step three of the sequential analysis, the ALJ must identify the relevant listed impairments and compare the listing criteria with the evidence of the claimant's symptoms. See Peck v. Colvin, C/A No. 8:12-cv-02594-DCN, 2014 WL 994925, at *12 (D.S.C. Mar. 13, 2014). “In cases where there is ample factual support in the record for a particular listing, the ALJ must provide a full analysis to determine whether the claimant's impairment meets or equals the listing.” Id. (quoting Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986) (internal quotation marks omitted)). “Without such an explanation, it is simply impossible to tell whether there was substantial evidence to support the determination.” Cook, 783 F.2d at 173.
Listing 14.02 of the Administration's Listing of Impairments defines SLE as follows:
a chronic inflammatory disease that can affect any organ or body system. It is frequently, but not always, accompanied by constitutional symptoms or signs (severe fatigue, fever, malaise, involuntary weight loss). Major organ or body system involvement can include: Respiratory (pleuritis, pneumonitis), cardiovascular (endocarditis, myocarditis, pericarditis, vasculitis), renal (glomerulonephritis), hematologic (anemia, leukopenia, thrombocytopenia), skin (photosensitivity), neurologic (seizures), mental (anxiety, fluctuating cognition (“lupus fog”), mood disorders, organic brain syndrome, psychosis), or immune system disorders (inflammatory arthritis). . . .20 C.F.R. Pt. 404, Subpt. P, App. 1, § 14.00(D)(1)(a). To establish disability under Listing 14.02, the claimant must show evidence of SLE as described above and:
A. Involvement of two or more organs/body systems, with:
1. One of the organs/body systems involved to at least a moderate level of severity; and
2. At least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss).20 C.F.R. Pt. 404, Subpt. P, App. 1, § 14.02A.
Under § 14.02B, a claimant may also establish disability by showing repeated manifestations of SLE, with at least two of the constitutional symptoms or signs and a marked limitation in activities of daily living, maintaining social functioning, or completing tasks in a timely manner due to deficiencies in concentration, persistence, or pace. Id. § 14.02B. However, the plaintiff only alleges improper consideration of § 14.02A.
The ALJ considered Listing 14.02 at step three of the sequential evaluation and found:
The claimant does not meet or equal a listing. No medical opinion is of record to support such a finding, nor does the clinical evidence of record as a whole support such a finding. No treating or examining physician has mentioned findings, either singularly or in combination, equivalent in severity to the criteria of any listed impairment. Additionally, the claimant has not alleged meeting or equaling any listing.
....
The undersigned considered listing 14.02 for the evaluation of [SLE]. The evidence does [not demonstrate involvement of two or more body systems with one to at least a moderate degree of severity coupled with two of the constitutional symptoms or signs nor repeated manifestations of lupus coupled with a marked limitation in one of the following: activities of daily living, social functioning or completing tasks in a timely manner (9F/10).(Tr. 28-29 (footnote added)).
This section of the ALJ's decision appears to contain a typographical error, omitting the word “not.”
The plaintiff contends the record evidences the involvement of two or more organs or body systems and at least two of the constitutional symptoms or signs (doc. 19 at 36-37). The plaintiff further asserts her organ or body system involvement clearly reached a moderate level of severity because she required hospitalization (id. at 37). The undersigned agrees. Indeed, the ALJ's two-sentence discussion of Listing 14.02 cites to only one page of the almost 2, 000-page record (see Tr. 29 (citing “9F/10”)). That citation is to a rheumatology history and physical conducted on May 21, 2016, while the plaintiff was hospitalized (T r. 983). During the consult, the plaintiff reported her lupus mainly manifested as joint pain, rashes, alopecia, photosensitivity, and oral ulcers and denied any kidney, pulmonary, or cardiac disease (Tr. 983 (the “subjective” portion of the report)). However, the ALJ's reliance on this one page of the record evidence appears in error, as the plaintiff was noted to be a poor historian (see e.g., Tr. 1640), and during this consultation she had been admitted to the hospital for confusion (Tr. 981). The Commissioner argues that the ALJ was not required to provide a more detailed discussion because the record lacked “ample evidence” the plaintiff met Listing 14.02, evidence “strongly suggesting” the plaintiff met Listing 14.02, or “inconsistent evidence” regarding listing-level severity SLE (doc. 20 at 20). However, because the ALJ identified the listing as relevant to the plaintiff's case, he was required to provide more than a perfunctory analysis.
However, remand is not required when an ALJ fails to explain why an impairment does not meet or equal a listing so “long as the overall conclusion is supported by the record.” Reynolds v. Berryhill, C/A No. 6:18-cv-00841-DCC-KFM, at *12 (D.S.C. Mar. 12, 2019), R&R adopted by 387 F.Supp.3d 642 (D.S.C. 2019) (internal citation and quotation marks omitted). The undersigned cannot say that is the case here. With respect to organ or body system involvement, the medical record reveals evidence of the plaintiff's skin, pulmonary, cardiovascular, and mental system disorders. For example, while there are some areas in the record where the plaintiff did not have a rash or no rash was noted in the examination findings (Tr. 468, 475, 555-57, 665, 686, 732, 813, 826, 836, 861, 901, 943, 1457, 1468, 1479, 1503, 1574, 1596, 1642, 1650-51, 1657, 1662, 1684, 1696, 1735, 1744, 1775, 1819-20, 1832, 1882, 1893), the record consistently noted rashes, ulcerations, and lesions on the plaintiff's skin relating to her SLE (see Tr. 605, 663, 654, 661, 671, 750, 790-91, 832, 860-61, 877, 932, 953, 1027, 1273, 1715-17). There is also ample record evidence of pulmonary and cardiovascular system disorders, including pulmonary embolisms, chest pain, tachycardia, and pulmonary hypertension, which are noted secondary to the plaintiff's SLE (Tr. 459-62, 555-60, 578-603, 649, 654, 659, 668-73, 728, 767-72, 782-87, 825-56, 860-73, 876-77, 887-88, 899-914, 1141-47, 1309-10, 1549-56, 1779, 1818-20, 1870-73). The record evidence also noted anxiety, depression, memory loss, confusion, an altered mental state, and, on at least one occasion, suicidal thoughts (Tr. 121, 123, 636, 663, 668-69, 673, 942, 974-88, 1037-41, 1201, 1213-15, 1225-34, 1270, 1280-83, 1290-91, 1303, 1307, 1312, 1339, 1580-92, 1640-41, 1684, 1686, 1728-47, 1779, 1870). As to constitutional symptoms or signs, the record evidence noted fatigue (Tr. 636, 728, 732, 825, 943, 1573, 1640, 1870), fever (temperatures between 99.1 and 99.7) (Tr. 731, 742, 813, 861, 953, 1436, 1442, 1453, 1504, 1519, 1650, 1814), and general complaints of not feeling well (Tr. 952, 974, 1435, 1584).
Despite the foregoing, the Commissioner argues that the remainder of the decision fills the logical gaps in the listing analysis (doc. 20 at 20). While “[t]here is no requirement . . . that an ALJ provide an exhaustive point-by-point breakdown of every listed impairment, ” his “decision as a whole” must provide a “coherent basis” for his step three determination. Keene v. Berryhill, 732 Fed.Appx. 174, 177 (4th Cir. 2018). Here, however, even considering the entirety of the ALJ's decision, the undersigned cannot piece together a coherent basis for the determination regarding Listing 14.02. For example, the ALJ noted that the RFC accounted for the plaintiff's impairments and that further limitations were not required because the plaintiff was able to care for her elderly mother and live independently. The ALJ also noted:
Although the claimant alleges an inability to work due to confusion, the few episodes of confusion in the record are described as mild or clearing up when the claimant resumes her prescribed medications. At other appointments, the claimant acted confused, but examiners did not believe she was putting forth adequate effort and had concerns over the validity of the results.(Tr. 33 (citations omitted)). The ALJ's mental RFC analysis necessarily focused on the functional limitations produced by those impairments. However, the term “severe, ” as used in Listing 14.02 refers to “medical severity as used by the medical community” rather than an impairment's impact on a claimant's functional abilities. See 20 C.F.R. Pt. 404, subpt. P, app. 1, § 14.00C. Thus, it is unclear whether the ALJ considered the plaintiff's mental and neurologic symptoms in connection with the Listing 14.02 analysis and, if he did, whether he found them moderately severe in that context. Moreover, the ALJ did not discuss the plaintiff's repeated complaints of severe chest pain, numerous EKGs and echocardiograms, or extensive history of hypertension, nor did the ALJ's RFC explanation detail the plaintiff's skin manifestations, fever, or malaise. Indeed, the ALJ only referenced the plaintiff's alleged fatigue in summarizing the plaintiff's December 2018 hospitalization (see Tr. 33).
As such, without a meaningful explanation by the ALJ setting forth how he considered the record evidence in the context of Listing 14.02, the court cannot determine whether the ALJ's decision was supported by substantial evidence. See, e.g., Owens v. Saul, C/A No. 8:19-01180, 2020 WL 1067499, at *2 (D.S.C. Feb. 14, 2020), R&R adopted by 2020 WL 1065919 (D.S.C. March 5, 2020) (“The ALJ's conclusory finding at Step 3 and her failure to analyze the [relevant] record evidence in the context of Listing 14.02A precludes meaningful judicial review of this issue.”); Reynolds v. Berryhill, 387 F.Supp.3d 642, 644 (D.S.C. May 21, 2019) (“Courts have repeatedly held that ‘[i]n considering whether a claimant's condition meets or equals a listed impairment, and ALJ must discuss the listing by name and offer more than a perfunctory analysis of the listing.'”) (quoting Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004)). Accordingly, the undersigned recommends remand for further consideration of Listing 14.02A. See Mascio v. Colvin, 780 F.3d 632, 637 (4th Cir. 2015) (noting that “remand is necessary” because the court is “left to guess about how the ALJ arrived at his conclusions”).
CONCLUSION AND RECOMMENDATION
As such, based upon the foregoing, this court recommends that the Commissioner's decision be reversed under sentence four of 42 U.S.C. § 405(g), with a remand of the cause to the Commissioner for further proceedings as discussed above.
IT IS SO RECOMMENDED.
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 300 East Washington Street Greenville, South Carolina 29601
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).