Opinion
No. 4:19-CV-175-FL
02-11-2021
CORNITHA DANIELS, Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security Administration, Defendant.
MEMORANDUM & RECOMMENDATION
This matter is before the court on the parties' cross motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Cornitha Daniels ("Plaintiff") filed this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the denial of her application for a period of disability and disability insurance benefits ("DIB"). The time for filing responsive briefs has expired, and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, the undersigned recommends that Plaintiff's Motion for Judgment on the Pleadings [DE #17] be granted, Defendant's Motion for Judgment on the Pleadings [DE #19] be denied, and the case be remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings.
STATEMENT OF THE CASE
Plaintiff applied for DIB on May 12, 2014, with an alleged onset date of April 8, 2014. (R. 98, 325-26.) The application was denied initially and upon reconsideration, and a request for hearing was filed. (R. 98, 150, 161, 204-05.) A hearing was held on March 14, 2017, before Administrative Law Judge ("ALJ") Joseph L. Brinkley, who issued an unfavorable ruling on May 31, 2017. (R. 98, 162-77.) On March 1, 2018, the Appeals Council granted Plaintiff's request for review and remanded the matter to the ALJ with instructions to evaluate Plaintiff's need for a cane and to give further consideration to Plaintiff's maximum residual functional capacity and to "provide appropriate rationale with specific references to evidence of record in support of the assessed limitations." (R. 98, 178-81.) Another hearing before ALJ Brinkley was held on July 12, 2018, who issued an unfavorable ruling on October 18, 2018. (R. 95-141.) On October 22, 2019, the Appeals Council denied Plaintiff's request for review of ALJ Brinkley's second decision. (R. 1-6.) At that time, the ALJ's decision became the final decision of the Commissioner. See 20 C.F.R. § 404.981. On December 16, 2019, Plaintiff filed the instant civil action, seeking judicial review of the final administrative decision pursuant to 42 U.S.C. § 405.
DISCUSSION
I. Standard of Review
The scope of judicial review of a final agency decision denying disability benefits is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; [i]t consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971), and Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)) (citations omitted) (alteration in original). "In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig, 76 F.3d at 589) (first and second alterations in original). Rather, in conducting the "substantial evidence" inquiry, the court determines whether the Commissioner has considered all relevant evidence and sufficiently explained the weight accorded to the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
II. Disability Determination
In making a disability determination, the Commissioner utilizes a five-step evaluation process. The Commissioner asks, sequentially, whether the claimant: (1) is engaged in substantial gainful activity; (2) has a severe impairment; (3) has an impairment that meets or equals the requirements of an impairment listed in 20 C.F.R. Part 404, Subpart P, App. 1; (4) can perform the requirements of past work; and, if not, (5) based on the claimant's age, work experience, and residual functional capacity can adjust to other work that exists in significant numbers in the national economy. See 20 C.F.R. § 404.1520(a)(4); Albright v. Comm'r of Soc. Sec. Admin., 174 F.3d 473, 475 n.2 (4th Cir. 1999). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Pass v. Chater, 65 F.3d 1200, 1203 (4th. Cir. 1995). At the fifth step, the burden shifts to the Commissioner to show that other work exists in the national economy that the claimant can perform. Id. In making this determination, the ALJ must decide "whether the claimant is able to perform other work considering both [the claimant's residual functional capacity] and [the claimant's] vocational capabilities (age, education, and past work experience) to adjust to a new job." Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981). "If the Commissioner meets [this] burden, the ALJ finds the claimant not disabled and denies the application for benefits." Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015).
III. ALJ's Findings
Applying the five-step, sequential evaluation process, the ALJ found Plaintiff "not disabled" as defined in the Social Security Act ("the Act"). As a preliminary matter, the ALJ found Plaintiff met the insured status requirements of the Act through June 30, 2019. (R. 100.) At step one, the ALJ found Plaintiff has not engaged in substantial gainful activity since April 8, 2014, the alleged onset date. (Id.) Next, the ALJ determined Plaintiff had the severe impairments of bilateral knee osteoarthritis, cervical and lumbar degenerative disc disease, hypertension, diabetes mellitus, and obesity. (Id.)
At step three, the ALJ concluded Plaintiff's impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, App. 1. (R. 101.) The ALJ expressly considered Listings 1.02, 1.04, 4.02, and 4.04, and stated he considered Plaintiff's obesity in accordance with SSR 02-1p. (Id.)
Before proceeding to step four, the ALJ assessed Plaintiff's residual functional capacity ("RFC") and found that Plaintiff had
the residual functional capacity to perform less than a full range of sedentary work, as defined in 20 CFR 404.1567(a), with sitting for a total of 6 hours in an 8-hour workday with interruptions and regularly scheduled breaks; standing and walking for a combined total of 6 hours a day with interruptions and regularly scheduled breaks; the option of alternating between sitting, standing, and walking every one-half hour; use of an assistive device to stand or walk on uneven terrain and when standing or walking for longer than 30-minute intervals; frequent use of the upper extremities to handle, finger, feel, and grasp bilaterally; occasional use of the upper extremities to engage in overhead lifting, reaching, pushing, and pulling bilaterally; occasional kneeling, crouching, and climbing of ramps or stairs; occasional use of the lower extremities to operate foot or leg controls; less than occasional crawling or climbing of ladders, ramps, or scaffolds; occasional exposure to extremes of temperature, vibrations, or wetness; and no work around unprotected heights or dangerous, moving mechanical parts.(R. 101.) In making this assessment, the ALJ stated that he considered Plaintiff's symptoms and the evidence (both "objective medical" and "other") based on the requirements of 20 C.F.R. § 404.1529 and SSR 16-3p, 1996 WL 5180304 (Oct. 25, 2017), and found Plaintiff's statements concerning the intensity, persistence, and limiting effects of Plaintiff's symptoms "not entirely consistent with the medical evidence and other evidence in the record." (R. 102, 105.) At step four, the ALJ concluded that Plaintiff is unable to perform any past relevant work. (R. 105.) Nonetheless, at step five, upon considering Plaintiff's age, education, work experience, and RFC, the ALJ determined there are jobs that exist in significant numbers in the national economy that Plaintiff could perform, namely: order clerk (DOT #209.567-014), charge account clerk (DOT #205.367-014), and document preparer (DOT #249.587-018). (R. 106.) The ALJ concluded that Plaintiff had not been disabled under the Act since April 8, 2014, Plaintiff's alleged onset date, through the date of the decision. (R. 107.)
IV. Plaintiff's Arguments
Plaintiff contends the Commissioner erred by:
(A) failing to conduct a function-by-function assessment of Plaintiff's work abilities, with specific harm being done by the failure to consider Plaintiff's need to use a cane for balance and to change positions every thirty minutes (Pl.'s Mem. Supp. Mot. J. Pldgs [DE #18] at 9-13); andThe Commissioner contends that ALJ Brinkley correctly evaluated Plaintiff's RFC and that substantial evidence supports the ALJ's findings regarding Plaintiff's use of a cane, Plaintiff's sitting and standing abilities, and Plaintiff's own statements about her symptom severity. (Def.'s Mem. Mot. J. Pldgs. [DE #20] at 8-23.) The undersigned disagrees with the Commissioner for the reasons explained below and, therefore, recommends remand to the Commissioner.
(B) finding that Plaintiff's statements regarding the limiting effects of her symptoms were not entirely consistent with the evidence and not assigning Plaintiff's statements regarding her symptom severity "great weight" (id. at 14-15).
A. Function-by-Function Assessment, Cane, and Work Positions
Plaintiff contends (i) the ALJ did not perform a function-by-function assessment in determining the RFC as required by Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015), and Monroe v. Colvin, 826 F.3d 176, 179 (4th Cir. 2016); (ii) she needs a cane to assist with balance and standing, which would require her to be off-task "an excessive amount"; and (iii) her knee osteoarthritis requires her to change position more frequently than the thirty-minute interval in the RFC. (Pl.'s Mem. Supp. Mot. J. Pldgs. at 10-12).
The RFC is an administrative assessment of "an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis" despite impairments and related symptoms. SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996); see also 20 C.F.R. § 404.1545(a)(1). "A 'regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule." SSR 96-8p, 1996 WL 374184, at *1. In determining the RFC, the ALJ considers an individual's ability to meet the physical, mental, sensory, and other requirements of work. 20 C.F.R. § 404.1545(a)(4). It is based upon all relevant evidence, which may include the claimant's own description of limitations from alleged symptoms. SSR 96-8p, 1996 WL 374184, at *5; 20 C.F.R. § 404.1545(a)(3). If necessary, an ALJ must "explain how any material inconsistences or ambiguities in the evidence were considered and resolved." SSR 96-8p, 1996 WL 374184, at *7.
An ALJ must "include a narrative discussion describing how the evidence supports each conclusion" in the RFC. Monroe, 826 F.3d at 189 (quoting Mascio, 780 F.3d at 636). The ALJ must specifically explain how certain pieces of evidence support particular conclusions and "discuss[ ] . . . which evidence the ALJ found credible and why." Monroe, 826 F.3d at 189 (quoting Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013)). The Fourth Circuit has interpreted this to require an ALJ to "build an accurate and logical bridge from the evidence to his conclusion." Monroe, 826 F.3d at 189 (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)).
"[A] proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion . . . . [M]eaningful review is frustrated when an ALJ goes straight from listing evidence to stating a conclusion." Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019) (citing Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018)). Simply put, this means an ALJ must "[s]how [his] work." Patterson v. Comm'r of SSA, 846 F.3d 656, 663 (4th Cir. 2017) (applying same principle to an ALJ's listing analysis). Such analysis—"[h]armonizing conflicting evidence and bolstering inconclusive findings," Patterson, 846 F.3d at 662—is a "necessary predicate" to determining whether substantial evidence supports the Commissioner's findings, Monroe, 826 F.3d at 189 (quoting Radford, 734 F.3d at 295). "An ALJ has a duty to explain the administrative decision so as to enable meaningful judicial review." Parker v. Colvin, No. 4:13-CV-38-FL, 2014 WL 2604282, at *3 (E.D.N.C. June 11, 2014). Where a court is "left to guess about how the ALJ arrived at his conclusions on [a claimant's] ability to perform relevant functions . . . , remand is necessary." Mascio, 780 F.3d at 637.
The Fourth Circuit recently emphasized that the function-by-function assessment of a claimant's abilities, which is a necessary prerequisite to the RFC finding, must be based on the correct regulatory framework, i.e. the framework set forth in 20 C.F.R. §§ 404.1545, 416.945, and SSR 96-8p, 1996 WL 374184 (July 2, 1996). Dowling v. Comm'r of SSA, ___ F.3d ___, ___, 2021 WL 203371, at *6-7 (4th Cir. 2021) (noting that the ALJ failed to cite to the regulatory framework in 20 C.F.R. § 416.945 and explained in SSR 96-8p and erred by relying exclusively on the symptom-evaluation framework explained in SSR 96-7p and SSR 16-3p). In Dowling, the Fourth Circuit faulted the ALJ, as it had similarly done in Thomas, 916 F.3d at 311-12, for beginning with a statement regarding the claimant's exertional abilities without "first engaging in 'a function-by-function analysis.'" Dowling, 2021 WL 203371, at *7 (quoting Monroe, 826 F.3d at 179).
20 C.F.R. § 416.945 addresses the RFC determination for Supplemental Security Income ("SSI") applications; 20 C.F.R. § 404.1545 applies to DIB applications. The regulatory framework in both sections is the same. See SSR 96-8p, 1996 WL 374184, at *1 (noting its applicability to both Title II (DIB) and Title XVI (SSI) benefits and citing both 20 C.F.R. § 404.1545 and 20 C.F.R. § 416.945). As Plaintiff only applied for DIB benefits, the appropriate section is 20 C.F.R. § 404.1545.
Several aspects of ALJ Brinkley's decision lead to the conclusion that ALJ Brinkley, like the ALJ in Dowling, applied the incorrect framework when evaluating Plaintiff's RFC. First, the only reference in the ALJ's opinion to 20 C.F.R. § 404.1545 and SSR 96-8p occurs in the "Applicable Law" section, which is not specific to this case and contains a boilerplate explanation of the Act and disability benefits application process. (R. 100.) Moreover, the ALJ's citation there is to support the statement that both severe and non-severe impairments must be considered in evaluating a claimant's RFC. (Id.) Second, ALJ Brinkley expressed Plaintiff's RFC "without first engaging in 'a function-by-function analysis.'" Dowling, 2021 WL 203371, at *7 (quoting Monroe, 826 F.3d at 179, and discussing Thomas, 916 F.3d at 311-12); (R. 101-05). Third, after expressing Plaintiff's RFC, ALJ Brinkley stated that this finding was based on the requirements of 20 C.F.R. § 404.1529 and SSR 16-3p, which are the regulation and concomitant SSR that address the process an ALJ uses to evaluate a claimant's symptoms (R. 102); Dowling identified this very problem and held that "an RFC assessment is a separate and distinct inquiry from a symptom evaluation, and the ALJ erred by treating them as one and the same," Dowling, 2021 WL 203371, at *7. Fourth, the narrative explanation and analysis that follows ALJ Brinkley's RFC statement contains little, if any, analysis and explanation as to how he arrived at the specific RFC findings. (See R. 102-05.) The ALJ simply stated that he made certain conclusions regarding Plaintiff's functional limitations based on the summarized evidence. (R. 104.) However, there is nothing to explain how the ALJ arrived at the specific functional limitations based on the evidence listed. Cf. Thomas, 916 F.3d at 311 ("Indeed, our precedent makes clear that meaningful review is frustrated when an ALJ goes straight from listing evidence to stating a conclusion."). For the foregoing reasons, the undersigned concludes that ALJ Brinkley applied an incorrect framework when assessing Plaintiff's RFC. See Dowling, 2021 WL 203371, at *7.
In this section the ALJ does not identify the need to perform a function-by-function assessment of Plaintiff's exertional abilities before assessing the RFC as required by regulation, SSR 96-8p, and Fourth Circuit precedent.
The ALJ's evaluation of Plaintiff's need for a cane also gives cause for concern. SSR 96-9p, 1996 WL 374185 (July 2, 1996), "requires, inter alia, consideration of the impact of medically-required hand-held assistive devices on the unskilled sedentary occupational base." Eason v. Astrue, No. 2:07-CV-30-FL, 2008 WL 4108084, at *16 (E.D.N.C. Aug. 29, 2008) (citing SSR 96-9p, 1996 WL 374185, at *7). "To find that a hand-held assistive device is medically required, there must be medical documentation establishing the need for a hand-held assistive device to aid in walking or standing, and describing the circumstances for which it is needed." SSR 96-9p, 1996 WL 374185, at *7. If the assistive device is "needed only for prolonged ambulation, walking on uneven terrain, or ascending or descending slopes, the unskilled sedentary occupational base will not ordinarily be significantly eroded." Id. However, if a claimant needs the device to assist with balance due to "significant involvement of both lower extremities," the sedentary occupational base may be significantly eroded. Id. Here, ALJ Brinkley found that Plaintiff was severely impaired by bilateral knee osteoarthritis (R. 100), and at least one treatment provider noted that Plaintiff had end-stage osteoarthritis in both knees (R. 506).
Whether and to what extent Plaintiff needs to use a cane is an important issue in the case. It was the Appeals Council's basis for remand after ALJ Brinkley's first decision denying benefits (R. 178-81), which ALJ Brinkley acknowledged at the beginning of the second hearing (R. 116). During the hearing, Plaintiff testified that she has been using a four-point cane for balance since February 2016. (R. 122-23.)
ALJ Brinkley correctly noted that the cane prescriptions in the record do not describe the circumstances for which Plaintiff needs a cane. (R. 104.) The ALJ expressed doubt regarding the medical necessity of a cane, noting that evidence in the record shows good strength and range of motion and no "instability gait." (Id.; Def.'s Mem. Supp. Mot. J. Pldgs. at 10-11.) On review, the Commissioner also notes that Plaintiff's treatment providers "did not always state that Plaintiff was using a cane." (Def.'s Mem. Supp. Mot. J. Pldgs. at 10-11.)
On the other hand, there is countervailing evidence in the record. (R. 456 (antalgic gait noted); 463, 500, 594 (walking with cane); 506 (end-stage osteoarthritis in both knees); 515-17 (reported falling and loss of balance).) The ALJ did not explain how he reconciled this evidence with the evidence he cited in support of his finding regarding cane usage. See Patterson, 846 F.3d at 662; SSR 96-8p, 1996 WL 374184, at *7.
Plaintiff also contends she would need to change position more frequently because of her knee impairments. (Pl.'s Mem. Supp. Mot. Pldgs. at 12.) Any error regarding this particular exertional limitation is unlikely to be repeated after a proper function-by-function assessment is conducted.
In sum, ALJ Brinkley applied an incorrect regulatory framework when assessing Plaintiff's RFC, which makes it impossible to conduct a meaningful review of the ALJ's RFC determination. See Dowling, 2021 WL 203371, at *7. This problem is only heightened in circumstances where, as here, the ALJ determined Plaintiff had the RFC to perform a reduced range of sedentary work. See SSR 96-9p, 1996 WL 374185, at *1 (reduced range of sedentary work "reflects very serious limitations" and is "relatively rare"). Accordingly, the undersigned recommends remand to the Commissioner.
B. Evaluation of Plaintiff's Statements
Plaintiff also contends the ALJ improperly evaluated her statements regarding the severity of her symptoms. (Pl.'s Mem. Supp. Mot. J. Pldgs. at 13-15.) In light of the error regarding the RFC evaluation, the court need not address whether the ALJ properly evaluated Plaintiff's statements regarding her symptom severity. It should be emphasized that this inquiry "is relevant to the RFC evaluation." Dowling, 2021 WL 203371, at *7. Any error in this regard is unlikely to be repeated on remand.
CONCLUSION
For the reasons stated above, it is RECOMMENDED that Plaintiff's Motion for Judgment on the Pleadings [DE #17] be GRANTED, Defendant's Motion for Judgment on the Pleadings [DE #19] be DENIED, and the Commissioner's decision be remanded for further consideration.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until February 25, 2021, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C. (Dec. 2019).
A party that does not file written objections to the Memorandum and Recommendation by the foregoing deadline, will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, a party's failure to file written objections by the foregoing deadline may bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).
This 11th day of February 2021.
/s/_________
KIMBERLY A. SWANK
United States Magistrate Judge