Opinion
C. A. 22-cv-02610-SAL-PJG
08-15-2023
Sharon Ervin, Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION ON PLAINTIFF'S APPEAL FROM THE SOCIAL SECURITY ADMINISTRATION'S DENIAL OF SOCIAL SECURITY BENEFITS
PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE
[ ] Affirm
[X] Reverse and Remand
This social security matter is before the court for a Report and Recommendation pursuant to Local Civil Rule 83.VII.02 (D.S.C.). The 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 defendant, Commissioner of Social Security (“Commissioner”), denying the plaintiff's claims for social security benefits.
Part I-Plaintiff seeks:
[X] Supplemental Security Income (“SSI”): Plaintiff's age at filing: 48
[X] Disability Insurance Benefits (“DIB”): Date last insured: June 30, 2023
[ ] Other:
Application Dated: March 8, 2018
Plaintiff's Year of Birth: 1970
Plaintiff's alleged onset Dated: January 27, 2018
Part II-Social Security Disability Generally
Under 42 U.S.C. § 423(d)(1)(A), (d)(5), and/or 42 U.S.C. § 1382c(a)(3)(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) and/or § 416.905(a); see also Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1973). The regulations generally require the Administrative Law Judge (“ALJ”) to consider five issues in sequence, as outlined below. 20 C.F.R. § 404.1502(a)(4) and/or § 416.920(a)(4). If the ALJ can make a determination that a claimant is or is not disabled at any point in this process, review does not proceed to the next step. Id.
A claimant has the initial burden of showing that he/she is unable to return to past relevant work because of his/her impairments. Once the claimant establishes a prima facie case of disability, the burden shifts to the Commissioner. To satisfy this burden, the Commissioner must establish that the claimant has the residual functional capacity, considering the claimant's age, education, work experience, and impairments, to perform alternative jobs that exist in the national economy. 42 U.S.C. § 423(d)(2)(A) and/or § 1382c(a)(3)(A)-(B); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir. 1980). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983).
Part III-Administrative Proceedings
Date of ALJ Decision: November 9, 2021
In applying the requisite five-step sequential process, the ALJ found:
Step 1: Plaintiff was engaged in substantial gainful activity during the relevant time period:
[ ] Yes [X] No
Step 2: [X] Plaintiff has the following severe impairments:
Obesity, Knee Chondromalacia, Left Ear Hearing Loss, and Depression.
[ ] Plaintiff does not have a severe impairment.
Step 3: [X] Plaintiff's impairments do not meet or medically equal a Listing. 20 C.F.R. Part 404, Subpart P, Appendix 1.
Step 4: Plaintiff's Residual Functional Capacity is as follows:
[T]he claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except that she can frequently balance, stoop, kneel, crouch, and crawl, but she can never climb ladders, ropes or scaffolds. The claimant should avoid concentrated exposure to hazards, cold, heat, humidity, and noise, and she can reach and handle. The claimant can perform simple, routine, and repetitive tasks, and she can frequently interact with the public, coworkers, and supervisors. The claimant can maintain attention and concentration for the two-hour segments before and after the fifteen-minute morning and afternoon breaks and the thirty-minute lunch period, and she can hear and understand conversational speech in a moderate noise intensity work environment as defined in the Dictionary of Occupational Titles and its companion publications.
[ ] Plaintiff could return to his/her past relevant work.
Step 5: [ ] Plaintiff could not return to his/her past relevant work, but using the Medical-Vocational Guidelines (“Grids”) as a framework supports a finding that Plaintiff is not disabled. 20 C.F.R. Pt. 404, Subpt. P, App'x 2.
[X] Plaintiff could not return to his/her past relevant work, but there are jobs in the national economy that Plaintiff can perform, as follows:
Job Title
DOT Number
Exertion Level
Skill Level
Approx. Number of National Jobs
Cafeteria Attendant
3111.677-010
Light
Unskilled; SVP 2
30,000
Mail Clerk
209.687-026
Light
Unskilled; SVP 2
30,000
Housekeeper/ Cleaner
323.687-014
Light
Unskilled; SVP 2
200,000
Date of Appeals Council decision: July 5, 2022
Part IV-Standard of Review
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); see also 42 U.S.C. § 405(g); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Thus, the court may review only whether the Commissioner's decision is supported by substantial evidence and whether the correct law was applied. See Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2017); Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980). “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.” Craig, 76 F.3d at 589; see also Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019); Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015). “Under 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, 139 S.Ct. at 1154 (citation omitted). 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].” Craig, 76 F.3d at 589; see also Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). Accordingly, even if the court disagrees with the Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock, 483 F.2d at 775.
Part V-Issues for Judicial Review
I. Residual Functional Capacity. The RFC assessment must be a reasoned assessment of all of the relevant evidence. The ALJ here failed to include significant limitations resulting from Ervin's impairments and he failed to provide an adequate discussion rejecting those limitations. Can a decision based upon an incomplete and inaccurate assessment of a claimant's RFC be supported by substantial evidence?
II. Lay Testimony. The ALJ is required to discuss all relevant evidence. Here the ALJ failed to assess the credibility of the lay statements, which support [Ervin]'s testimony. Can a decision which fails to acknowledge relevant evidence be found to be based on substantial evidence?(Pl.'s Br. at 31, 35, ECF No. 16 at 33, 37.)
Oral Argument:
[ ] Held on ______.
[X] Not necessary for recommendation.
Summary of Reasons
Plaintiff has a twelfth-grade education and previously worked as a certified nursing assistant and as a picker for Dollar Tree Distribution. (Tr. 50-53.) Plaintiff alleged disability due to vertigo, high cholesterol, and acute hearing loss. (Tr. 303.) She claimed she was unable to work because she could not walk far without getting dizzy, experienced muscle spasms in her lower back and legs, and was having surgery on both hands. (Tr. 316.) Plaintiff has exhausted her administrative remedies and now seeks review of the ALJ's decision, alleging he failed to properly assess her RFC or consider lay witness statements. (Pl.'s Br. at 30-36, ECF No. 16 at 32-38.) The Commissioner contends the ALJ's decision is supported by substantial evidence and complies with applicable law and regulations. (Def.'s Br. at 5-18, ECF No. 18 at 5-18.)
A. RFC Analysis
Plaintiff asserts the ALJ failed to consider her upper extremity impairments and her need for a walker when crafting the RFC. (Pl.'s Br. at 31-34, ECF No. 16 at 33-36.) After a thorough review of the record, the undersigned is constrained to agree that the ALJ failed to explain his consideration of Plaintiff's upper extremity impairments in a way that permits meaningful judicial review.
A claimant's residual functional capacity is “the most [a claimant] can still do despite [her] limitations” and is determined by assessing all of the relevant evidence in the case record. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). In assessing residual functional capacity, an ALJ should scrutinize “all of the relevant medical and other evidence.” 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). Social Security Ruling 96-8p requires an ALJ to reference the evidence supporting his conclusions with respect to a claimant's residual functional capacity. Further, “remand 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.” Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)) (alterations in original); see also Monroe v. Colvin, 826 F.3d 176, 188 (4th Cir. 2016).
Additionally, the United States Court of Appeals for the Fourth Circuit has repeatedly stated that “[a]n ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding.” Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017) (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)); see also Arakas v. Comm'r, 983 F.3d 83, 98 (4th Cir. 2020). Moreover, an ALJ continues to have an obligation to “include a narrative discussion describing how the evidence supports each conclusion.” Monroe v. Colvin, 826 F.3d 176, 190 (4th Cir. 2016) (quoting Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015)); see also SSR 968p. Similarly, remand may be appropriate when the courts are left to guess at how the ALJ arrived at the conclusions and meaningful review is frustrated. Mascio, 780 F.3d at 636-37. The ALJ must “build an accurate and logical bridge from the evidence to his conclusions.” Monroe, 826 F.3d at 189.
Although Plaintiff did not initially allege disability due to any upper extremity impairment, those impairments are referenced throughout the record. Plaintiff developed carpal tunnel syndrome while working for Dollar Tree and was diagnosed in late 2017 after complaining of pain in both hands and wrists. (Tr. 53-54, 659-66.) Cortisone injections provided some relief, but she continued to experience tingling in her left hand. (Tr. 653.) A January 2018 nerve conduction study of both upper extremities showed moderate carpal tunnel syndrome affecting both sensory and motor components of the median nerve, with the left being worse than the right. (Tr. 533.) Plaintiff continued to report pain and numbness in both hands, constant tingling in her left hand, and frequently dropping objects. (Tr. 641-46, 646-52.)
Plaintiff underwent carpal tunnel release surgery on her left hand in April 2018. (See Tr. 646 (scheduling the procedure), 628 (May 3, 2018 one-week post-op follow up appointment)). She reported “considerable relief” but requested analgesic cream for her left wrist one week after the surgery. (Tr. 628.) Two weeks later, Plaintiff had the same procedure on her right hand. (Tr. 632-36.) Plaintiff experienced more pain with the second surgery, but her wound was healing well. (Tr. 636-40.) She was prescribed additional pain medication and advised to exercise her hand at home. (Tr. 640.)
In June 2018, Plaintiff underwent a consultative mental status examination with Dr. James Ruffing. (Tr. 673-75.) Dr. Ruffing noted Plaintiff wore braces on both wrists during the examination and reported recently undergoing carpal tunnel surgery. (Tr. 674.) In August 2018, another consultative examiner, Dr. Gordon Early, noted Plaintiff did not put weight on her arms or hands. (Tr. 706.) However, Dr. Early also examined Plaintiff's hands, wrists, elbows, and shoulders and found them normal. Id.
In her adult function reports, dated May 2018 and April 2019, Plaintiff stated it hurt to hold a steering wheel with her hands and that her hands shook. (Tr. 319, 335.) However, she also reported coloring in adult coloring books to relieve stress. (Tr. 320.)
Plaintiff next complained of upper extremity pain in April 2020 when she reported right shoulder pain during a routine follow-up with her primary care doctor. (Tr. 2698.) Plaintiff denied any numbness or weakness and indicated the pain had improved over the prior two weeks. Id. Plaintiff's doctor stated the shoulder pain was likely due to arthritis. (Tr. 2702.) In August 2020, Plaintiff complained of constant, throbbing pain on the lateral side of her left elbow and was diagnosed with tennis elbow. (Tr. 2790-91.) She was given a tennis elbow strap and referred to sports medicine for further evaluation. (Tr. 2790.) Plaintiff continued to report elbow pain along with occasional numbness and swelling in her fingertips that did not respond to heat, bracing, Tylenol, lidocaine patches, or Voltaren gel. (Tr. 2837-2841 (August 31, 2020), 2880-84 (September 9, 2020), 2952-56 (January 5, 2021)). On examination, Plaintiff's doctor noted multiple tender points on her left lateral and medial epicondyles and the lateral and medial aspect of her left forearm and restricted range of motion. (Tr. 2838, 2840-41, 2884.) He treated her pain with osteopathic manipulation therapy, which resulted in improved motion, tenderness, and pain. (Tr. 2838, 2881.)
In October 2020, Plaintiff worked with an occupational therapist. (Tr. 2514-21.) She reported worsening left elbow pain over the prior month that she rated a 5-6/10. (Tr. 2514-15.) Plaintiff's hand function was mildly limited with grasping and carrying objects and she reported grasping and lifting increased her pain. Id. The occupational therapist noted altered sensation in the dorsal aspect of Plaintiff's forearm that could radiate to all digits on the volar and dorsal aspects, tenderness to touch at the left lateral epicondyle through the radial tunnel and diffuse tenderness through the left elbow. (Tr. 2515-16.) Plaintiff was hesitant with elbow and forearm mobility but her left elbow arc of motion, pro/sup range of motion, and left finger range of motion were within normal limits. (Tr. 2516.) Her left wrist flexion and extension were limited to 60 and 45 degrees respectively. Id. The therapist found Plaintiff's functional use of her left elbow was limited by “significant tenderness.” (Tr. 2518.) Plaintiff was given a wrist brace to wear at night and home exercises and stretches, instructed to avoid elbow extension with wrist flexion and extension and to keep items close to her body, and advised to participate in occupational therapy twice a week for six weeks. (Tr. 2518-19.)
In November 2020, Plaintiff reported “doing better.” (Tr. 2949.) In January 2021, Plaintiff reported improvement after receiving a steroid injection and denied numbness or weakness. (Tr. 2954.) However, in March 2021, Plaintiff reported shoulder pain and was treated for “somatic dysfunction of upper extremity.” (Tr. 2967-69.) She was noted to have normal range of motion in both shoulders, normal muscle strength, and negative Neer and Hawkin tests, but tenderness to palpation over the superior region of the trapezius muscle and left lateral scapula. (Tr. 2970.)
At the hearing, Plaintiff testified she had a good result from the carpal tunnel surgeries but continued to have problems with her hands. (Tr. 55.) She stated her left arm was worse than her right, especially her left elbow; she wore braces at night; had trouble holding things and unscrewing lids; dropped things; and experienced numbness in her hands if they were still for too long. (Tr. 55-56.) In addition, the vocational expert testified a hypothetical individual with Plaintiff's RFC who was further limited to occasional handling and fingering would be precluded from work. (Tr. 69-70.)
The ALJ found Plaintiff had the RFC to perform light work, with the additional limitation of frequent reaching and handling. (Tr. 22.) However, the origins of that manipulative limitation are not clear from the decision. The ALJ did not find Plaintiff had any upper extremity impairments, either severe or non-severe, and did not discuss any of the above medical evidence or testimony. (See generally Tr. 15-31.) The decision does not mention Plaintiff's hands, arms, wrists, or shoulders at all. Id.
The Commissioner argues there is no error because: (1) the ALJ stated in his standard boilerplate that he considered the entire record and the court should heed that statement; (2) portions of the ALJ's decision demonstrate he was “attuned to Plaintiff's upper extremity impairments,” even though he did not expressly discuss them; and (3) if there is an error, it is harmless because the record does not support more restrictive limitations. (Def.'s Br. at 5-15, ECF No. 18 at 5-15.) The undersigned will address each argument in turn.
As to the Commissioner's first argument, it is well established that “disability may result from a number of impairments which, taken separately, might not be disabling, but whose total effect, taken together, is to render a claimant unable to engage in substantial gainful activity.” Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989). Thus, an ALJ “must consider the combined effect of a claimant's impairments and not fragmentize them” and “must adequately explain his or her evaluation of the combined effects of the impairments.” Id. However, while an ALJ must consider all of the evidence, he is not required to explicitly refer to every single medical record. See Thomas v. Berryhill, 916 F.3d 307, 312 (4th Cir. 2019).
Here, the ALJ stated in his standard boilerplate that he considered “all the evidence,” “the entire record,” and all of Plaintiff's alleged symptoms. (Tr. 16, 18, 22.) The Commissioner asserts the ALJ “should be taken at his word.” (Def.'s Br. at 9, ECF No. 18 at 9.) This court has found such boilerplate language sufficient, but only where the ALJ's decision as a whole permits meaningful judicial review of the relevant issue. Compare Holmes v. Acting Comm'r Soc. Sec., C/A No. 5:17-01531-RBH, 2018 WL 6829116, at *6 (D.S.C. Dec. 28, 2018) (noting “the use of boilerplate language, without additional analysis indicating the ALJ considered all of Plaintiff's impairments, may be insufficient to support an ALJ's decision” but affirming where the ALJ's decision clearly referenced each impairment) with Arant v. Colvin, C/A No. 2:14-1539-MGL, 2015 WL 5785544, at *2 (D.S.C. Sept. 29, 2015) (remanding where the ALJ's decision contained relevant boilerplate language but no additional analysis). In this case, the ALJ provided no additional analysis to even suggest he considered Plaintiff's upper extremity impairments. As such, the boilerplate language, standing alone, cannot substitute for a substantive explanation.
Next, the Commissioner argues certain portions of the ALJ's decision demonstrate the ALJ “was attuned to Plaintiff's upper extremity impairments when evaluating her claim even though he did not expressly discuss them.” (Def.'s Br. at 10, ECF No. 18 at 10.) In support, the Commissioner points to the ALJ's listing analysis, citation to pertinent treatment records in the RFC explanation, and incorporation of a manipulative restriction in the RFC. Id.
In the listing analysis, the ALJ considered Listing 1.18, which broadly addresses abnormalities of a major joint in any extremity. See 20 C.F.R. pt. 404, subpt. P., app. 1, § 1.18. The ALJ found Plaintiff did not meet the criteria of Listing 1.18 because there was no evidence indicating she could not “perform fine and gross movements with at least one upper extremity due to a combination of extremity-related limitations and the use of a medically necessary mobility device.” (Tr. 19.) This could certainly be interpreted as a reference to Plaintiff's upper extremity impairments. However, the ALJ goes on to support his finding with references to Plaintiff's back pain, gait, sensations, coordination, deep tendon reflexes, and muscle tone with no further explanation. Id. Thus, even if the ALJ did consider Plaintiff's upper extremity impairments in his listing analysis, his explanation of that analysis does not further this court's review of the decision.
The Commissioner's RFC explanation does cite treatment notes that discuss Plaintiff's carpal tunnel syndrome and tennis elbow and the ALJ did limit Plaintiff to frequent reaching and handling. (See, e.g., Tr. 25-26 (citing Tr. 868-70, 2525-26)). However, the treatment notes are cited as support for the ALJ's discussion of Plaintiff's other impairments and without explanation as to how they contributed, if at all, to the ALJ's consideration of Plaintiff's upper extremity impairments. Id. Further, the ALJ's mere citation to treatment records does not reconcile conflicts in the evidence or provide a basis for Plaintiff's limitation to frequent reaching and handling. See SSR 96-8p, 1996 WL 374184, at *7 (requiring the ALJ to provide a narrative discussion of the restrictions included in the RFC assessment that “explain[s] how any material inconsistencies or ambiguities in the case record were considered and resolved”); Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013) (stating “a necessary predicate to engaging in 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”); Murphy v. Bowen, 810 F.2d 433, 438 (4th Cir. 1987) (providing that ALJs are required to resolve evidentiary conflicts in the record).
Finally, the Commissioner argues the ALJ's failure to articulate how he considered Plaintiff's upper extremity impairments is harmless error because the record does not support greater manipulative limitations than those included in the RFC. (Def.'s Br. at 11-12, ECF No. 18 at 11-12.) The undersigned offers no opinion as to what limitations the record may support. That determination lies entirely with the ALJ. However, here, where Plaintiff testified to difficulties with her hands and arms, medical records contain diagnoses of upper extremity impairments during the relevant period, and the vocational expert testified that greater manipulative limitations would preclude Plaintiff from working, the undersigned cannot find the ALJ's failure to articulate his consideration of these issues harmless. Without further explanation, the court is left to guess about the ALJ's determination of Plaintiff's manipulative limitations and cannot determine whether the RFC is supported by substantial evidence. Remand is necessary.
B. Remaining Issue
The undersigned does not address Plaintiff's remaining arguments as they may be rendered moot on remand. See Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3d Cir. 2003) (remanding on other grounds and declining to address claimant's additional arguments). Moreover, if necessary, Plaintiff may present her remaining arguments concerning the ALJ's alleged errors on remand.
RECOMMENDATION
It is recommended that this matter be
[ ] Affirmed. Plaintiff has failed to show that the Commissioner's decision was unsupported by substantial evidence or controlled by an error of law.
[X] Reversed and remanded pursuant to [X] Sentence Four [ ] Sentence Six of 42 U.S.C. § 405(g) for further consideration consistent with this Order.
[ ] Reversed and remanded for an award of benefits.
The parties' attention is directed to the important notice on the next page.
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
901 Richland Street
Columbia, South Carolina 29201
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).