Opinion
Civil Action No. 8:18-cv-02477-TMC-JDA
08-01-2019
Terry Denise Frans, Plaintiff, v. Andrew Saul, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION OF 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) to obtain judicial review of a final decision of the Commissioner of Social Security ("the Commissioner"), denying Plaintiff's claim for disability insurance benefits ("DIB"). 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.
PROCEDURAL HISTORY
In April 2015, Plaintiff filed an application for DIB, alleging an onset of disability date of November 20, 2014. [R. 203-04.] The claim was denied initially and on reconsideration by the Social Security Administration ("the Administration"). [R. 72-108, 116-19, 121-24.] Plaintiff requested a hearing before an administrative law judge ("ALJ"), and, on August 29, 2017, ALJ Jerry Faust conducted a video hearing on Plaintiff's claim. [R. 43-71.]
The ALJ issued a decision on November 17, 2017, finding Plaintiff had been under a disability within the meaning of the Act from November 20, 2014, through March 1, 2016, with her disability ending on March 2, 2016. [R. 15-42.] At Step 1, the ALJ determined that Plaintiff met the insured status requirements of the Act through December 31, 2019, and had not engaged in substantial gainful activity since November 20, 2014, the date she became disabled. [R. 23, Findings 1 & 2.] At Step 2, the ALJ found that, from November 20, 2014, through March 1, 2016, Plaintiff had the following severe impairments: rheumatoid arthritis; osteoarthritis of the right knee; and obesity. [R. 24, Finding 3.] The ALJ found that Plaintiff's alleged fibromyalgia was not a medically determinable impairment and that Plaintiff's anxiety, depression, and problems with focus and concentration due to fatigue were nonsevere. [R. 24-27.] At Step 3, the ALJ determined that, from November 20, 2014 through March 1, 2016, 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. 27, Finding 4.]
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 determined Plaintiff had the following residual functional capacity ("RFC"):
After careful consideration of the entire record, the from November 20, 2014 through March 1, 2016, the claimant had the residual functional capacity to perform a range of sedentary work as defined in 20 CFR 404.1567(a); such that she could occasionally reach overhead bilaterally; could occasionally use foot controls but with no more than ten pounds of pressure; could occasionally handle and finger; could occasionally climb ramps and stairs, but never ladders, ropes, or scaffolds; could occasionally balance, stoop, kneel, crouch, and crawl; could no more than occasionally be exposed to extreme cold, extreme heat, wetness, humidity, vibration, and hazards; and required a cane to ambulate.[R. 28, Finding 5.] At Step 4, the ALJ determined that, from November 20, 2014, through March 1, 2016, Plaintiff was unable to perform her past relevant work as a utilization review coordinator. [R. 32, Finding 6.] Further, considering Plaintiff's age, education, work experience, RFC, and the testimony of a vocational expert ("VE"), the ALJ found that from November 20, 2014, through March 1, 2016, there were no jobs that existed in significant numbers in the national economy that Plaintiff could have performed. [R. 33, Finding 10.] Consequently, the ALJ determined that Plaintiff was under a disability, as defined by the Act, from November 20, 2014, through March 1, 2016. [R. 33, Finding 11.]
The ALJ noted, however, that Plaintiff's disability ended on March 2, 2016, that she had not developed any new impairments since that date, and that her severe impairments were the same as those present from November 20, 2014, through March 1, 2016. [R. 33, Finding 12.] The ALJ determined that, beginning March 2, 2016, 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. 33, Finding 13.] The ALJ concluded that medical improvement occurred as of March 2, 2016, the date Plaintiff's disability ended, and that medical improvement resulted in an increase in Plaintiff's RFC. [R. 33-34, Findings 14 and 15.]
The ALJ determined that Plaintiff had the following RFC beginning March 2, 2016:
After careful consideration of the entire record, the undersigned finds that, beginning March 2, 2016, the claimant has had the residual functional capacity to perform a range of sedentary work as defined in 20 CFR 404.1567(a); such that she can occasionally reach overhead bilaterally; can occasionally use foot controls but with no more than ten pounds of pressure; can frequently but not constantly handle and finger; can occasionally climb ramps and stairs, but never ladders, ropes, or scaffolds; can occasionally balance, stoop, kneel, crouch, and crawl; can no more than occasionally be exposed to extreme cold, extreme heat, wetness, humidity, vibration, and hazards; and requires a cane to ambulate.[R. 34, Finding 16.] The ALJ then determined that Plaintiff remained unable to perform her past relevant work as a utilization review coordinator. [R. 35, Finding 17.] Considering Plaintiff's age, education, work experience, RFC, and VE testimony, however, the ALJ found that, beginning March 2, 2016, there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. [R. 36, Finding 21.] Accordingly, the ALJ determined that Plaintiff's disability ended March 2, 2016, and that she had not become disabled again since that date. [R. 37, Finding 22.]
Plaintiff requested Appeals Council review of the ALJ's decision, but the Council declined review. [R. 1-7.] Plaintiff filed this action for judicial review on September 7, 2018. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff argues the ALJ's finding of medical improvement is arbitrary and not supported by medical evidence. [Doc. 17 at 21-23.] Plaintiff also argues the ALJ improperly weighed the opinion evidence provided by Dr. Boyd, which contained work-preclusive limitations. [Id. at 23-26.] Lastly, Plaintiff contends the Appeals Council improperly declined to consider new and material evidence. [Id. at 26-31.]
The Commissioner, on the other hand, contends that substantial evidence supports the ALJ's finding of medical improvement on March 2, 2016, as well as his finding that Dr. Boyd's opinions were entitled to little weight. [Doc. 18 at 10-15.] The Commissioner also contends that the evidence provided to the Appeals Council did not justify a remand of this case. [Id. at 15-19.] 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) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) (citing Woolridge v. Celebrezze, 214 F. Supp. 686, 687 (S.D.W. Va. 1963))("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) (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985); 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 (citing Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991)).
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) (citing 42 U.S.C. § 405(g); Mitchell v. Schweiker, 699 F.2d 185, 188 (4th Cir. 1983); Sims v. Harris, 631 F.2d 26, 28 (4th Cir. 1980); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)), 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. § 404.1520. 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. § 404.1520(a); 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. § 404.1572(a)—and gainful—done for pay or profit, whether or not a profit is realized, id. § 404.1572(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. §§ 404.1574-.1575.
B. Severe Impairment
An impairment is "severe" if it significantly limits an individual's ability to perform basic work activities. See id. § 404.1521. 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). 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).
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. § 404.1509, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience. 20 C.F.R. § 404.1520(d).
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. § 404.1560(b).
Residual functional capacity is "the most [a claimant] can still do despite [his] limitations." 20 C.F.R. § 404.1545(a).
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 Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992); 20 C.F.R. § 404.1520(f)-(g). 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); see also 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. § 404.1569a; 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. § 404.1569a(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. § 404.1569a(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. Treating Physicians
If a treating physician's opinion on the nature and severity of a claimant's impairments is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" in the record, the ALJ must give it controlling weight. 20 C.F.R. § 404.1527(c)(2); see Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). The ALJ may discount a treating physician's opinion if it is unsupported or inconsistent with other evidence, i.e., when the treating physician's opinion does not warrant controlling weight, Craig, 76 F.3d at 590, but the ALJ must nevertheless assign a weight to the medical opinion based on the 1) length of the treatment relationship and the frequency of examination; 2) nature and extent of the treatment relationship; 3) supportability of the opinion; 4) consistency of the opinion with the record a whole; 5) specialization of the physician; and 6) other factors which tend to support or contradict the opinion, 20 C.F.R. § 404.1527(c). Similarly, where a treating physician has merely made conclusory statements, the ALJ may afford the opinion such weight as is supported by clinical or laboratory findings and other consistent evidence of a claimant's impairments. See Craig, 76 F.3d at 590 (holding there was sufficient evidence for the ALJ to reject the treating physician's conclusory opinion where the record contained contradictory evidence).
In any instance, a treating physician's opinion is generally entitled to more weight than a consulting physician's opinion. See Mitchell v. Schweiker, 699 F.2d 185, 187 (4th Cir. 1983) (stating that treating physician's opinion must be accorded great weight because "it reflects an expert judgment based on a continuing observation of the patient's condition for a prolonged period of time"); 20 C.F.R. § 404.1527(c)(2). An ALJ determination coming down on the side of a non-examining, non-treating physician's opinion can stand only if the medical testimony of examining and treating physicians goes both ways. Smith v. Schweiker, 795 F.2d 343, 346 (4th Cir. 1986). Further, the ALJ is required to review all of the medical findings and other evidence that support a medical source's statement that a claimant is disabled. 20 C.F.R. § 404.1527(d). However, the ALJ is responsible for making the ultimate determination about whether a claimant meets the statutory definition of disability. Id.
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. § 404.1517; 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. § 404.1517. 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. § 404.1529(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 F. App'x 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. § 404.1528 (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
Evidence of Medical Improvement
As stated, Plaintiff contends that ALJ's finding of medical improvement is arbitrary and not supported by substantial evidence. Plaintiff suggest that the ALJ improperly provided his own medical interpretation of Plaintiff's clinical findings; an interpretation he was not qualified to make. [Doc. 17 at 23.]
Medical improvement is defined as
Cases where benefits are awarded for only a specific time period are referred to as "closed period" cases. In deciding when the closed period should end, the federal circuits that have considered the issue have held that the medical improvement regulations apply. See McKenzie v. Colvin, No. 9:14-4816-RMG-BM, 2016 WL 182924, at *4 (D.S.C. Jan. 4, 2016) (collecting cases), Report and Recommendation adopted by 2016 WL 183907 (D.S.C. Jan. 14, 2016). Additionally, SSR 02-1p indicates that the medical improvement regulations are appropriate guidelines for determining when a disability period closes. See id. at *4 n.6; see also SSR 02-1p, 2000 WL 628049, at *10 n.2 (Sept. 12, 2002) ("We use separate sequential evaluation processes when we do continuing disability reviews; i.e., reviews to determine whether individuals who are receiving disability benefits are still disabled or when we determine whether an individual has a closed period of disability.").
any decrease in the medical severity of your impairment(s) which was present at the time of the most recent favorable medical decision that you were disabled or continued to be disabled. A determination that there has been a decrease in medical severity must be based on improvement in the symptoms, signs, and/or laboratory findings associated with your impairment(s).20 C.F.R. § 404.1594(b)(1). Here, the ALJ found that medical improvement occurred as of March 2, 2016, explaining:
During a March 2016 follow up with Arthritis Consultants, the claimant continued to report pain in her hands and feet as well as fatigue, but physical examination was negative for synovitis, and neurological examination was normal (Exhibit 11F). The claimant continued to follow up with the Arthritis Center throughout 2016 and into 2017 for regular Remicade treatment (Exhibit 12F). Physical examinations did note muscle tender points on only some occasions (Exhibit 12F). Examinations no longer noted any synovitis (Exhibit 12F). In June 2016, she reported that morning stiffness lasted about fifteen minutes, and by July 2017 the claimant's morning stiffness was down to only about ten minutes, which is significantly improved from the claimant's reporting during follow ups in 2015 (Exhibit 12F). The claimant continued to report no drug toxicity (Exhibit 12F). Upon questioning by the undersigned as to whether she has had any improvement since starting treatment, the claimant testified that she felt more stable, that her symptoms were more manageable, and that there had been improvement (Hearing Testimony). She stated that her morning stiffness now lasts fifteen to twenty minutes on a good day (Hearing Testimony).[R. 33-34.] In determining Plaintiff's RFC beginning on March 2, 2016, the ALJ also noted that "[w]ithout synovitis in her hands, her hand function improved." [R. 34.]
It is clear from reading the decision that the ALJ's determination that Plaintiff's RFC had increased was based on his conclusion that active synovitis limited Plaintiff to "only occasionally handle and finger" [R. 30], but that without synovitis in her hands, her hand function improved to allow her to frequently but not constantly handle and finger [R. 34.] Indeed, the only change in the RFC determination for November 20, 2014, through March 1, 2016, and the RFC determination for the period beginning March 2, 2016, is the increase from occasionally to frequently handling and fingering. [Compare R. 28, Finding 5 with R. 34, Finding 16.] However, a review of the record does not support the ALJ's conclusion.
The ALJ described the medical evidence that lead to a finding of disability during the closed period as follows:
The record indicates that, prior to her alleged onset date, the claimant presented in May 2014 with complaints of pain all over her body as well as left knee pain, muscle pain, and swelling (Exhibit 1F). An X-ray of the left knee did show joint effusion and mild degenerative arthritis of the patellofemoral joint (Exhibit 1F). Laboratory testing showed that the claimant's rheumatoid factor was 19 (Exhibit 1F). She presented in July 2014 to Arthritis Consultants, complaining of arm pain and joint pain in her feet, ankles, and knees, and stated that she was hurting all over (Exhibit 3F). She reported that she had morning stiffness that lasted all day, but was particularly severe for about three hours (Exhibit 3F). However, it was noted that Prednisone treatment had helped dramatically (Exhibit 3F). Examination showed tenderness of multiple joints in the hands as well as both wrists, examination of the knees showed crepitation, and the ankles were slightly swollen and tender (Exhibit 3F). Her diagnoses at that time included that she had seropositive rheumatoid arthritis as well as possible evolving osteoarthritis of the left knee (Exhibit 3F). X-rays of the hands and feet in July 2014 showed that the claimant had some joint space narrowing of the metacarpophalangeal joints without clear erosion, and on the feet she had two metatarsophalangeal joints with some cystic changes without clear erosion, and some erosive change around the first metatarsophalangeal joint (Exhibit 1F). She was started on Methotrexate treatment at that time (Exhibit 1F). August and September 2014 follow up notes indicate that she was no better with treatment and that she still had intense inflammatory symptoms (Exhibit 3F). It was decided at that time that she would proceed with Remicade (Exhibit 3F). Examinations in September and November 2014 showed substantial synovitis at the proximal interphalangeal joints and metacarpophalangeal joints as well as both wrists, decreased grip, tender elbows, restricted shoulder range of motion by five degrees in all planes, knee crepitation with swelling and 90 degrees of flexion, ankle tenderness, and tender metatarsal
heads (Exhibit 3F). Her sedimentation rate in November was elevated at 30 (Exhibit 3F).
Following the claimant's alleged onset date, the record indicates that the claimant continued to present for regular follow ups with Arthritis Consultants on generally a monthly basis in 2015 (Exhibit 3F, Exhibit 4F, Exhibit 10F). She continued to report fatigue and pain in her hands, ankles, back, hips, and shoulders (Exhibit 3F, Exhibit 4F, Exhibit 10F). Positive findings on examinations throughout 2015 included findings of positive synovitis, positive muscle tender points, and osteoarthritic changes, although neurological examinations were normal (Exhibit 3F, Exhibit 4F, Exhibit 10F). Her sedimentation rate in 2015 was recorded between 12 and 25 (Exhibit 3F, Exhibit 4F, Exhibit l0F). In January and February she reported that her morning stiffness lasted about forty-five minutes, in March morning stiffness was reported at about thirty minutes, in April it was reported at about twenty minutes, in July it was reported at about ten minutes, and in December was again reported at about thirty minutes (Exhibit 3F, Exhibit 4F, Exhibit 10F). She repeatedly reported no symptomatic drug toxicity during these follow ups (Exhibit 3F, Exhibit 4F, Exhibit 10F).
The claimant presented for a consultative examination in September 2015 (Exhibit 5F). Her back was generally tender diffusely, with the most tender spot in the midline at the lower half interscapular area (Exhibit 5F). Examination of the extremities found trace pitting edema to the distal shins bilaterally, and the right knee had prominent patellofemoral crepitus with a small effusion (Exhibit 5F). The anterior aspects of the hip capsules were tender to deep palpation (Exhibit 5F). Hip extension was reduced as was lumbar spine forward flexion and extension, but range of motion was otherwise generally normal (Exhibit 5F). An October 2015 X-ray of the right knee demonstrated spurs of all three compartments (Exhibit 9F).
After careful consideration of the evidence, the undersigned finds that during this time period, the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms. The allegations concerning the intensity, persistence and limiting effects of these symptoms are reasonably consistent with the medical evidence and other evidence in the record for the reasons explained in this
decision. The claimant has sought and received appropriate medical treatment for her symptoms. The record contains numerous office visit notes reflecting regular trips to the doctor to seek relief from her symptoms. The record reveals that the claimant consistently complied with prescribed treatment and physician recommendations. The claimant received treatment from a specialist rather than simply relying on a primary care physician, another indication that the symptoms were genuine. The claimant was on an aggressive medication regimen to help control, relieve, and reduce her symptoms, including Prednisone, Methotrexate, and Remicade. Examinations throughout 2014 and 2015 repeatedly noted findings of tenderness and synovitis, and imaging studies were positive for osteoarthritic changes. In summary, the allegations concerning the claimant's symptoms during this period are reasonably consistent with the medical and other evidence. With active synovitis in her hands, the claimant could only occasionally handle and finger.[R. 29-30.]
Upon reviewing the medical evidence, the Court notes that during the consultative examination in September 2015—during the period the ALJ found Plaintiff was disabled—Dr. Thomas J. Motycha noted that Plaintiff's "hands had no active signs of synovitis," and "no significant swelling, deformity, tenderness [or] decreased ranges of motions." [R. 458.] Dr. Motycha also noted that Plaintiff was able "to do fine manipulation and gross manipulation with either hand." [Id.] Nevertheless, Dr. Motycha noted that Plaintiff still suffered from pain and fatigue that worsened about three weeks into her infusion cycle, and that, although treatment had provided some success, she still suffered from flare-ups of her rheumatoid arthritis. [Id.]
On June 22, 2016, Plaintiff presented for her Remicade infusion with complaints of "a lot of fatigue"; pain in her feet, knees, and hands; and morning stiffness lasting about 15 minutes. [R. 557.] Dr. Boyd reported that the Remicade transfusion was needed every four weeks to avoid flare. [Id.] Dr. Boyd's impressions listed rheumatoid arthritis; chronic, highly complex, potentially toxic DMARD therapy-biologic in the form of Remicade and nonbiologic in the form of Methotrexate; evolving osteoarthritis; permanent and total disability; and fibromyalgia. [Id.] He noted Plaintiff suffered from "symptoms without synovitis." [Id.] On September 14, 2016, Plaintiff returned to Dr. Boyd for her Remicade infusion with continued complaints of fatigue and pain in her hands, feet, and knees. [R. 546.] Dr. Boyd's impressions listed rheumatoid arthritis; chronic, highly complex, potentially toxic DMARD therapy-biologic in the form of Remicade and nonbiologic in the form of Methotrexate; evolving osteoarthritis; permanent and total disability; and fibromyalgia. [Id.] Dr. Boyd again noted that Plaintiff had symptoms, but was without synovits. [Id.] On December 7, 2016, Plaintiff presented to Dr. Boyd for her Remicade infusion, reporting morning stiffness lasting twenty minutes and some pain and swelling in her hands and knees. [R. 534.] Dr. Boyd's impressions listed rheumatoid arthritis; chronic, highly complex, potentially toxic DMARD therapy-biologic in the form of Remicade and nonbiologic in the form of Methotrexate; evolving osteoarthritis; permanent and total disability; and fibromyalgia. [Id.] On March 14, 2017, Plaintiff reported for her Remicade infusion with continued pain in her hands, elbows, back, and knees; swelling and warmth in her hands and feet; and fatigue. [R. 524.] Dr. Boyd's impressions listed rheumatoid arthritis; chronic, highly complex, potentially toxic DMARD therapy-biologic in the form of Remicade and nonbiologic in the form of Methotrexate; evolving osteoarthritis; permanent and total disability; and fibromyalgia. [Id.] Treatment notes from Dr. Boyd dated June 20, 2017, indicate Plaintiff continued to have inflammatory symptoms in both feet, ankles, and hands. [R. 514.] Dr. Boyd noted that Remicade infusions were required every four weeks to avoid flares because Plaintiff felt worse three weeks into an infusion cycle. [Id.] Treatment notes from Dr. Boyd dated July 18, 2017, indicate Plaintiff reported a few flare ups with some increased pain in both hands and elbows; stiffness lasting about 10 minutes in the morning; and some inflammatory symptoms in both hands elbows and feet. [R. 510.] Plaintiff again reported feeling worse three weeks into her infusion cycle, dictating her need for Remicade every four weeks to avoid flare. [Id.] Dr. Boyd noted that Plaintiff suffered from rheumatoid arthritis; chronic, highly complex, potentially toxic DMARD therapy-biologic and/or non-biologic; evolving osteoarthritis; permanent and total disability (functionally); and fibromyalgia. [R. 510.]
Thus, the medical evidence establishes that in September 2015, Plaintiff was noted to have "no active signs of synovitis," but was also noted to suffer from pain and fatigue that worsened about three weeks into her infusion cycle. [R. 458.] Additionally, after the closed period of disability, Dr. Boyd, Plaintiff's rheumatologist, found that she suffered from severe joint pain due to rheumatoid arthritis that was disabling and prevented Plaintiff from working full time, even in a sedentary position. [R. 507; see also R. 510, 514, 524, 534, 546, 557.] And, as stated, Dr. Boyd opined that Plaintiff still suffered from "symptoms without synovitis." [R. 557, 546.]
Based on this record, the Court cannot find that the ALJ's decision is supported by substantial evidence. The lack of synovitis could not have been the basis for the ALJ's finding of increased RFC because this finding was actually made during the period in which the ALJ found Plaintiff to be disabled. Further, the ALJ failed to support his finding of increased RFC ability with medical evidence in the record. And as Plaintiff argued, the ALJ is not qualified to make this finding on his own. See Wilson v. Heckler, 743 F.2d 218, 221 (4th Cir. 1984) (finding the ALJ erroneously "exercised an expertise he did not possess" when the ALJ looked at the clinical data and himself concluded, without the assistance of a doctor's analysis, that the clinical data was inconsistent with the doctor's conclusions"). In sum, the ALJ failed to "'build an accurate and logical bridge from the evidence to his conclusion'" that Plaintiff's RFC increased with respect to her ability to handle and finger where the evidence before March 2016 and after March 2016 reflects similar notes and diagnoses. Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)).
Remaining Allegations of Error
Because the Court finds the ALJ's failure to properly explain his conclusion that Plaintiff experienced a medical improvement that increased her RFC in March 2016 is a sufficient basis to remand this matter for further consideration, the Court declines to address Plaintiff's remaining allegations. See Hancock v. Barnhart, 206 F. Supp. 2d 757, 763 n.3 (W.D. Va. 2002). However, on remand, the ALJ 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.
s/ Jacquelyn D. Austin
United States Magistrate Judge August 1, 2019
Greenville, South Carolina