Opinion
Civil Action 8:22-cv-01051-DCC-JDA
01-17-2023
Cynthia Ann M., Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin, United States Magistrate Judge
This matter is before the Court for a Report and Recommendation pursuant to Local Civil Rule 73.02(B)(2)(a), D.S.C., and 28 U.S.C. § 636(b)(1)(B). Plaintiff brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the Commissioner of Social Security (“the Commissioner”), denying Plaintiff's claim for supplemental security income (“SSI”). For the reasons set forth below, it is recommended that the decision of the Commissioner be reversed and remanded for administrative action consistent with this recommendation, pursuant to sentence four of 42 U.S.C. § 405(g).
A Report and Recommendation is being filed in this case, in which one or both parties declined to consent to disposition by a magistrate judge.
Section 1383(c)(3) provides, “The final determination of the Commissioner of Social Security after a hearing under paragraph (1) shall be subject to judicial review as provided in section 405(g) of this title to the same extent as the Commissioner's final determinations under section 405 of this title.” 42 U.S.C. § 1383(c)(3).
PROCEDURAL HISTORY
In February 2019, Plaintiff filed an application for SSI, alleging a disability onset date of October 1, 2016. [R. 210-15.] The claim was denied initially and upon reconsideration by the Social Security Administration (“the Administration”). [R. 80-83; 94-96]. Plaintiff requested a hearing before an administrative law judge (“ALJ”), and, on February 11, 2021, ALJ Debra Boudreau conducted a de novo telephonic hearing in Colorado Springs, Colorado on Plaintiff's claim. [R. 31-54.]
The application is dated February 1, 2019, but the Decision by the Administrative Law Judge indicates that Plaintiff protectively filed her SSI application on August 16, 2018. [R. 12.]
The ALJ issued a decision on March 3, 2021, finding Plaintiff not disabled under the Social Security Act (?the Act”). [R. 12-21.] At Step 1, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since August 16, 2018, the alleged onset date. [R. 14, Finding 1.] At Step 2, the ALJ found Plaintiff had the following severe impairments: depression, anxiety, and PTSD. [R. 14, Finding 2.] The ALJ also noted Plaintiff had the following non-severe impairments: degenerative disc disease of the cervical spine, GERD, IBS, hernia, and headaches. [R. 14-15.] At Step 3, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 15, Finding 3.]
The five-step sequential analysis used to evaluate disability claims is discussed in the Applicable Law section, infra.
Before addressing Step 4, Plaintiff's ability to perform her past relevant work, the ALJ found Plaintiff retained the following residual functional capacity (?RFC”):
[T]he claimant has the [RFC] to perform a full range of work at all exertional levels but with the following nonexertional limitations: the claimant is able to perform a full range of work at all exertional levels, can understand and remember simple repetitive tasks that can be learned by demonstration on the job in about 30 days, can sustain concentration, persistence, and pace for these tasks over a typical workday and work week, can tolerate supervision, is able to interact occasionally with the public and co-workers, but should avoid team tasks or tasks that require collaborative effort, can tolerate occasional routine-type task changes, and can travel and recognize and avoid work hazards.[R. 16, Finding 4.] Based on this RFC, the ALJ determined at Step 4 that Plaintiff was unable to perform her past relevant work. [R. 19, Finding 5.] However, considering Plaintiff's age, education, work experience, RFC, and the testimony of the vocational expert (“VE”), the ALJ found that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. [R. 19-20, Finding 9.] Thus, on that basis, the ALJ determined that Plaintiff had not been under a disability as defined in the Act from August 16, 2018, through the date of the decision. [R. 20, Finding 10.]
Plaintiff requested Appeals Council review of the ALJ's decision but the Council declined review. [R. 1-6.] Plaintiff filed this action for judicial review on April 1, 2022. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff argues that this Court should reverse the ALJ's decision and remand this case for further proceedings or for an award of benefits. [Doc. 15.] In particular, Plaintiff argues the ALJ (1) failed to resolve conflicts between the testimony of the VE and the RFC, (2) made errors in evaluating the severity of Plaintiff's impairments, (3) made errors in evaluating the medical evidence, and (4) had no legal authority because she was not properly appointed. [Id. at 3-17.]
The Commissioner, on the other hand, contends that substantial evidence supports the ALJ's decision. [Doc. 16.]
STANDARD OF REVIEW
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla-i.e., the evidence must do more than merely create a suspicion of the existence of a fact and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) (“Substantial evidence, it has been held, is evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is ‘substantial evidence.'”).
Where conflicting evidence “allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ),” not on the reviewing court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991) (stating that where the Commissioner's decision is supported by substantial evidence, the court will affirm, even if the reviewer would have reached a contrary result as finder of fact and even if the reviewer finds that the evidence preponderates against the Commissioner's decision). Thus, it is not within the province of a reviewing court to determine the weight of the evidence, nor is it the court's function to substitute its judgment for that of the Commissioner so long as the decision is supported by substantial evidence. See Bird v. Comm'r, 699 F.3d 337, 340 (4th Cir. 2012); Laws, 368 F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).
The reviewing court will reverse the Commissioner's decision on plenary review, however, if the decision applies incorrect law or fails to provide the court with sufficient reasoning to determine that the Commissioner properly applied the law. Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980); see also Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner's decision “is in clear disregard of the overwhelming weight of the evidence, Congress has empowered the courts to modify or reverse the [Commissioner's] decision ‘with or without remanding the cause for a rehearing.'” Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971) (quoting 42 U.S.C. § 405(g)). Remand is unnecessary where “the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no purpose.” Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974).
The court may remand a case to the Commissioner for a rehearing under sentence four or sentence six of 42 U.S.C. § 405(g). Sargent v. Sullivan, 941 F.2d 1207 (4th Cir. 1991) (unpublished table decision). To remand under sentence four, the reviewing court must find either that the Commissioner's decision is not supported by substantial evidence or that the Commissioner incorrectly applied the law relevant to the disability claim. See, e.g., Jackson v. Chater, 99 F.3d 1086, 1090-91 (11th Cir. 1996) (holding remand was appropriate where the ALJ failed to develop a full and fair record of the claimant's residual functional capacity); Brenem v. Harris, 621 F.2d 688, 690-91 (5th Cir. 1980) (holding remand was appropriate where record was insufficient to affirm but was also insufficient for court to find the claimant disabled). Where the court cannot discern the basis for the Commissioner's decision, a remand under sentence four is usually the proper course to allow the Commissioner to explain the basis for the decision or for additional investigation. See Radford v. Comm'r, 734 F.3d 288, 295 (4th Cir. 2013);see also Smith v. Heckler, 782 F.2d 1176, 1181-82 (4th Cir. 1986) (remanding case where decision of ALJ contained “a gap in its reasoning” because ALJ did not say he was discounting testimony or why); Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (remanding case where neither the ALJ nor the Appeals Council indicated the weight given to relevant evidence). On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. See Smith, 782 F.2d at 1182 (“The [Commissioner] and the claimant may produce further evidence on remand.”). After a remand under sentence four, the court enters a final and immediately appealable judgment and then loses jurisdiction. Sargent, 941 F.2d 1207.
In contrast, sentence six provides:
The court may . . . at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding . . . .42 U.S.C. § 405(g). A reviewing court may remand a case to the Commissioner on the basis of new evidence only if four prerequisites are met: (1) the evidence is relevant to the determination of disability at the time the application was first filed; (2) the evidence is material to the extent that the Commissioner's decision might reasonably have been different had the new evidence been before him; (3) there is good cause for the claimant's failure to submit the evidence when the claim was before the Commissioner; and (4) the claimant made at least a general showing of the nature of the new evidence to the reviewing court. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985), superseded by amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec'y, Dep't of Health & Human Servs., 925 F.2d 769, 774 (4th Cir. 1991). With remand under sentence six, the parties must return to the court after remand to file modified findings of fact. Melkonyan, 501 U.S. at 98. The reviewing court retains jurisdiction pending remand and does not enter a final judgment until after the completion of remand proceedings. See Allen v. Chater, 67 F.3d 293 (4th Cir. 1995) (unpublished table decision) (holding that an order remanding a claim for Social Security benefits pursuant to sentence six of 42 U.S.C. § 405(g) is not a final order).
Though the court in Wilkins indicated in a parenthetical that the four-part test set forth in Borders had been superseded by an amendment to 42 U.S.C. § 405(g), courts in the Fourth Circuit have continued to cite the requirements outlined in Borders when evaluating a claim for remand based on new evidence. See, e.g., Brooks v. Astrue, No. 6:10-cv-152, 2010 WL 5478648, at *8 (D.S.C. Nov. 23, 2010); Ashton v. Astrue, No. TMD 09-1107, 2010 WL 3199345, at *3 (D. Md. Aug. 12, 2010); Washington v. Comm'r of Soc. Sec., No. 2:08-cv-93, 2009 WL 86737, at *5 (E.D. Va. Jan. 13, 2009); Brock v. Sec'y of Health & Human Servs., 807 F.Supp. 1248, 1250 n.3 (S.D. W.Va. 1992). Further, the Supreme Court of the United States has not suggested Borders' construction of § 405(g) is incorrect. See Sullivan v. Finkelstein, 496 U.S. 617, 626 n.6 (1990). Accordingly, the Court will apply the more stringent Borders inquiry.
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 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 12 consecutive months.Id. § 423(d)(1)(A).
I. The Five-Step Evaluation
To facilitate uniform and efficient processing of disability claims, federal regulations have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (noting a “need for efficiency” in considering disability claims). The ALJ must consider whether (1) the claimant is engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the impairment meets or equals an impairment included in the Administration's Official Listings of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents the claimant from performing past relevant work; and (5) the impairment prevents the claimant from having substantial gainful employment. 20 C.F.R. § 416.920. Through the fourth step, the burden of production and proof is on the claimant. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). The claimant must prove disability on or before the last day of her insured status to receive disability benefits. Everett v. Sec'y of Health, Educ. & Welfare, 412 F.2d 842, 843 (4th Cir. 1969). If the inquiry reaches step five, the burden shifts to the Commissioner to produce evidence that other jobs exist in the national economy that the claimant can perform, considering the claimant's age, education, and work experience. Grant, 699 F.2d at 191. If at any step of the evaluation the ALJ can find an individual is disabled or not disabled, further inquiry is unnecessary. 20 C.F.R. § 416.920(a)(4); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
A. Substantial Gainful Activity
“Substantial gainful activity” must be both substantial-involves doing significant physical or mental activities, 20 C.F.R. § 416.972(a)-and gainful-done for pay or profit, whether or not a profit is realized, id. § 416.972(b). If an individual has earnings from employment or self-employment above a specific level set out in the regulations, he is generally presumed to be able to engage in substantial gainful activity. Id. §§ 416.974-.975.
B. Severe Impairment
An impairment is “severe” if it significantly limits an individual's ability to perform basic work activities. See Id. § 416.921. When determining whether a claimant's physical and mental impairments are sufficiently severe, the ALJ must consider the combined effect of all of the claimant's impairments. 42 U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G). The ALJ must evaluate a disability claimant as a whole person and not in the abstract, having several hypothetical and isolated illnesses. Walker v. Bowen, 889 F.2d 47, 49-50 (4th Cir. 1989) (stating that, when evaluating the effect of a number of impairments on a disability claimant, “the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them”). Accordingly, the ALJ must make specific and well-articulated findings as to the effect of a combination of impairments when determining whether an individual is disabled. Id. at 50 (“As a corollary to this rule, the ALJ must adequately explain his or her evaluation of the combined effects of the impairments.”). If the ALJ finds a combination of impairments to be severe, “the combined impact of the impairments shall be considered throughout the disability determination process.” 42 U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G).
C. Meets or Equals an Impairment Listed in the Listings of Impairments
If a claimant's impairment or combination of impairments meets or medically equals the criteria of a listing found at 20 C.F.R. Pt. 404, Subpt. P, App.1 and meets the duration requirement found at 20 C.F.R. § 416.909, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience. 20 C.F.R. § 416.920(a)(4)(iii), (d).
The Listing of Impairments is applicable to SSI claims pursuant to 20 C.F.R. §§ 416.911, 416.925.
D. Past Relevant Work
The assessment of a claimant's ability to perform past relevant work “reflect[s] the statute's focus on the functional capacity retained by the claimant.” Pass v. Chater, 65 F.3d 1200, 1204 (4th Cir. 1995). At this step of the evaluation, the ALJ compares the claimant's residual functional capacity with the physical and mental demands of the kind of work he has done in the past to determine whether the claimant has the residual functional capacity to do his past work. 20 C.F.R. § 416.960(b).
Residual functional capacity is “the most [a claimant] can still do despite [his] limitations.” 20 C.F.R. § 416.945(a)(1).
E. Other Work
As previously stated, once the ALJ finds that a claimant cannot return to her prior work, the burden of proof shifts to the Commissioner to establish that the claimant could perform other work that exists in the national economy. See 20 C.F.R. § 416.920(f)-(g); Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992). To meet this burden, the Commissioner may sometimes rely exclusively on the Medical-Vocational Guidelines (the “grids”). Exclusive reliance on the “grids” is appropriate where the claimant suffers primarily from an exertional impairment, without significant nonexertional factors. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e); Gory v. Schweiker, 712 F.2d 929, 930-31 (4th Cir. 1983) (stating that exclusive reliance on the grids is appropriate in cases involving exertional limitations). When a claimant suffers from both exertional and nonexertional limitations, the grids may serve only as guidelines. Gory, 712 F.2d at 931. In such a case, the Commissioner must use a vocational expert to establish the claimant's ability to perform other work. 20 C.F.R. § 416.969a; see Walker, 889 F.2d at 49-50 (“Because we have found that the grids cannot be relied upon to show conclusively that claimant is not disabled, when the case is remanded it will be incumbent upon the [Commissioner] to prove by expert vocational testimony that despite the combination of exertional and nonexertional impairments, the claimant retains the ability to perform specific jobs which exist in the national economy.”). The purpose of using a vocational expert is “to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform.” Walker, 889 F.2d at 50. For the vocational expert's testimony to be relevant, “it must be based upon a consideration of all other evidence in the record, . . . and it must be in response to proper hypothetical questions which fairly set out all of claimant's impairments.” Id. (citations omitted).
An exertional limitation is one that affects the claimant's ability to meet the strength requirements of jobs. 20 C.F.R. § 416.969a(a). A nonexertional limitation is one that affects the ability to meet the demands of the job other than the strength demands. Id. Examples of nonexertional limitations include but are not limited to difficulty functioning because of being nervous, anxious, or depressed; difficulty maintaining attention or concentrating; difficulty understanding or remembering detailed instructions; difficulty seeing or hearing. 20 C.F.R. § 416.969a(c)(1).
II. Developing the Record
The ALJ has a duty to fully and fairly develop the record. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). The ALJ is required to inquire fully into each relevant issue. Snyder, 307 F.2d at 520. The performance of this duty is particularly important when a claimant appears without counsel. Marsh v. Harris, 632 F.2d 296, 299 (4th Cir. 1980). In such circumstances, “the ALJ should scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts, . . . being especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited.” Id. (internal quotations and citations omitted).
III. Medical Opinions
For claims filed on or after March 27, 2017, as Plaintiff's are, the applicable regulations require ALJs to consider the persuasiveness of each medical opinion of record in accordance with the following factors: (1) supportability; (2) consistency; (3) relationship with the claimant; (4) specialization; and (5) other factors that tend to support or contradict the opinion. 20 C.F.R. § 416.920c(b), (c). Regarding supportability, “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion . . . the more persuasive the medical opinion will be.” 20 C.F.R. § 416.920c(c)(1). As for the relationship with the claimant, ALJs consider the “length of the treatment relationship,” the “[f]requency of examinations,” the “[p]urpose of the treatment relationship,” the “[e]xtent of the treatment relationship,” and whether the source has examined the claimant. 20 C.F.R. § 416.920c(c)(3).
The new regulations define the term “medical opinion” as “a statement from a medical source about what you can still do despite your impairment(s) and whether you have one or more impairment-related limitations or restrictions.” 20 C.F.R. § 416.913(a)(2).
IV. Medical Tests and Examinations
The ALJ is required to order additional medical tests and exams only when a claimant's medical sources do not give sufficient medical evidence about an impairment to determine whether the claimant is disabled. 20 C.F.R. § 416.917; see also Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986). The regulations are clear: a consultative examination is not required when there is sufficient medical evidence to make a determination on a claimant's disability. 20 C.F.R. § 416.917. Under the regulations, however, the ALJ may determine that a consultative examination or other medical tests are necessary. Id.
V. Pain
Congress has determined that a claimant will not be considered disabled unless he furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing the existence of a medical impairment that could reasonably be expected to produce the pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). Social Security Ruling (“SSR”) 16-3p provides, “[i]n considering the intensity, persistence, and limiting effects of an individual's symptoms, we examine the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record.” Social Security Ruling 16-3p Titles II and XVI: Evaluation of Symptoms In Disability Claims, 82 Fed.Reg. 49,462, 49,464 (Oct. 25, 2017); see also 20 C.F.R. § 416.929(c)(1)-(c)(2) (outlining evaluation of pain).
In evaluating claims of disabling pain, the ALJ must proceed in a two-part analysis. Morgan v. Barnhart, 142 Fed.Appx. 716, 723 (4th Cir. 2005) (unpublished opinion); see also SSR 16-3p, 82 Fed.Reg. at 49,463. First, “the ALJ must determine whether the claimant has produced medical evidence of a ‘medically determinable impairment which could reasonably be expected to produce” the alleged symptoms. Id. (quoting Craig, 76 F.3d at 594); see SSR 16-3p, 82 Fed.Reg. at 49,463. Second, the ALJ must evaluate “the intensity and persistence of an individual's symptoms such as pain and determine the extent to which an individual's symptoms limit his or her ability to perform work-related activities . . . or to function independently.” SSR 16-3p, 82 Fed.Reg. at 49,464; see 20 C.F.R. § 416.928 (noting that the ALJ must consider all of a claimant's statements about his symptoms, including pain, and determine the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence).
APPLICATION AND ANALYSIS
Plaintiff alleges the ALJ made errors in evaluating the severity of some of her impairments, and specifically erred in evaluating her subjective complaints in accordance with SSR 16-3p. [Doc. 15 at 9-13.] Plaintiff argues the ALJ did not adequately explain her dismissal of Plaintiff's symptoms or explain how she found Plaintiff's degenerative disc disease of the cervical spine, GERD, IBS, hernia, and headaches were non-severe. [Id. at 9-10.] Finally, Plaintiff contends the ALJ erred in failing to consider the impact of her mental health impairments, and her inability to afford treatment, when assessing Plaintiff's non-compliance with treatment and the gaps in her treatment record. [Id. at 10-13.]
The Commissioner contends the ALJ properly accounted for Plaintiff's physical impairments, noting the opinions by the state agency consultants did not reveal any work-related physical limitations expected to last one year or result in death. [Doc. 16 at 11-13.]
Plaintiff's Testimony
During the hearing, Plaintiff testified that she had an address in Colorado where she was able to pick up her mail, but was otherwise homeless. [R. 34.] She testified she and her boyfriend lived in his van and had done so for four years. [R. 38-39.] When the ALJ asked Plaintiff about receiving medical treatment in Fort Worth, Texas, Plaintiff explained that her grandchildren drove her back and forth to her appointments as she did not “feel comfortable with another doctor. [She had] this same physician since 1992.” [R. 38.]
According to Plaintiff, she previously worked as a property manager, but could not handle the job due to her anxiety and difficulty interacting with the public. [R. 40, 42-43.] As a result, she hired other people to do the work for her. [R. 40.] Plaintiff testified her anxiety caused migraines and stomach issues. [Id.] She testified she was on Lyrica, Mobic, Bentall, Protonic, and Voltaren gel. [R. 41.] When asked if she had any physical problems that prevented her from working, Plaintiff responded, “[M]y neck and my right shoulder, and there's some disc or something. I get a sharp pain in my shoulder all the way down to my wrist.” [Id.] Plaintiff testified she had that issue for a year and a half or two years. [Id.] She later gave greater detail about the difficulties she had working as a property manager, explaining
When I was in the management position when I would-I had to come-go face to face with tenants, I would have to have somebody else in the room with me because I couldn't-I did not trust their instincts or anything. And then, when I did the paperwork, I could only have them fill out the paperwork, and when I had to enter it into the computer, if I sat in front of the computer, I would get real flashes in my eyes and get migraines, and it would cause me to start getting sharp pains down the back of my neck that would initiate nausea and acid reflux, and I-I would have to have somebody else do my data entry work when I had to do-had anything physical to go on, like cleaning or showing an apartment, it would cause me pain down my back and my right hip to where my right leg would pop and felt like it gave out from under me where I couldn't walk for a period of time to show my tenants . . . the property. I couldn't do any maintenance work because any amount of lifting or bending or anything continuously caused sharp pains in my right shoulder down my-down to my wrist and down-right down the center of my spine. My lower back I have a [lot of] problems with, it tends to cause my hip to feel like it pops out, and I fall. I get very disoriented if I move too quickly, and I tend to fall-black out an fall, and it-it would cause me a [lot of] problems.[R. 42-43.]
Plaintiff explained she had anxiety and panic due to previous domestic abuse. [R. 43.] She testified,
[I]f the person has a different color of skin or speaks differently, I get very anxious and panicky that I'm not going to say something right, or they're gonna misinterpret something, and . . . it makes my chest start hurting, and it's hard to breathe because I'm just so afraid . . . of the unknown, and it makes it very difficult for me to interact with other people.[R. 43-44.] According to Plaintiff, even prior to the pandemic, she had trouble going into public. [R. 44.]
As to her physical functional limitations, Plaintiff testified she could only sit for ten minutes before she has issues with her hip and back. [Id.] She explained, “I feel like one side of my body is bigger than the other side. I feel it's inflamed. It's just-the distortion I feel internally make [sic] it uncomfortable to walk or use my right side.” [Id.] She testified she can only stand for five or ten minutes without moving, noting “I have to constantly move, rearrange, prop my foot up, or something. It causes shooting spines right up my-my abdomen and through my chest.” [R. 45.] She indicated she can only walk for three to five minutes because “[i]t hurts all the way up . . . when I walk, from my right foot all the way up my hip and into my shoulder, and then, I get disoriented because of the pain, and . . . I just freeze.” [Id.] Plaintiff testified she could not lift a gallon of milk with one hand. [Id.] She has problems with gripping and has no grip strength in her hands. [Id.] Plaintiff also testified she has problems reaching because her arm does not rotate as far as it should-“I can only reach as far as like . . . from my elbow to my hand, I cannot really extend from my-from my shoulder down.” [R. 45-46.]
As to her mental functional limitations, Plaintiff testified she has issues with both her short- and long-term memory and her concentration and focus. [R. 46.] Plaintiff testified her limited mobility affects her ability to bathe or shower. [R. 47.] She also has problems with reading and comprehension. [Id.]
Medical and Opinion Evidence Regarding Plaintiff's Physical Impairments
The Court does not summarize Plaintiff's mental health-related records here as they are not relevant to the instant issue.
On August 28, 2018, Plaintiff was seen at JPS Northeast to establish care for her right hip, right shoulder, and neck pain. [R. 369.] She stated her pain had worsened over the last four months. [Id.] She reported that movement made her pain worse, and the pain keeps her up at night. [Id.] She experiences numbness and tingling in her arm and leg when sitting still. [Id.] On physical exam, Plaintiff had pain with palpation of the right hip, right shoulder and neck. [R. 370.] An x-ray was ordered. [R. 371.]
On September 25, 2018, Plaintiff was seen at JPS Northeast complaining of chronic back, hip, and shoulder pain. [R. 361-62.] At that time, Plaintiff reported the pain was constant and had worsened since the onset seven months prior. [R. 361.] Plaintiff's back pain was exacerbated by being still, while her hip and shoulder pain were aggravated by movement and activity. [R. 361-62.] Physical examination revealed decreased range of motion, pain, and decreased strength in the right shoulder. [R. 362.] Plaintiff had decreased range of motion but normal strength in the right hip. [Id.] She had tenderness and normal range of motion in the lumbar back. [Id.] Plaintiff was diagnosed with chronic right shoulder pain, right hip pain, and chronic right-sided pain without sciatica. [R. 363.] Plaintiff was prescribed Flexeril and Voltaren gel and was referred to physical therapy. [Id.]
On December 4, 2018, Plaintiff had a routine follow-up visit. [R. 340.] She complained of chronic right back, hip, and shoulder pain. [Id.] The notes from that visit further state:
An x-ray of her c-spine 8/30/18 showed multilevel cervical spondylosis an possible muscle spasm, and an x-ray of her right hip and shoulder was unremarkable. She has also noticed that in the last few weeks, she has noticed muscle spasms in her abdominal muscles and back muscles that leave her incapacitated for 15 min. She says that when she takes flexeril consistently, her pain and muscle spasm episodes are well-controlled, but she does not always take it because she “does not like medication”. Voltaren gel does not help her symptoms. She was referred to PT when she was last seen in September, but she never received therapy due to her anxiety regarding the unfriendly environment at the PT office. She requests another referral to PT.[Id.] Plaintiff was diagnosed with chronic right shoulder pain, right hip pain, chronic right-sided low back pain without sciatica, and abdominal muscle spasm. [R. 341.] Flexeril was continued, and physical therapy was ordered. [R. 341-42.]
The x-ray results can be found at R. 710-13.
On December 20, 2018, in a physical therapy evaluation, Plaintiff complained of pain on the right side of her body following a fall from her bike nine months prior. [R. 337.] Plaintiff reported right shoulder, hip, and lower extremity pain and weakness, and she complained of problems dropping things with her right hand. [Id.] Plaintiff indicated her symptoms were worse with prolonged time in supine, side-lying, and, especially, standing positions. [Id.] Physical examination findings showed less range of motion and strength in the right side, generally. [R. 338.] She was given a treatment plan that included therapeutic exercise, therapeutic activities, gait training, neuromuscular re-education, and self-care management training. [Id.]
On May 2, 2020, Plaintiff had a telehealth visit in which she complained of recurrent right shoulder, right hip, and right wrist joint pain. [R. 704.] Plaintiff was prescribed Flexeril and Tylenol for pain. [R. 705-06.] On June 29, 2020, Plaintiff had a telehealth visit during which she complained of right hip pain. [R. 708.] She noted she had been referred to pain management, but she had declined an appointment for fear of being infected with the coronavirus. [Id.] Plaintiff was prescribed Flexeril and Voltaren gel. [R. 709.]
Plaintiff was again seen on August 28, 2020, for chronic right shoulder pain. [R. 724.] She stated she had experienced the pain for many years and had been prescribed Flexeril in the past, “but it did not seem to do much for the pain . . . .” [Id.] The notes further indicate Plaintiff had attended physical therapy on a limited basis due to her anxiety. [Id.] The musculoskeletal portion of the physical exam noted Plaintiff had reduced elevation at the right shoulder. [R. 725.] Plaintiff was diagnosed with biceps tendinopathy on the right and chronic right shoulder pain, and she was advised to do gentle stretching and range of motion exercises and was prescribed Mobic. [R. 726.]
In a telehealth visit on September 14, 2020, Plaintiff complained of right shoulder pain. [R. 727.] She reported “a sharp, shooting type pain radiating from her next [sic] down to her right elbow and sometimes to her thumb. Says it is constant in nature.” [Id.] Plaintiff was referred to physical therapy. [R. 728.] She was also given a trial of Neurontin, and a nerve conduction test was ordered. [Id.] A nerve conduction study was performed on November 10, 2020, and the recorded impression was as follows:
This is an [sic] mildly abnormal electrophysiological study due to suggestion of right C5-C6 radiculopathy. Suggest MRI of the C-spine. No clear evidence of median or ulnar nerve neuropathy. Clinical correlation is suggested.[R. 733.]
An x-ray taken December 4, 2020, showed stable to mildly worsened degenerative changes of the cervical spine and mild glenohumeral and acromioclavicular degenerative change to the right shoulder. [R. 738-40.] In a follow-up visit on December 29, 2020, Plaintiff reported she had stopped Neurontin due to side effects. [R. 734.] She continued to experience pain in her right shoulder and arm. [Id.] Physical examination showed normal range of motion but decreased grip strength on the right. [R. 735.] Plaintiff was diagnosed with radicular pain in the right arm, and she was put on a trial of Lyrica and continued on Meloxicam. [R. 736.] An MRI was ordered. [Id.] She was given a referral to orthopedic surgery-spine. [Id.] On January 28, 2021, an MRI of Plaintiff's cervical spine showed mild cervical spondylosis and mild left foraminal narrowing at ¶ 3-C4. [R. 749-50.]
The ALJ's Consideration of Medical Evidence and Testimony
As noted, at Step 2 of the sequential evaluation process, the ALJ determined that Plaintiff's mental impairments of depression, anxiety, and PTSD were severe. [R. 14.] Also at Step 2, the ALJ offered the following analysis of Plaintiff's non-severe impairments:
The claimant also has non-severe impairments of degenerative disc disease of the cervical spine, GERD, IBS, hernia, and headaches. These impairments appear at one point or another in the medical evidence of record, usually in the context of emergency department or routine office visits. The record reveals that the claimant received either brief, routine, conservative treatment, or, at times, more involved treatment, but in either case, there is no evidence that these impairments resulted in lasting sequelae. The claimant did not allege any of these impairments to be disabling upon application and did not offer any testimony concerning them at the hearing of this matter. The evidence does not reveal that these impairments result in any work related limitations. An impairment or combination of impairments is “not severe” when medical and other evidence establishes only a slight abnormality or a combination of slight abnormalities that would have no more than a minimal effect on an individual's ability to work (20 CFR 404.1522 and 416.922; Social Security Rulings (SSRs) 85-28, 16-3p). As such, these impairments are deemed to be nonsevere. The undersigned considered all of the claimant's medically determinable impairments, including those that are not severe, when assessing the claimant's residual functional capacity.[R. 14-15.] During the subsequent steps of the sequential analysis, however, the ALJ failed to provide any narrative explaining why Plaintiff's non-severe impairments were not discussed or did not result in additional limitations in the RFC.
As to the medical opinions regarding Plaintiff's physical limitations, the ALJ indicated that she
considered the opinions from state agency medical consultants who found the claimant's medical impairments non-severe, noting ‘insufficient evidence' (1A; 3A). While these are not opinions on the claimant's functional capacity, the medical
evidence does not support finding that he claimant's medical impairments are severe.[R. 18.] Upon review, however, the state agency consultants thought the information was “insufficient” and that further evaluation was needed. (See, e.g., R. 58 (Dr. McCary indicated that an updated exam was needed, as the “[e]vidence available [was] insufficient”) and R. 71 (Yondell Moore, M.D., another state agency consultant, reviewed the available evidence and concluded, “[T]he physical allegations remain insufficient to rate.”)).
Discussion
The undersigned reviews Plaintiff's challenge to the ALJ's severity analysis as a challenge to the RFC determination. As Plaintiff points out, although the ALJ considered Plaintiff's non-severe impairments at Step 2, the ALJ failed to consider Plaintiff's non-severe impairments throughout the sequential evaluation, as required by the regulations. SSR 96-8p, 1996 WL 374184, at *5 (1986). And as the regulations also require, “if a claimant does have a severe impairment or combination of impairments, the ALJ must consider the effects of both the severe and non-severe impairments at the subsequent steps of the process, including in the determination of the RFC. Id.
Within the RFC discussion, the ALJ failed to explain her consideration of the effect, if any, that Plaintiff's non-severe physical limitations had on her ability to engage in substantial gainful activity. See Mazyck v. Astrue, No. 8:10-cv-2780-TMC, 2012 WL 315648, *8-9 (D.S.C. Feb. 1, 2012) (reversing the Commissioner's decision where the ALJ provided absolutely no discussion of the claimant's non-severe impairments, whether they impacted his RFC, or whether the ALJ considered them in combination with his severe impairment). Although not expressly stated, it is clear from the RFC findings that the ALJ concluded, without explanation, that Plaintiff's non-severe impairments failed to result in any exertional or postural limitations in the RFC, finding Plaintiff capable of performing at all exertional levels. [R. 16.] The ALJ failed to explain either her consideration of Plaintiff's testimony regarding her physical impairments/limitations in the RFC discussion, or the medical evidence of record documenting impairments that could result in these limitations. Additionally, the ALJ's medical summary supporting the Step 3, 4, and 5 findings was limited to mental status examinations and other mental health related findings. [R. 16-18.]
Whether or not the ALJ properly deemed Plaintiff's physical impairments non-severe, her failure to discuss those impairments and any associated functional limitations at Steps 3, 4, or 5 frustrates meaningful review. See Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (finding an ALJ need not discuss functions that are “‘irrelevant or uncontested'” but “‘[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'” (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013))); Clarence M. V. Saul, Civil No. SAG-19-2393, 2020 WL 3871142, at *4 (D. Md. July 9, 2020) (“Of course, it is in the purview of the ALJ to determine whether the combination of severe and nonsevere impairments requires additional limitations to Plaintiff's RFC, and the accompanying hypothetical. However, without such an explanation, this Court cannot review whether the ALJ's decision is supported by substantial evidence.”). Accordingly, the Court cannot find the ALJ's RFC determination is supported by substantial evidence.
The Commissioner's arguments that the ALJ's decision is supported by substantial evidence are unavailing. Essentially, the Commissioner argues that the bar for “substantial evidence” is “not high.” [Doc. 16 at 12 (quoting Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019)).] However, the Commissioner does not acknowledge the clear errors in the ALJ's sequential analysis. Furthermore, while an adequate discussion of Plaintiff's subjective complaints or function-by-function analysis might have rendered harmless any errors in the ALJ's RFC analysis, that was not done. In this case, there was ample testimony regarding Plaintiff's functional limitations as a result of her pain, and, as set forth above, there were objective findings in the medical records to support those complaints. However, the ALJ failed to examine those functional limitations and to properly explain if or why those complaints did not require any functional limitations in the RFC. It appears that once the ALJ found Plaintiff's physical impairments to be non-severe, the ALJ dispensed with any further discussion of the same.
In sum, the ALJ's decision is devoid of any analysis regarding Plaintiff's complaints of physical pain. Thus, the Court cannot find that the ALJ's decision is supported by substantial evidence or that the proper legal standard was applied. As such, the Court recommends that the ALJ's decision be reversed and the case remanded for further proceedings so that the ALJ can evaluate the evidence in accordance with the applicable rules and adequately explain her decision.
Remaining Allegations of Error
Because the Court finds that the ALJ erred in failing to adequately discuss what, if any, functional limitations resulted from Plaintiff's physical impairments and recommends remand on that basis, the Court declines to address Plaintiff's remaining allegations of error. See Hancock v. Barnhart, 206 F.Supp.2d 757, 763 n.3 (W.D. Va. 2002). On remand, however, the Commissioner should consider Plaintiff's remaining allegations of error.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g), and the case be REMANDED to the Commissioner for further administrative action consistent with this Report and Recommendation.
IT IS SO RECOMMENDED.