Opinion
No. 7:18-CV-00183-FL
01-08-2020
Angela Leigh Flowers, Plaintiff, v. Andrew Saul, Commissioner of Social Security, Defendant.
Memorandum & Recommendation
Plaintiff Angela Flowers challenges Administrative Law Judge Richard Vogel's decision denying her application for social security income. Flowers claims that ALJ Vogel erred in (1) failing to find her degenerative disc disease was a severe impairment and (2) determining Flowers's residual functional capacity ("RFC"). Both Flowers and Defendant Andrew Saul, Commissioner of Social Security, moved for a judgment on the pleadings in their favor. D.E. 21, 24.
After reviewing the parties' arguments, the undersigned has determined that ALJ Vogel reached the appropriate determination. Substantial evidence supports his finding that Flowers's degenerative disc disease had no more than a minimal effect on her ability to perform work-related activities. And ALJ Vogel's RFC determination properly accounted for all of Flowers's well-supported mental limitations. The undersigned magistrate judge therefore recommends that the court deny Flowers's motion, grant the Commissioner's motion, and affirm the Commissioner's determination.
The court has referred this matter to the undersigned for entry of a Memorandum and Recommendation. 28 U.S.C. § 636(b). --------
I. Background
In January 2012, Flowers protectively applied for disability benefits alleging a disability that began in November 2011. The Social Security Administration denied her claim at the initial level and upon reconsideration. Flowers then appeared at a hearing before ALJ Vogel to determine whether she was entitled to benefits. ALJ Vogel determined that Flowers was not entitled to benefits because she was not disabled. Tr. at 9-18.
ALJ Vogel found that Flowers had several severe impairments: post-Lemierre's syndrome, post-traumatic stress disorder ("PTSD"), and major depressive disorder ("MDD"). Tr. at 11. ALJ Vogel found that Flowers's impairments, alone or in combination, did not meet or equal a Listing impairment. Tr. at 12.
ALJ Vogel determined that Flowers had the RFC to perform a reduced range of sedentary work. Tr. at 13. Flowers cannot climb, crawl, bend, or be exposed to hazards. Id. She can perform simple, routine, repetitive tasks in a low-stress setting with no more than occasional decision-making or changes in the work setting. Id. And Flowers can have no interaction with the general public. Id.
ALJ Vogel concluded that Flowers had no past relevant work. Tr. at 16. But considering her age, education, work experience, and RFC, ALJ Vogel found that other jobs existed in significant numbers in the national economy that Flowers could perform. Tr. at 17. These include document preparer, addresser, and table worker. Id. Thus, ALJ Vogel found that Flowers was not disabled. Tr. at 17-18.
After unsuccessfully seeking review by the Appeals Council, Flowers began this action in October 2018. D.E. 3.
II. Analysis
A. Standard for Review of the Acting Commissioner's Final Decision
When a social security claimant appeals a final decision of the Commissioner, the district court's review is limited to determining whether, based on the entire administrative record, there is substantial evidence to support the Commissioner's findings. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is defined as "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). If the Commissioner's decision is supported by such evidence, it must be affirmed. Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996).
B. Standard for Evaluating Disability
In making a disability determination, the ALJ engages in a five-step evaluation process. 20 C.F.R. § 404.1520; see Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005). The analysis requires the ALJ to consider the following enumerated factors sequentially. At step one, if the claimant is currently engaged in substantial gainful activity, the claim is denied. At step two, the claim is denied if the claimant does not have a severe impairment or combination of impairments significantly limiting him or her from performing basic work activities. At step three, the claimant's impairment is compared to those in the Listing of Impairments. See 20 C.F.R. Part 404, Subpart P, App. 1. If the impairment is listed in the Listing of Impairments or if it is equivalent to a listed impairment, disability is presumed. But if the claimant's impairment does not meet or equal a listed impairment, the ALJ assesses the claimant's RFC to determine, at step four, whether he can perform his past work despite his impairments. If the claimant cannot perform past relevant work, the analysis moves on to step five: establishing whether the claimant, based on his age, work experience, and RFC can perform other substantial gainful work. The burden of proof is on the claimant for the first four steps of this inquiry, but shifts to the Commissioner at the fifth step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
C. Medical Background
In December 2009, before her disability onset date, Flowers experienced a sore throat, fever, severe pharyngitis, and adenopathy. Tr. at 529-35. Her symptoms progressed and Flowers became hypotensive with respiratory distress. Tr. at 724. Providers intubated Flowers and admitted her to the hospital, where she developed a septic embolism. Id. Providers assessed Flowers with Lemierre's syndrome and discharged her two weeks later. Tr. at 723.
The next month, Flowers felt well and had only some residual complaints. Tr. at 14. Treatment notes from August 2011 remark that Flowers had fully recovered from her Lemierre's syndrome and related issues. Tr. at 14, 718-19.
Flowers has also reported back pain. After falling at work in January 2011, an MRI showed mild disc bulging at L4-L5 and L5-S1. Tr. at 982-89. Flowers received a steroid injection and pain medication for her back pain. Tr. at 953-54, 999-1004. Three months later, another MRI revealed a five-millimeter enhancement at the thoracic cord consistent with a demyelinating process. Tr. at 970. An October 2014 MRI showed a small left foraminal disc herniation at L4-L5 touching the exiting L4 nerve root. Tr. at 1250.
Flowers also reported experiencing weakness and numbness in her legs, and problems falling. Tr. at 970, 1217, 1378. Providers recommended physical therapy to address Flowers's pain, but she declined to pursue it. Tr. at 14. Records show medication helped Flowers's symptoms. Id.
Flowers's mental health symptoms include anxiety and depression. She reported symptoms of depression and anxiety throughout 2010, 2011, and 2012. Tr. at 311, 674, 680-716, 920, 925, 1467, 1513. Flowers's symptoms appeared to stem from her fear of of developing sepsis again when, for instance, she had bronchitis in June 2011. Tr. at 659-61. But following a course of antibiotics, Flowers's bronchitis improved. Tr. at 656-58.
Flowers went to the hospital in May 2011 because of an accidental overdose. Tr. at 721. She again expressed anxiety about her Lemierre's syndrome. Id.
Various records from New Hanover Regional Medical Center and Dr. Mark Pithan reflect Flowers's reports of back pain and anxiety. Tr. at 14. Her mental status was within normal limits. Id. And treatment notes show that Flowers's mental health symptoms were stable with medication and she could care for her daughter. Id.
In June 2012, C. Craig Farmer, Ph.D., conducted a consultative psychological examination. 995-97. Dr. Farmer noted that Flowers reported anxiety related to her Lemierre's syndrome but she had no mental health treatment. Tr. at 14. Dr. Farmer remarked that Flowers's activities of daily living included cooking, cleaning, and taking care of routine household chores. Tr. at 15. He rated her memory, thinking, and judgment as adequate. Id. Dr. Farmer's assessment was that Flowers had an adjustment disorder with depression and anxiety. Id. He could not rule out PTSD at that time. Id.
Along with back pain and anxiety, Flowers reported that she had become forgetful. Tr. at 1256. From February 2013 through April 2014, therapist Joseph Kertesz treated Flowers for PTSD with anxiety symptoms. Tr. at 15, 1242-47, 1370-83. Kertesz encouraged Flowers to not focus on her Lemierre's disease and concentrate on improving her self-esteem. Tr. at 15. Despite her alleged memory loss, Kertesz noted Flowers's could perform chores and care for her daughter. Id.
D. Impairment Severity
Flowers first challenges ALJ Vogel's omission of her degenerative disc disease as a severe impairment at step two. The Commissioner argues not only that her degenerative disc disease is not a severe impairment, but also that ALJ Vogel properly considered the symptoms associated with this condition throughout the disability evaluation. Thus, he argues, any error at step two is harmless. The undersigned concludes that the evidence fails to support Flowers's argument.
As noted above, at the second step of the sequential evaluation process, the ALJ determines whether the claimant has an impairment or combination of impairments that is severe. 20 C.F.R. § 404.1520(a)(4)(ii). An impairment is considered "severe" if it significantly limits a claimant's ability to do work-related activities. 20 C.F.R. § 404.1522(a); SSR 96-3p, 1996 WL 374181, at *1. "[A]n impairment(s) that is 'not severe' must be a slight abnormality (or a combination of slight abnormalities) that has no more than a minimal effect on the ability to do physical or mental basic work activities." SSR 96-3p, 1996 WL 374181, at *1 (citing SSR 85-28, 1985 WL 56856). Basic work activities include physical capacities as well as those for seeing, hearing, speaking; understanding, carrying out, and remembering simple instructions; use of judgment; responding appropriately to supervision, co-workers, and usual work situations; and dealing with changes in a routine work setting. 20 C.F.R. § 404.1522(b).
The claimant bears the burden of proving that an impairment is severe. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). This is done by producing medical evidence establishing the condition and its effect on the claimant's ability to work. Williamson v. Barnhart, 350 F.3d 1097, 1100 (10th Cir. 2003).
But the mere presence of a condition or ailment is not enough to show the existence of a severe impairment. To qualify as a severe impairment under step two, the impairment must have lasted, or be expected to last, for a continuous period of at least twelve months, 20 C.F.R. § 416.909, and must not be controlled by treatment, such as medication. Gross v. Heckler, 785 F.2d 1163, 1166 (4th Cir. 1986).
If the ALJ determines that the claimant does not have a severe impairment or combination of impairments, she finds that the claimant is not disabled and the sequential process ends at step two. But if the claimant has at least one impairment found severe, the process moves on to the third step. "[T]he step-two inquiry is a de minimis screening device to dispose of groundless claims." Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citing Bowen v. Yuckert, 482 U.S. 137, 153-54 (1987) ); see also Felton-Miller v. Astrue, 459 F. App'x 226, 230 (4th Cir. 2011) ("Step two of the sequential evaluation is a threshold question with a de minimis severity requirement.").
An ALJ's omission of a severe impairment at step two does not, without more, require remand. "As long as the ALJ determines that the claimant has at least one severe impairment and proceeds to discuss all of the medical evidence, any error regarding failure to list a specific impairment as severe at step two is harmless." McClain v. Colvin, No. 1:12-CV-1374, 2014 WL 2167832, at *4 (M.D.N.C. May 23, 2014); Thomas v. Comm'r, Soc. Sec. Admin., No. SAG-11-3587, 2013 WL 210626, at *2 (D. Md. Jan. 17, 2013) (if the ALJ goes on to discuss and consider the non-severe impairment at later steps, there is no prejudice to the claimant).
Flowers contends that her degenerative disc disease was a severe impairment. Although ALJ Vogel noted that an April 2011 MRI of her lumbar spine had no positive findings, tr. at 11, Flowers argues that he failed to consider later testing which showed that this condition worsened. In support of this argument, Flowers points to a 2014 MRI showing a small left foraminal disc herniation touching on an exiting nerve root.
At step two, ALJ Vogel noted Flowers's degenerative disc disease but found it was not a severe impairment because it did not significantly limit her ability to perform basic work activities. Tr. at 11. Yet at the later steps of the sequential evaluation, ALJ Vogel considered Flowers's pain, the primary complaint related to her back condition. Tr. at 14-16. So any error in failing to classify her degenerative disc disease as a severe impairment would be harmless because ALJ Vogel then discussed all of her symptoms at later steps of the disability analysis.
ALJ Vogel also determined that Flowers's statements about her pain were not fully consistent with the evidence. He observed, for instance, that examination findings were generally unremarkable, Flowers's performed a wide array of daily activities, she managed her pain with medications and injections, and she declined her provider's recommendation to attend physical therapy. This evidence suggests that Flowers's pain symptoms presented no significant restrictions. ALJ Vogel still accommodated Flowers's pain symptoms by restricting her to sedentary work with postural limitations. Tr. at 15.
Based on the evidence, the undersigned finds no error in ALJ Vogel's conclusion that Flowers's degenerative disc disease was a non-severe impairment. And having considered her pain symptoms at the later steps of the disability evaluation would render harmless any error at step two. So the undersigned recommends that the court reject Flowers's argument on this issue.
E. Residual Functional Capacity
Flowers next contends that ALJ Vogel erred in his RFC determination by failing to address all of her mental limitations. The Commissioner argues that the RFC finding reflects all of Flowers's well-supported limitations. The undersigned finds no error in ALJ Vogel's RFC determination.
The RFC is a determination, based on all the relevant medical and non-medical evidence, of what a claimant can still do despite her impairments; the assessment of a claimant's RFC is the responsibility of the ALJ. See 20 C.F.R. §§ 404.1520, 404.1545, 404.1546; SSR 96-8p, 1996 WL 374184, at *2. If more than one impairment is present, the ALJ must consider all medically determinable impairments, including medically determinable impairments that are not "severe," when determining the claimant's RFC. Id. §§ 404.1545(a), 416.945(a). The ALJ must also consider the combined effect of all impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity. Id. § 404.1523; see Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989) ("[I]n evaluating the effect[] of various impairments upon a disability benefit claimant, the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them.").
The ALJ must provide "findings and determinations sufficiently articulated to permit meaningful judicial review." DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983); see also Wyatt v. Bowen, 887 F.2d 1082, 1989 WL 117940, at *4 (4th Cir. 1989) (per curiam). The ALJ's RFC determination "must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g. laboratory findings) and nonmedical evidence (e.g. daily activities, observations)." Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting Social Security Ruling ("SSR") 96-8p). Furthermore, "[t]he record should include a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence." Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013). Fourth Circuit precedent "makes it clear that it is not [the court's] role to speculate as to how the ALJ applied the law to [her] findings or to hypothesize the ALJ's justifications that would perhaps find support in the record. Fox v. Colvin, 632 F. App'x 750, 755 (4th Cir. 2015).
Social Security Ruling 96-8p explains how adjudicators should assess residual functional capacity. The Ruling instructs that the residual functional capacity "assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions" listed in the regulations. "Only after that may [residual functional capacity] be expressed in terms of the exertional levels of work, sedentary, light, medium, heavy, and very heavy." SSR 96-8p. The Ruling further explains that the residual functional capacity "assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations)." Id.
There is no "per se rule requiring remand when the ALJ does not perform an explicit function-by-function analysis[.]" Mascio, 780 F.3d at 636. 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." Id. (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)). The function-by-function requirement can be satisfied by reference to a properly conducted analysis by a state agency consultant. See, e.g., Linares v. Colvin, No. 5:14-CV-00129, 2015 WL 4389533, at *3 (W.D.N.C. July 17, 2015) ("Because the ALJ based his RFC finding, in part, on the function-by-function analysis of the State agency consultant, the ALJ's function-by-function analysis complied with [Soc. Sec. Ruling] 96-8p." (citing Lemken v. Astrue, No. 5:07-cv-33-RLV-DCK, 2010 WL 5057130, at *8 (W.D.N.C. 26 July 2010))).
ALJ Vogel's RFC limited Flowers to sedentary work with exertional and non-exertional restrictions. Tr. at 13. Flowers can perform simple, routine, repetitive tasks in a low-stress setting with no more than occasional decision-making or changes in the work setting and limited social interactions. Id.
Flowers argues that the RFC ignores her panic attacks and memory loss. Flowers's mother stated that she experiences memory loss when she becomes anxious.
As discussed above, ALJ Vogel declined to fully credit Flowers's statements about her symptoms. Tr. at 15. He remarked that Flowers reported anxiety symptoms stemmed from her Lemierre's syndrome but she had fully recovered from this by 2011. Tr. at 14.
Dr. Pithan noted that Flowers's mental status examinations were within normal limits, she could care for her child, and her symptoms were stable with medications. Id. Dr. Farmer's consultative examination noted that Flowers could cook, clean, and perform routine chores and her memory, thinking, and judgment were adequate. Tr. at 15. And he observed that Flowers had not received mental health treatment. Tr. at 14. Kertesz, Flowers's therapist, noted her allegations of memory loss but found it did not prevent her from performing routine chores or caring for her child. Tr. at 15.
Additionally, ALJ Vogel commented that Flowers did not present any severe mental health symptoms, did not seek aggressive mental health treatment, and performed an array of activities of daily living, including driving, preparing meals, performing chores, and using the internet. Tr. at 15-16. He further observed that medications generally controlled Flowers's mental health symptoms. Tr. at 15.
So although the record mentions Flowers's reports of anxiety and trouble with memory, the evidence supports ALJ Vogel's conclusion that these do not present greater limitations than the RFC reflects. Flowers has not identified additional limitations beyond the RFC that are well- supported by the evidence. Having identified no error in ALJ Vogel's RFC determination, Flower's argument on this issue lacks merit and should be rejected.
III. Conclusion
For these reasons, the undersigned recommends that the court deny Flowers's Motion for Judgment on the Pleadings (D.E. 21), grant Saul's Motion for Judgment on the Pleadings (D.E. 24), and affirm the Commissioner's determination.
The Clerk of Court must serve a copy of this Memorandum and Recommendation ("M&R") on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals. Dated: January 8, 2020
/s/_________
Robert T. Numbers, II
United States Magistrate Judge