Opinion
Civil Action No. 8:18-cv-00880-RBH-JDA
04-11-2019
Ernest Glover, Plaintiff, v. Nancy A. Berryhill,, 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 2014, Plaintiff filed an application for DIB, alleging an onset of disability date of September 8, 2014. [R. 113-20 (application); R. 13 (ALJ's discussion of the application).] The claim was denied initially [R. 74-77] and on reconsideration [R. 79-83] by the Social Security Administration ("the Administration"). Plaintiff requested a hearing before an administrative law judge ("ALJ"), and, on March 22, 2017, ALJ Arthur L. Conover conducted a de novo hearing on Plaintiff's claim. [R. 25-55.]
The ALJ issued a decision on May 10, 2017, finding Plaintiff was not under a disability, as defined in the Social Security Act ("the Act"), from September 8, 2014, through the date of the decision. [R. 13-20.] At Step 1, the ALJ found Plaintiff meets the insured status requirements of the Act through December 31, 2019, and had not engaged in substantial gainful activity since September 8, 2014, the alleged onset date. [R. 15, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had the severe impairments of spine disorder and osteoarthritis. [R. 15, Finding 3.] At Step 3, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 15, 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 his past relevant work, the ALJ found Plaintiff retained the following residual functional capacity ("RFC"):
After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) with further limitation to lifting and carrying 20 pounds occasionally and 10 pounds frequently; use a prescribed cane to ambulate; no more than occasional pushing and pulling with the right lower extremity; no more than occasional climbing of ramps and stairs, balancing, stooping, and crouching; and no climbing of ladders, ropes and scaffolds, kneeling and crawling. Further, avoid concentrated exposure to dangerous machinery due to pain and medication side effects.[R. 15-16, Finding 5.] Based on this RFC finding, the ALJ determined at Step 4 that Plaintiff was unable to perform his past relevant work as a sanitation worker. [R. 18, Finding 6.] Considering Plaintiff's age, education, work experience, RFC, and the testimony of a vocational expert ("VE"), the ALJ found that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. [R. 19, Finding 10.] Accordingly, the ALJ found Plaintiff had not been under a disability, as defined in the Act, from September 8, 2014, through the date of the decision. [R. 19, Finding 11.]
Plaintiff requested Appeals Council review of the ALJ's decision, and the Council denied review. [R. 1-6.] Plaintiff filed this action for judicial review on March 30, 2018. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff argues that the ALJ's decision is not supported by substantial evidence, and he also maintains that the ALJ's decision contains errors of law. [Doc. 13.] Plaintiff suggests that he can perform only sedentary work because of the difficulty and pain associated with walking and because of his unsteadiness when moving from a sitting to a standing position, which has caused him to fall in the past. [Id. at 19-22.] Plaintiff contends that the ALJ's decision does not adequately explain how the ALJ found that Plaintiff was capable of performing light work. [Id. at 21.] Plaintiff also argues that the ALJ failed to conduct a function-by-function assessment, resulting in a faulty RFC assessment that included a broad finding that Plaintiff could perform light work without any specific findings regarding whether Plaintiff was limited in his ability to stand, walk and sit. [Id. at 21-22.]
The Commissioner, on the other hand, contends that the ALJ applied the correct legal standards and substantial evidence supports the ALJ's finding that Plaintiff is not disabled within the meaning of the Act. [Doc. 14.] The Commissioner argues that the ALJ considered the totality of the treatment record, noted evidence pertaining to Plaintiff's ability to stand and walk, and found that Plaintiff experienced some limitations regarding those functions but that the limitations were not disabling. [Id. at 7.]
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). Shalala v. Schaefer, 509 U.S. 292, 296 (1993). 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. 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).
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
Residual Functional Capacity
The Administration has provided a definition of residual functional capacity ("RFC") and explained what a RFC assessment accomplishes:
RFC is what an individual can still do despite his or her limitations. RFC is an administrative assessment of the extent to which an individual's medically determinable impairment(s), including any related symptoms, such as pain, may cause physical or mental limitations or restrictions that may affect his or her capacity to do work-related physical and mental activities. Ordinarily, RFC is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis, and the RFC assessment must include a discussion of the individual's abilities on that basis. A "regular and continuing basis" means 8 hours a day, for 5 days a week, or an equivalent work schedule.SSR 96-8p, 61 Fed. Reg. 34,474-01, at 34,475 (July 2, 1996) (internal citation and footnotes omitted). The RFC assessment must first identify the claimant's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions listed in paragraphs (b), (c), and (d) of 20 C.F.R. § 404.1545. See id. Only after this identification and assessment may RFC be expressed in terms of the exertional levels of work: sedentary, light, medium, heavy, and very heavy. Id. The Fourth Circuit has explained that expressing the RFC before undertaking the function-by-function analysis runs the risk that "'the adjudicator [will] overlook limitations or restrictions that would narrow the ranges and types of work an individual may be able to do.'" Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting SSR 96-8p, 61 Fed. Reg. at 34,476).
The Administration has determined that in assessing RFC, the ALJ
must consider only limitations and restrictions attributable to medically determinable impairments. It is incorrect to find that [a claimant] has limitations or restrictions beyond those caused by his or her medical impairment(s) including any related symptoms, such as pain, due to factors such as age or height, or whether the [claimant] had ever engaged in certain activities in his or her past relevant work (e.g., lifting heavy weights.) Age and body habitus (i.e., natural body build, physique, constitution, size, and weight, insofar as they are unrelated to the [claimant]'s medically determinable impairment(s) and related symptoms) are not factors in assessing RC.Id. at 34,476. To assess claimant's RFC, the ALJ must consider all relevant evidence in the record, including medical history, medical signs, laboratory findings, lay evidence, and medical source statements. Id. at 34,477.
The Fourth Circuit has also noted that were an ALJ not to undertake the function-by-function analysis first, it also could lead him to "'find that the individual has limitations or restrictions that he or she does not actually have.'" Mascio, 780 F.3d at 636 (quoting SSR 96-8, 61 Fed. Reg. at 34,476).
Function-by-Function Analysis
The Court first addresses Plaintiff's argument that the ALJ erred in not using a function-by-function analysis to determine his RFC. [Doc. 13 at 21-22 (asserting that the ALJ "merely gave the broad finding that [Plaintiff] could perform light work, without any finding of the amount [he] could stand, walk, and sit").] The Court concludes that the ALJ committed this error insofar as he found that Plaintiff, with use of his cane, would be capable of light work (with certain exceptions) but the ALJ never made specific findings regarding whether Plaintiff was limited in his ability to stand, walk, or sit.
The Court notes that "most light jobs . . . require a person to be standing or walking most of the workday." SSR 83-14, 1983 WL 31254, at *4. Here, Plaintiff's problems began with an on-the-job injury in 2011. [R. 39, 224.] Plaintiff had reported chronic back pain and related problems since that time [see, e.g., R. 237], and he had received treatment in various forms from different providers over the years, including prescription pain medications [see, e.g., R. 42 (Hydrocodone), R. 207 (physical therapy), R. 227 (Norco), R. 237 (epidural injections), R. 272 (quad cane), R. 302 (baclofen)].
The critical issue in this case concerns what, if any, limitations Plaintiff's conditions placed on his ability to work. The record is replete with evidence that Plaintiff had significant problems with moving from a sitting position to a standing position and with walking. See, e.g., R. 163-64 (Plaintiff's statements in late 2014 on mobility questionnaire that it "hurts to walk sometimes" and that he cannot walk far without tiring); R. 176 (Plaintiff's statements in 2015 on pain questionnaire that "[i]t hurts so bad sometimes I can't walk" and that he cannot do "a lot of walking"); R. 259-60 (doctor's November 2016 note reflecting that Plaintiff had reported having falling a couple of times since his last visit and reporting "that his legs sometimes felt weak and he would fall" and stating the doctor's observation that Plainitff "is sl [sic] unsteady when going from sitting to standing"); R. 281 (doctor's April 2016 note reflecting that Plaintiff was prescribed a quad cane); R. 295 (doctor's observation during a June 2015 visit that Plaintiff "walks slowly using a cane").
At the hearing before the ALJ, Plaintiff testified that his back was the biggest problem that kept him from working. [R. 38.] He also has arthritis in his right knee, and the knee "goes out when it wants to." [R. 39-40.] Plaintiff testified he could stand for only 30 minutes at a time. [R. 46-47.] When his attorney asked "[h]ow long or how far [he could] walk before [he needed] to take a break," Plaintiff answered, "From here to the door to go out [of] the building, however long that is. That's not too far." [R. 47.] Plaintiff agreed with counsel's characterization that that amount of time would be "less than five minutes." [R.47.] Plaintiff also noted that he could not bend because bending would cause him to fall. [R.47.] He also testified that he had had problems with weakness on both sides of his body and had had "a couple of falls" the week before the hearing when his legs "just went out," which Plaintiff believed was the result of his back pain. [R. 47.]
The hypothetical question the ALJ asked to the VE, however, did not reflect the limitations Plaintiff described. The ALJ asked the VE to consider a hypothetical person with Plaintiff's work history, who was "over 50 with a limited education," had been prescribed a cane to ambulate, could lift objects at the light level, could only occasionally push or pull with his right leg, climb ramps and stairs, balance, stoop, or crouch, and could never climb ladders, ropes, and scaffolds, kneel or craw, or work around heights and dangerous machinery. [R. 53.] The ALJ asked if there was light work that such a person could perform. [R. 53.] The VE opined that a selective number of light, unskilled jobs would be available to such a person so long as he had no problems using his hands. [R. 53-54.] The VE explained that those would include "some of the assembler and fabricated jobs . . . of small item household products," "packers and packaging type jobs," and "production inspector jobs [in which] the individually literally just observes what's going on." [R. 53-54.]
The ALJ explained that he would not ask about sedentary jobs "because there's no skills involved and based on [Plaintiff's] age and education, grids would be appropriate." [R. 54.]
The ALJ found Plaintiff not disabled based on the VE's testimony. [R. 19.] In the portion of his decision explaining the RFC, the ALJ did not describe the substance of Plaintiff's testimony relating to his symptoms and limitations. Rather, the decision simply notes that the ALJ found that Plaintiff's "medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, [his] statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision." [R 16.] The decision then proceeds to summarize Plaintiff's medical records and Plaintiff's testimony about his daily activities, such as using the washing machine and the microwave. [R. 16-17.] The decision states:
The evidence does not show significant strength deficits, circulatory compromise, neurological deficits, muscle spasms, or muscle atrophy or dystrophy that are often associated with long standing, severe or intense pain, and physical inactivity. The claimant's symptoms and their impact on his ability to work are not entirely consistent with the medical evidence.
Treatment notes from Family Health Center at [R. 253-96] show that the claimant denies numbness, weakness or change in urination. The claimant reported his pain is controlled with medications. He reported no other complaints. A report at [R. 249-52] indicated a negative straight leg-raising test. He had normal bilateral lower extremity motor examination. There was no edema in the upper or lower extremities.
Although the claimant has alleged side effects from the use of medications [R. 200], the record indicates generally that those side effects would not interfere with the claimant's ability to perform work activities in any significant manner, except avoid concentrated exposure to dangerous machinery.[R. 17-18.]
The record does not contain any opinions from treating or examining physicians indicating that the claimant is disabled or even has limitations greater than those determined in this decision[.] The evidence fails to show that the claimant has significant musculoskeletal weakness, deformity or swelling, neurological deficits, neuropathy, or myopathy.
I find that the claimant's medically determinable impairments could reasonably be expected to produce some of the alleged symptoms, but that the claimant's statements concerning the intensity, persistence and limiting effects of his symptoms are not entirely consistent with the medical evidence.
In accordance with Social Security Ruling 96-6p, I have considered the administrative findings of fact made by the State agency medical physicians and other consultants to the effect that the claimant is capable of a reduced range of medium work [R. 56-63, 65-72]. I give moderate weight because the record supports a more limiting [RFC] of light work but not disabling as alleged by the claimant.
Thus, in conclusion, the claimant has conditions and symptoms that may interfere with performance of some work activities. However, when considering the objective medical evidence, the claimant is able to perform work.
As Plaintiff contends, in explaining how the ALJ determined Plaintiff's RFC, at no point does the decision purport to specifically resolve the extent to which Plaintiff's claimed symptoms and limitations regarding his ability to stand and walk are consistent with the medical evidence. [Doc. 13 at 21-22.] By expressing Plaintiff's RFC without first resolving these issues-or even explicitly identifying them-the ALJ "created the danger that the [function-by-function-analysis] rule identifies," namely, that the ALJ would "'overlook limitations or restrictions that would narrow the ranges and types of work'" that Plaintiff was able to perform. Mascio, 780 F.3d at 636 (quoting SSR 96-8p, 61 Fed. Reg. at 34,476).
With the ALJ not having addressed how far or how long Plaintiff could walk without taking a break, it is not the district court's role to supply a resolution of the issue for the ALJ. See Radford v. Colvin, 734 F.3d 288, 296 (4th Cir. 2013).
The error is most concerning as it pertains to the ALJ's failure to determine Plaintiff's ability to walk more than very short distances before having to stop to take a break, given that Plaintiff plainly testified that he could not do so. See Morgan v. Colvin, No. 5:15-cv-00266-D, 2016 WL 4217822, at *7 (E.D.N.C. July 21, 2016) (holding that ALJ erred by failing to explain what effect the claimant's use of a boot, wheelchair, and cane had on her ability to work "[g]iven [claimant's] testimony that she could only stand for a few minutes and walk 15-20 minutes with the cane, along with her . . . left-side lower extremity weakness" (citation omitted)), Report and Recommendation adopted by 2016 WL 4218333 (D.S.C. Aug. 9, 2016). The Fourth Circuit has "not adopted a rule of per se reversal for errors in expressing the RFC before analyzing the claimant's limitation function by function." Monroe v. Colvin, 826 F.3d 176, 188 (4th Cir. 2016). However, the Fourth Circuit has held that "[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." Mascio, 780 F.3d at 736 (internal quotation marks omitted). That is exactly the case here. Because the ALJ did not resolve whether Plaintiff was limited in his ability to walk with his prescribed cane, the Court "cannot determine whether the hypothetical questions posed to the VE included all of [Plaintiff's] functional limitations as they needed to do in order to be useful." Monroe, 826 F.3d at 188 (citing Hines v. Barnhart, 453 F.3d 559, 566 (4th Cir. 2006)). In other words, if Plaintiff is indeed limited regarding the speed or distance he can walk, the VE's testimony regarding jobs that could be performed by a hypothetical person who was not so limited would be irrelevant. [R. 53.] Accordingly, the undersigned concludes that the case should be remanded and the ALJ should be directed to consider the extent to which Plaintiff is limited in his ability to stand, walk, or sit. Only once the ALJ has resolved that issue will he be able to properly consider Plaintiff's ability to perform other jobs that exist in significant numbers in the national economy. See Monroe, 826 F.3d at 188-89 (citing Mascio, 780 F.3d at 636).
For this reason, the undersigned rejects the Commissioner's argument that remanding based on the ALJ's failure to make findings as to Plaintiff's ability to walk, stand, and sit would be to place "form[]over[]substance." [Doc. 14 at 7.] In defending the ALJ's decision, the Commissioner argues that the ALJ, by finding that Plaintiff could perform light work (with the exceptions the ALJ noted) if he were allowed to use his prescribed cane, implicitly determined that he could stand or walk for at least six hours in an eight-hour workday. [Doc. 14 at 6 (citing SSR 83-10, 1983 WL 31251).] But the Court notes that even assuming that the ALJ found that Plaintiff was able to stand or walk for a total of six hours in an eight-hour workday, that still does not resolve whether Plaintiff had other limitations on his ability to work, such as only being able to walk a very short distance before having to stop and take a break.
Logical Bridge
Related to Plaintiff's contention that the ALJ erred in not performing a function-by-function analysis is his assertion that the ALJ also did not adequately explain his finding that Plaintiff, with use of his quad cane, would be able to perform light work with the limitations the ALJ identified. [Doc. 13 at 20-21.] The Court agrees with Plaintiff on this point as well.
Social Security Ruling 96-8p provides that the RFC "'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).'" Mascio, 780 F.3d at 636 (quoting SSR 96-8p, 61 Fed. Reg. at 34,478). The Fourth Circuit has "held that '[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, and specific application of the pertinent legal requirements to the record evidence.'" Monroe, 826 F.3d at 189 (quoting Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013)). In this way, the ALJ must "'build an accurate and logical bridge from the evidence to his conclusion.'" Id. (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)). The Court concludes that the ALJ did not do that in this case.
As noted, the ALJ found that Plaintiff's "medically determinable impairments could reasonably be expected to produce some of the . . . symptoms" that Plaintiff alleged, and the ALJ found that Plaintiff in fact "has conditions and symptoms that may interfere with performance of some work activities." [R. 18.] Nonetheless, the ALJ also found that Plaintiff's "statements concerning the intensity, persistence and limiting effects of his symptoms are not entirely consistent with the medical evidence." [R. 18 (emphasis added).] But the fact that Plaintiff's symptoms and their impact on his ability to work are not entirely consistent with the medical evidence begs the question of how consistent Plaintiff's symptoms and their impact on his ability to work are with the medical evidence. In other words, the ALJ must determine to what degree Plaintiff is overstating his symptoms and limitations if he is overstating them." Cf. Piper v. Colvin, No. 2:15-cv-12555, 2016 WL 5109521, at *4 (S.D. W. Va. Sept. 20, 2016) ("[T]he ALJ's finding that Plaintiff's symptoms were not 'entirely credible' does not tell the court whether the ALJ found those symptoms 'partially or completely incredible.'" (quoting Mascio, 780 F.3d at 738)). As noted, the ALJ's decision fails even to recount Plaintiff's testimony regarding his symptoms and limitations, let alone explain what parts of the testimony the ALJ found to be consistent with the medical evidence. Assuming the ALJ again determines on remand that Plaintiff is capable of performing light work with the exceptions the ALJ noted, the Court will need explanations from the ALJ regarding how and to what degree Plaintiff's ability to walk and ability to stand are limited and how the medical evidence supports those determinations. Only with this analysis will the Court be able to engage in meaningful review of the ALJ's decision.
The ALJ need not "address function-by-function . . . limitations that" the ALJ finds that the claimant does not have. Piper v. Colvin, No. 2:15-cv-12555, 2016 WL 5109521, at *4 (S.D. W. Va. Sept. 20, 2016). In this case, however, the ALJ's decision is not sufficiently specific to allow the undersigned to determine that the ALJ ever determined whether Plaintiff was limited in his ability to walk or stand.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, it is recommended that the decision of the Commissioner 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 April 11, 2019
Greenville, South Carolina