Opinion
Civil Action 4:22-cv-04333-MGL-TER
09-20-2023
Charles C. Cross, Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III, UNITED STATES MAGISTRATE JUDGE
This is an action brought 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, denying Plaintiff's claim for disability insurance benefits(DIB) and supplemental security income (SSI). The only issues before the Court are whether the findings of fact are supported by substantial evidence and whether proper legal standards have been applied.
I. RELEVANT BACKGROUND
A. Procedural History
Plaintiff filed an application for DIB and SSI in August 2020, alleging disability beginning July 17, 2020. (Tr. 17). His claims were denied initially and upon reconsideration. Thereafter, Plaintiff filed a request for a hearing. A hearing was held in January 2022, at which time Plaintiff and a vocational expert (VE) testified. The Administrative Law Judge (ALJ) issued an unfavorable decision on January 18, 2022, finding that Plaintiff was not disabled within the meaning of the Act. (Tr. 17-26). Plaintiff submitted additional evidence to the Appeals Council of a statement from treating cardiologist Dr. Brabham. (Tr. 8). Plaintiff filed a request for review of the ALJ's decision, which the Appeals Council denied in September 2022, making the ALJ's decision the Commissioner's final decision. (Tr.1-3). Plaintiff filed an action in this court in November 2022. (ECF No. 1).
B. Plaintiff's Background
Plaintiff was born in March 1974 and was forty-six years old on the alleged onset date. (Tr. 25). Plaintiff had past relevant work as a groundskeeper and drywall applicator. (Tr. 24). Plaintiff alleges disability originally due to congestive heart failure with implanted defibrillator, flat feet, bone on bone, and shortness of breath. (Tr. 55). Pertinent medical records will be discussed under the relevant issue headings.
C. The ALJ's Decision
In the decision of January 18, 2022, the ALJ made the following findings of fact and conclusions of law (Tr. 17-26):
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2021.
2. The claimant has not engaged in substantial gainful activity since July 17, 2020, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: congestive heart failure with implantable cardioverter defibrillator (ICD) in situ; bilateral lower extremity edema; cardiomyopathy; hypertension; and obesity (20 CFR 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 CFR Part 404, Subpart P, Appendix 1 (20 CFR 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 sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except can stand and walk for up to 4 hours in an 8-hour workday; occasionally climb ramps or stairs, but never climb ladders, ropes, or scaffolds; occasionally balance, stoop, kneel,
crouch, and crawl; no exposure to unprotected heights, moving mechanical parts, humidity, extreme cold, and extreme heat; will be off task no more than 5 percent of the day to allow for elevation of his legs.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on March 6, 1974 and was 46 years old, which is defined as a younger individual age 45-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
8. The claimant has a limited education (20 CFR 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 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569a, 416.969, and 416.969a).
11. The claimant has not been under a disability, as defined in the Social Security Act, from July 17, 2020, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).
II. DISCUSSION
All three of Plaintiff's arguments-about additional opinion evidence, the RFC, and the subjective symptom evaluation-are related to the elevation of Plaintiff's legs. Plaintiff argues the ALJ failed to explain how the ALJ arrived at the RFC conclusion that Plaintiff would be off task 5% of the workday for leg elevation. (ECF No. 23 at 16-17). Plaintiff argues remand is required for the consideration of new opinion evidence from treating cardiologist Dr. Brabham that was submitted to the Appeals Council. (ECF No. 23 at 9-13). Plaintiff argues the ALJ did not perform a function-by-function analysis. (ECF No. 23 at 15). Plaintiff argues the ALJ erred in the subjective symptom evaluation and did not explain which allegations were found insufficient where Plaintiff's allegations of leg elevation had at least not been fully rejected. (ECF No. 23 at 17-20). The Commissioner argues that the ALJ's decision is supported by substantial evidence.
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 the “need for efficiency” in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity (“SGA”); (2) whether he 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 him from doing SGA. See 20 C.F.R. § 404.1520. These considerations are sometimes referred to as the “five steps” of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).
The Commissioner's regulations include an extensive list of impairments (“the Listings” or “Listed impairments”) the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. § 404.1525. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, he will be found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that his impairments match several specific criteria or be “at least equal in severity and duration to [those] criteria.” 20 C.F.R. § 404.1526; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's past relevant work to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. § 404.1520(h).
A claimant is not disabled within the meaning of the Act if he can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, § 404.1520(a), (b); Social Security Ruling (“SSR”) 82-62 (1982). The claimant bears the burden of establishing his 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 he 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 id.; 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). Substantial evidence as a threshold is “not high;” “[u]nder the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains “sufficien[t] evidence” to support the agency's factual determinations.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019).
B. ANALYSIS RFC
Plaintiff argues the ALJ failed to explain how the ALJ arrived at the RFC conclusion that Plaintiff would be off task 5% of the workday for leg elevation. (ECF No. 23 at 16-17).
An adjudicator is solely responsible for assessing a claimant's RFC. 20 C.F.R. § 416.946(c). In making that assessment, he must consider the functional limitations resulting from the claimant's medically determinable impairments. Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184, at *2. This ruling provides that: “The RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).” SSR 96-8, *7. “The adjudicator must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved.” Id. Additionally, “ ‘a necessary predicate to engaging in a substantial evidence review is a record of the basis for the ALJ's ruling,' including ‘a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence.' ” Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013)). The ALJ considers the evidence in the record as a whole when analyzing Plaintiff's claims, as does this court when reviewing the ALJ's decision. See Craig, 76 F.3d at 595.
After finding bilateral lower extremity edema was a severe impairment and would significantly limit Plaintiff's ability to perform basic work activities, the ALJ found an RFC of “will be off task no more than 5 percent of the day to allow for elevation of his legs.” (Tr. 21). After the five percent off task finding, except for a repeated conclusion of the entire RFC, there is no mention of “off task” in the RFC narrative, much less an explanation. (Tr. 23). There is no discussion of how the off task percentage was determined.
For informative purposes, the state agency consultants' opinions did not discuss an off task percentage. (Tr. 73-76, 89-93).
There is a plethora of case law on off task percentages and what is required to support an ALJ's finding of an off task percentage. All RFC determinations are required to be supported by an explanation from the evidence to the conclusion. An ALJ's RFC “assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).” Mascio, 780 F.3d at 636 (citing SSR 96-8p). This requires that the ALJ “both identify evidence that supports his conclusion and ‘build an accurate and logical bridge from [that] evidence to his conclusion.'” Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018)(quoting Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016)).
Where an ALJ renders a specific off task percentage conclusion, such as 5%, the “ALJ must explain and support that conclusion with substantial evidence;” “[m]any courts in the Fourth Circuit... require the ALJ to explain how he or she arrived at the off-task percentage.” Berry v. Comm'r, 2022 WL 3354778, at *2 (W.D. N.C. Aug. 12, 2022)(collecting cases extensively)(finding that where the ALJ never discussed the percentage anywhere else other than the conclusory determination and the Commissioner generally argued the RFC was based on record evidence but did not argue how the ALJ explained arrival at the percentage, it was impossible for the court to determine whether the RFC was supported by substantial evidence). “In the absence of explanation, the Court is left to pontificate on where the ALJ came up with the nine-percent figure and why this limitation adequately accounts for Plaintiff's limitations. This is the exact type of guesswork that Mascio and its progeny prohibit this Court from doing.” Kennedy v. Berryhill, 2019 WL 3664936, at *4 (W.D. N.C. Aug. 6, 2019); Bibey v. Saul, 2020 WL 7694552, at *4 (D. Md. Dec. 28, 2020)(“the decision is immutably flawed in describing how the ALJ arrived the five percent limitation based on the evidence presented. Where, as here, the off task calculation has the potential to be work preclusive”); Keith L. v. Saul, 2021 WL 1723084, at *2 (D. Md. Apr. 30, 2021)(“Without a narrative explanation of how the evidence supports the ALJ's seemingly arbitrary conclusion that plaintiff would be off-task five percent of the workday, the Court cannot engage in meaningful substantial evidence review.”); Beth Ann O. v. Kijakazi, 2022 WL 3360277, at *3 (D. Md. Aug. 15, 2022)(rejecting Commissioner's reliance on there being no requirement to articulate a percentage and noting that Fourth Circuit has regularly held a failure to explain how arrived at the specific percentage found precludes meaningful review).
Further, while a specific percentage limitation may be helpful in accounting for limitations from severe impairments, it is error to fail to explain the source of finding a specific percentage and remand was necessary for an explanation that allowed for meaningful judicial review. Oliver v. Saul, No. 5:19-cv-02974-RMG-KDW, 2021 WL 431735, at *16 (D.S.C. Jan. 26, 2021), report and recommendation adopted, 2021 WL 428849 (D.S.C. Feb. 8, 2021); Roof v. Saul, No. 5:19-cv-1571-MGL-KDW, 2020 WL 3549206, at *10 (D.S.C. June 23, 2020), report and recommendation adopted, 2020 WL 3548814 (D.S.C. June 30, 2020). In a case where the ALJ explained acceptance of one particular percentage and rejection of a higher percentage from the record evidence, the court was able to review such finding. Brailsford v. Saul, No. CV 1:20-45-TLW-SVH, 2020 WL 8455073, at *18 (D.S.C. Aug. 27, 2020), report and recommendation adopted, 2021 WL 165087 (D.S.C. Jan. 19, 2021).
Another case is particularly helpful as to off task and leg elevation:
In its briefing the Commissioner sketches the ALJ's thorough analysis of the case as a whole. (ECF No. 16-1 at 13). Even so, the ALJ failed to explain how he reached the conclusion of 10%. This Court is not in a position to determine, in the first instance, whether Plaintiff would be off-task 10%, 15 %, 5% or 13 % of the time. Kane, 2018 WL 2739961, at *2. Given the VE's testimony, rendering the percentage of time off-task to be work-preclusive, the ALJ failed to fulfill the duty of explanation on this issue, and remand is warranted. See Sheila K v. Comm'r, 2018 WL 2739961, at *1 (D. Md. May 14, 2018) (assigning a precise percentage of time off-task constituted a critical part of the disability determination); Petry v. Comm'r, Soc. Sec. Admin., 2017 WL 680379, at *2 (D. Md. Feb. 21, 2017)(requiring specific explanation as to how the ALJ's percentage was calculated, as one percent increase could preclude competitive employment). Absent further explanation, the Court is unable to ascertain how the ALJ determined the ten percent figure and how that determination impacted the RFC assessment.Patricia W. v. Berryhill, 2019 WL 6790512, at *3 (D. Md. Dec. 12, 2019)(emphasis added)(where the VE testified that leg elevation of 4 hours a day would be more than the acceptable 10% off task).
The VE here testified that if seated, a person could remain on task fully at a maximum elevation height of 12 inches from the floor. (Tr. 51). The VE testified the general maximum time off task tolerated by employers was 15%, but for the jobs opined, the jobs would still be available only at 9% or less off task. (Tr. 50). The ALJ made no findings as to elevation height in the RFC.
The ALJ cited exams of both edema and no edema, citing to Exhibits 11F/3, 2F/6, 6F/15, 10F/3, which are NP Odom's notes, Dr. Tedford's notes, NP Ralph's notes, and Dr. Soto's notes. (Tr. 20, 22, 23, 1376, 344, 872, 1371). In July 2020, Plaintiff presented to the hospital with edema. (Tr. 326). Upon exam, in August 2020, September 2020, and January 2021, Plaintiff had no edema. (Tr. 344, 863, 926). In May 2021, Plaintiff had an increase of edema “lately as he ran out of his diuretic.” (Tr. 934, 936). In November 2021, Plaintiff examined with trace edema. (Tr. 1376). The provider noted: “We discussed conservative management of lower extremity edema with compression stockings, elevations, and low sodium diet. Patient will continue to monitor for symptoms concerning for overload including worsening lower extremity edema...” (Tr. 1379). The ALJ cited chest imaging of mild interstitial edema, citing Exhibits 1F/4, 1F/9, and 4F/9, which are hospital records. (Tr. 23, 329, 334, 360). The ALJ cited Plaintiff's allegations of elevation due to swelling a total of 5.5 hours rotating 15-20 minutes at a time. (Tr. 22, 41-42). Evidence of record could support multiple different time off task percentage conclusions; without explanation, the court is not able to meaningfully review the finding.
While the ALJ here cited a plethora of abnormal and normal evidence as to edema and leg elevation and recited Plaintiff's allegations as to elevation, the ALJ never provided an explanation of how he arrived at 5%, or 24 minutes off task of a work day. The court cannot engage in meaningful review where the ALJ only provides a conclusion of five percent off task. Remand is appropriate where inadequacies in the ALJ's analysis frustrate meaningful review. Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015).
The leg elevation issue is directly related to the other two briefed issues, the subjective symptom evaluation and the additional treating specialist's opinion submitted to the Appeals Council, which stated off task at least 20% of the work day and that occasional edema required periodical elevation of legs throughout the day. (Tr. 8).
Proper explanation of this issue may have a significant impact on the Commissioner's determination at other Steps. Upon remand, the ALJ should take into consideration Plaintiff's briefed allegations of error, and support findings with citation to substantial evidence and provide logical explanation from the evidence to the ultimate conclusions. See Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015).
CONCLUSION
In conclusion, it may well be that substantial evidence exists to support the Commissioner's decision in the instant case. The court cannot, however, conduct a proper review based on the record presented. Accordingly, 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 Sections 205(g) and 1631(c)(3) of the Social Security Act, 42 U.S.C. Sections 405(g) and 1338(c)(3), it is recommended that the Commissioner's decision be reversed and that this matter be REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings in accordance with this opinion.