Opinion
2:22-cv-003206-JD-MGB
01-05-2024
JAMIE P.,[1]Plaintiff, v. MARTIN O'MALLEY,[2]Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Plaintiff Jamie P. (“Plaintiff”), brought this action pursuant to Section 205(g) of the Social Security Act, as amended, (42 U.S.C. Section 405(g)), to obtain judicial review of a final decision of the Commissioner of Social Security Administration regarding her claim for Disability Insurance Benefits (“DIB”) under the Social Security Act (the “Act”). This matter was referred to the Magistrate Judge for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and Title 28, United States Code, Section 636(b)(1)(B). For the reasons set forth herein, the undersigned RECOMMENDS that the Commissioner's decision be REVERSED and REMANDED for an award of benefits.
RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS
Plaintiff was 40 years old on her alleged disability onset date, August 19, 2010. (R. at 102, 114.) Plaintiff claims disability due to pancreatitis, surgery not healing, unpredictable pain, irritable bowel syndrome (“IBS”), gastroesophageal reflux disease (“GERD”), allergies, slow digestion, constant pain, anxiety, and depression. (R. at 102, 114.) Plaintiff has at least a high school education and is able to communicate in English. (R. at 34, 615, 994.) Plaintiff has past relevant work as a head teller and customer service representative. (R. at 993.)
Plaintiff filed an application for DIB on October 25, 2013. (R. at 112, 125.) Her application was denied initially and on reconsideration. (R. at 112, 125.) After a hearing before an Administrative Law Judge (“ALJ”) on October 14, 2015, the ALJ issued a decision on December 14, 2015, in which the ALJ found that Plaintiff was not disabled. (R. at 20-101.) Plaintiff then filed an action in the United States District Court for the District of South Carolina. On July 2, 2018, upon the Commissioner's request for remand, the District Court remanded the action for further proceedings. (R. at 680-83).
Following the District Court's Order, the Appeals Council vacated the ALJ's December 14, 2015 decision and remanded the matter to the ALJ. (R. at 686-88.) After a hearing before an ALJ on July 9, 2019, the ALJ issued another unfavorable decision on October 23, 2019. (R. at 599-650.) Following this decision, Plaintiff filed a second request for judicial review with the United States District Court for the District of South Carolina.
On June 21, 2018, this Court issued an Order reversing the October 23, 2019 decision and remanding Plaintiff's case for further administrative proceedings. (R. at 1039-55.) The Appeals Council then remanded the case to a different ALJ. (R. at 1056-60.) The ALJ issued a third unfavorable decision on May 20, 2022. (R. at 975-1001.) This May 20, 2022 decision is the Commissioner's final decision for purposes of judicial review and is the subject of the instant civil action filed by Plaintiff.
In making the determination that Plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant last met the insured status requirements of the Social Security Act on December 31, 2015.
(2) The claimant did not engage in substantial gainful activity during the period from her alleged onset date of August 19, 2010 through her date last insured of December 31, 2015 (20 CFR 404.1571 et seq.).
(3) Through the date last insured, the claimant had the following severe impairments: abdominal pain status-post pancreas surgeries, chronic pancreatitis; inflammatory bowel disease (IBS); constipation/gastroparesis; gastroesophageal reflux disease (GERD); eosinophilic esophagitis (EoE); anxiety disorder; affective disorder; allergic rhinitis; and asthma (20 CFR 404.1520(c)).
(4) Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
(5) After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) with some additional non-exertional limitations. Specifically, claimant can lift and carry, push and/or pull up to 10 pounds occasionally and lesser amounts frequently. She can sit for 6 hours in an 8-hour [] workday, and stand and/or walk for 2 hours in an 8-hour workday. Claimant frequently can reach bilaterally overhead. She frequently can reach bilaterally in all other directions. Claimant frequently can handle and finger bilaterally. She can never crawl or climb ladders, ropes, or scaffolds. She occasionally can climb ramps and stairs, balance, stoop, kneel, and crouch. Claimant must never have exposure to unprotected heights. She must avoid concentrated exposure to dusts, odors, fumes, and other pulmonary irritants. Claimant's ability to understand, remember, and carry out instructions is limited to performing simple, routine tasks. Her ability to use judgment and deal with changes in a work setting is limited to making simple work-related decisions. Her time off-task would be accommodated by normal breaks. Claimant, however, is likely to be absent from work due to her severe gastrointestinal impairments 6 days per year, and no more than 12 days per year.
(6) Through the date last insured, the claimant was unable to perform any past relevant work (20 CFR 404.1565).
(7) The claimant was born on May 27, 1970 and was 45 years old, which is defined as a younger individual age 18-44, on the date last insured. (20 CFR 404.1563).
(8) The claimant has at least a high school education (20 CFR 404.1564).
(9) Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled,” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
(10) Through the date last insured, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 CFR 404.1569 and 404.1569a).
(11) The claimant was not under a disability, as defined in the Social Security Act, at any time from August 19, 2010, the alleged onset date, through December 31, 2015, the date last insured (20 CFR 404.1520(g)).(R. at 981-96.)
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 in the Act 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 twelve months.” 42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, the Act has by regulation reduced the statutory definition of “disability” to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment which equals an illness contained in the Social Security Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents him from doing substantial gainful employment. 20 C.F.R. § 404.1520. If an individual is found not disabled at any step, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a)(4).
The claimant bears the burden of proof with respect to the first four steps of the analysis. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); Patterson v. Comm'r of Soc. Sec. Admin., 846 F.3d 656, 659 (4th Cir. 2017). Once the claimant has established an inability to return to his past relevant work, the burden shifts to the Commissioner to show that the claimant-considering his age, education, work experience, and residual functional capacity-can perform alternative jobs and that such jobs exist in the national economy. SSR 82-62, 1982 WL 31386, at *3; Grant, 699 F.2d at 191; Pass, 65 F.3d at 1203; Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016).
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the Commissioner supported his findings with substantial evidence and applied the correct law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015); Woods v. Berryhill, 888 F.3d 686, 691 (4th Cir. 2018); Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 94 (4th Cir. 2020); 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). Consequently, the Act precludes a de novo review of the evidence and requires that the court uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988); Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012); Mascio, 780 F.3d at 640; Dowling v. Comm'r of Soc. Sec. Admin., 986 F.3d 377, 383 (4th Cir. 2021); 42 U.S.C. § 405(g).
“Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion.” Dowling, 986 F.3d at 383 (citing Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015)). It is “more than a mere scintilla of evidence but may be less than a preponderance.” Pearson, 810 F.3d at 207 (citing Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012)). In reviewing for substantial evidence, the court does not undertake to “reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ].” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); Hancock, 667 F.3d at 472; Arakas, 983 F.3d at 95; Dowling, 986 F.3d at 383. “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled,” the reviewing court must defer to the ALJ's decision. Shinaberry v. Saul, 952 F.3d 113, 123 (4th Cir. 2020) (citing Hancock, 667 F.3d at 472).
However, the court does not “reflexively rubber-stamp an ALJ's findings.” Dowling, 986 F.3d at 383 (citing Lewis v. Berryhill, 858 F.3d 858, 870 (4th Cir. 2017)). An ALJ may not cherrypick, misstate, or mischaracterize material facts. Arakas, 983 F.3d at 99 (citing Lewis, 858 F.3d at 869). Rather, ALJs “must ‘build an accurate and logical bridge' from the evidence to their conclusions.” Arakas, 983 F.3d at 95 (quoting Monroe, 826 F.3d at 189).
DISCUSSION
Plaintiff argues that the ALJ committed reversible error by failing to comply with this Court's prior Order instructing the ALJ to meaningfully assess the record evidence that was consistent with the opinions of Plaintiff's treating physicians, in accordance with the Treating Physician Rule.(Dkt. No. 18.) Plaintiff further argues that the ALJ improperly considered Plaintiff's subjective statements regarding her “sedentary lifestyle,” and improperly relied on testimony from the Vocational Expert that was inconsistent with the Dictionary of Occupational Titles. (Dkt. No. 18.)
The Social Security Administration has amended the “Treating Physician Rule,” effective March 27, 2017, for claims filed after that date. See 20 C.F.R. § 416.920c; see also Marshall v. Berryhill, No. 16-cv-00666-BAS-PCL, 2017 WL 2060658, at *3 n.4 (S.D. Cal. May 12, 2017). Under the new rule, the SSA will consider the persuasiveness of all medical opinions and evaluate them primarily on the basis of supportability and consistency. 20 C.F.R. § 404.1520c(a), (c)(1)-(2). However, because Plaintiff's claim was filed before the effective date of the change, the decision is reviewed under the regulation in effect at that time, 20 C.F.R. § 404.1527.
For the reasons discussed below, the undersigned finds that the ALJ's decision is not supported by substantial evidence. Specifically, the undersigned agrees with Plaintiff that the ALJ failed to meaningfully assess the record evidence consistent with the opinions of Plaintiff's treating physicians, as required by the Treating Physician Rule. The undersigned also agrees that the ALJ improperly evaluated Plaintiff's statements regarding her “sedentary lifestyle.” Accordingly, the undersigned RECOMMENDS that an award of benefits is appropriate.
I. Legal Standards
A claimant's residual functional capacity (“RFC”) represents the most she can still do despite her limitations. Ladda v. Berryhill, 749 Fed.Appx. 166, 172 (4th Cir. 2018). In reaching a determination regarding a claimant's RFC, the ALJ is obligated to consider “all of the relevant evidence in the case record,” including any medical source statements submitted by the claimant's treating source(s) and/or other acceptable medical sources. SSR 96-8P, 1996 WL 374184 (July 2, 1996); 20 C.F.R. § 404.1545; see also 20 C.F.R. § 404.1527. Indeed, the regulation, known as the “Treating Physician Rule,” imposes a duty on the Commissioner to “evaluate every medical opinion we receive.” 20 C.F.R. § 404.1527(c). Special consideration is to be given to the opinions of treating physicians of the claimant, based on the view that “these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations.” 20 C.F.R. § 404.1527(c)(2).
The Fourth Circuit reiterated the treating physician rule in Arakas v. Commissioner, explaining that a treating physician “opinion must be given controlling weight unless it is based on medically unacceptable clinical or laboratory diagnostic techniques or is contradicted by the other substantial evidence in the record.” 983 F.3d at 107 (emphasis in original) (citing 20 C.F.R. § 404.1527(c)(2); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987)). If a treating physician's opinion is not accorded controlling weight, it still must be evaluated and weighed “pursuant to the following non-exclusive list: (1) whether the physician has examined the applicant, (2) the treatment relationship between the physician and the applicant, (3) the supportability of the physician's opinion, (4) the consistency of the opinion with the record, and (5) whether the physician is a specialist.” Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005) (citing 20 C.F.R. § 404.1527). Any other factors that may support or contradict the opinion should also be considered. 20 C.F.R. § 404.1527(c)(6). “While an ALJ is not required to set forth a detailed factor-by-factor analysis in order to discount a medical opinion from a treating physician, it must nonetheless be apparent from the ALJ's decision that he meaningfully considered each of the factors before deciding how much weight to give the opinion.” Dowling, 986 F.3d at 385 (citing, e.g., Arakas, 983 F.3d at 107 n.16 (emphasis in original).) The Arakas Court observed that “SSR 96-2p further notes that ‘[i]n many cases, a treating [physician's] medical opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the test for controlling weight.'” Arakas, 983 F.3d at 106-07 (alterations and emphasis in original) (quoting SSR 96-2p). A “treating physician's testimony is ignored only if there is persuasive contradictory evidence.” Id. (emphasis in original) (quoting Coffman, 829 F.2d at 518).
II. Analysis
This Court's prior Order remanding Plaintiff's case for further consideration instructed the reviewing ALJ to consider the full context of Plaintiff's testimony pertaining to her “sedentary lifestyle,” and to clarify how that testimony-when read as a whole-supported the decision to discount the opinions of Plaintiff's treating physicians. (R. at 1049-50.) The opinions at issue included the opinion of Plaintiff's treating gastroenterologist, Dr. James Schnell, who opined in an RFC Questionnaire that due to Plaintiff's abdominal pain, distension, and severe constipation, she: (1) would need two unscheduled restroom breaks during an eight-hour workday; (2) would need to lie down or rest at unpredictable intervals during an eight-hour workday four to five times a month; and (3) would miss more than four days of work a month, (R. at 575-79), and a medical source statement from Plaintiff's primary care provider, Dr. JoAnn Hiott, indicating that she agreed with the limitations reported by Dr. Schnell, (R. at 595).
Plaintiff argues that the ALJ here did not follow this Court's instructions and made the same mistakes as the ALJ who authored the October 2019 decision. (Dkt. No. 18.) Plaintiff contends that the ALJ here miscategorized Plaintiff's testimony relating to her “sedentary lifestyle,” and that this mischaracterization improperly impacted the RFC assessment. (Id.) The undersigned agrees.
As this Court previously noted, a review of Plaintiff's hearing testimony confirms that Plaintiff did not use the term “sedentary” as it is defined in the regulations. The regulations define sedentary work as “one which involves sitting, [however] a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.” 20 CFR 404.1567(a). “Sitting would generally total about 6 hours of an 8-hour workday.” SSR 96-9P, 1996 WL 374185. In describing how her activity level impacted her pain and symptoms, Plaintiff testified that inactivity and lying in bed decreased her pain episodes. (R. at 70-71.) Plaintiff's attorney questioned her further on this topic:
Q. And as I understand your testimony, you're attributing the somewhat decrease in your pain level to the inactivity?
A. Correct.
Q. If you were attempting to go to a job eight hours a day, your pain level would increase?
A. Yes.
Q. And why do you think that, ma'am?
A. Because getting up to come here today, my pain level has increased. Any time that I have to get up, shower, get ready, my pain level increases.
Q. I'm going to ask you about some specific activities.... How about sitting, especially if you're sitting, you know, in a chair normally upright, do you have problems with that?
A. I don't ever sit.... I don't ever sit in a chair upright.
Q. Why is that, ma'am?
A. Because of my pain level. I'm either reclining or curled up.(R. at 76-77.)
Plaintiff's subsequent hearing testimony reiterates these statements. (R. at 646, 1006.)
This Court's prior Order explained that, when considered in context, Plaintiff's reference to her “sedentary life,” was, in fact, a description of a lifestyle where she “mostly lay[] in bed” and avoided sitting “in a chair upright,” and this described lifestyle did not match the level of activity required to perform sedentary work; namely, sitting for at least six hours in an eight-hour workday (R. at 71, 77.) Nonetheless, the ALJ decision at issue here did not give any further consideration to the full context of Plaintiff's testimony regarding her “sedentary lifestyle.” (R. at 985-93.) The decision did not mention that Plaintiff's “sedentary lifestyle” consists of lying in bed and avoiding sitting upright, nor did the decision reference Plaintiff's testimony that her pain levels increase whenever she has to “get up, shower, get ready.” (R. at 985-93.) Rather, the decision repeatedly relied on the mere phrase “sedentary lifestyle” as justification for Plaintiff's RFC. (R. at 985-93.)
What is more, the ALJ assigned little weight to the opinions of Plaintiff's treating providers, Drs. Schnell and Hiott, because Dr. Schnell's opinion that Plaintiff would need “to lie down and rest at unpredictable intervals 4 to 5 times a month for an unknown duration and that she would miss more than 4 days of work a month” was not supported by Plaintiff's own statements to Dr. Schnell and/or other providers. (R. at 992.) Specifically, the ALJ stated, “the need for such rest breaks and absences, [] is not generally supported by objective findings upon examination, and the claimant failed to report such limitations to Dr. Schnell or other providers of record.” (R. at 992.) However, Plaintiff's hearing testimony clearly supports a finding that she needs to lie down and rest often, if not all the time.
As this Court previously explained, “Plaintiff's description of her ‘sedentary life' as one where she ‘mostly lay[] in bed' and avoided sitting ‘in a chair upright' is consistent with the opinions of her treating physicians that she would need to lie down or rest at unpredictable intervals four or five times a month and that she would miss more than four days of work a month.” (R. at 1050.) Nevertheless, the ALJ again ignored the context of Plaintiff's testimony and its consistency with her treating physicians' opinions. (R. at 992.) Instead, the ALJ relied upon Plaintiff's reports that “her pain averaged a 3-4/10 and that her abdominal pain occurred 6 times per year” to discount Dr. Schnell's opinion, without mentioning that Plaintiff reported decreased severity and frequency in pain only when following the “sedentary lifestyle” that requires her to lie in bed for most of the day and avoid sitting upright. (R. at 992.) In other words, the ALJ impermissibly cherry-picked, misstated, and mischaracterized Plaintiff's testimony in order to support her decision to discount Dr. Schnell's opinion (and, in turn, Dr. Hiott's opinion agreeing with Dr. Schnell's recommendations). See Arakas, 983 F.3d at 99 (citing Lewis, 858 F.3d at 869).
Further, the ALJ cited no evidence contradicting the opinions of Dr. Schnell and Dr. Hiott, nor did she provide evidence that the opinions were based on medically unacceptable clinical or laboratory diagnostic techniques. As such, the treating physician opinions at issue should have been given controlling weight. See Arakas, 983 F.3d at 107 (explaining that a treating physician “opinion must be given controlling weight unless it is based on medically unacceptable clinical or laboratory diagnostic techniques or is contradicted by the other substantial evidence in the record”); 20 C.F.R. § 404.1527(c)(2); Coffman, 829 F.2d at 517. Based on the foregoing, the undersigned cannot conclude that the ALJ's decision is supported by substantial evidence and free from legal error. It should therefore be REVERSED.
III. Recommendation to Remand with Award of Benefits
Having found multiple errors in the ALJ's decision, remand is appropriate.The Fourth Circuit has held that it is appropriate for a federal court to “reverse without remanding 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).
Plaintiff has also alleged that the ALJ erred by improperly relying on testimony from the Vocational Expert that was inconsistent with the Dictionary of Occupational Titles. However, the undersigned finds that the errors addressed herein are sufficient to support remanding this case for an award of benefits. Accordingly, the undersigned need not consider Plaintiff's remaining allegation of error.
Plaintiff asserts here that the significant errors in the ALJ's decision warrant the award of benefits on remand. (Dkt. No. 18 at 37.) The undersigned agrees, given the procedural history of this case. Remand for reconsideration would serve no useful purpose here, where this case has already been remanded, and multiple hearings have been held on Plaintiff's application, which has been pending for over ten years. See, e.g., Anderson v. Saul, No. 7:19-cv-132-BO, 2021 WL 328846, at *2 (E.D. N.C. Feb. 1, 2021) (remanding for award of benefits where “reopening this case for another hearing would serve no purpose”); Gilliard v. Berryhill, No. 8:17-cv-1435-RMG, 2018 WL 4092069, at *3 (D.S.C. Aug. 28, 2018) (remanding for award of benefits where claimant's application has been pending for six years).
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be REMANDED for an award of benefits.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).