Opinion
5:20-CV-381-FL
12-22-2021
KITO JOSEPH, Plaintiff/Claimant, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
Robert B. Jones, Jr United States Magistrate Judge
This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-13, -16] pursuant to Fed.R.Civ.P. 12(c). Claimant Kito Joseph (“Claimant”) filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of his application for a period of disability and Disability Insurance Benefits (“DIB”). Claimant responded to Defendant's motion, and the time for filing a reply has expired. [DE-18]. Accordingly, the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Claimant's Motion for Judgment on the Pleadings be allowed, Defendant's Motion for Judgment on the Pleadings be denied, and the case be remanded to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.
I. STATEMENT OF THE CASE
Claimant protectively filed an application for a period of disability and DIB on January 31, 2017, alleging disability beginning August 1, 1999. (R. 14, 284-85). His claim was denied initially and upon reconsideration. (R. 14, 141-73). A hearing before the Administrative Law Judge (“ALJ”) was held on May 8, 2019, at which Claimant, represented by counsel, and a vocational expert (“VE”) appeared and testified. (R. 14, 37-75). On February 12, 2020, the ALJ issued a decision denying Claimant's request for benefits. (R. 10-36). On May 19, 2020, the Appeals Council denied Claimant's request for review. (R. 1-6). Claimant then filed a complaint in this court seeking review of the now-final administrative decision.
IL STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act (“Act”), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). “The findings of the Commissioner ... as to any fact, if supported by substantial evidence, shall be conclusive . . . .” 42 U.S.C. § 405(g). Substantial evidence is “evidence which a reasoning mind would accept as sufficient to support a particular conclusion.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a “large or considerable amount of evidence, ” Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is “more than a mere scintilla ... and somewhat less than a preponderance.” Laws, 368 F.2d at 642. “In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the “substantial evidence” inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 2 438, 439-40 (4th Cir. 1997).
III. DISABILITY EVALUATION PROCESS
The initial disability determination, where the issue is whether a claimant is disabled and entitled to Social Security benefits in the first place, is based on a five-step sequential evaluation process as set forth in 20 C.F.R. § 404.1520 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in “substantial gainful activity, ” i.e., currently working; and (2) must have a “severe” impairment that (3) meets or exceeds [in severity] the “listings” of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity to (4) perform... past work or (5) any other work.Albright v. Comm 'r of the SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). “If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps.” Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the “special technique” described in 20 C.F.R. § 404.1520a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairments): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. Id. § 404.1520a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the “special technique.” Id. § 404.1520a(e)(3).
Once a claimant has been found disabled under the Act, a presumption of continuing disability arises. See Bellamy v. Sec 'y of Health & Human Servs., 755 F.2d 1380, 1381 (9th Cir. 1985) (citation omitted); see also Modlin v. Saul, No. 2:18-CV-57-FL, 2020 WL 2848184, at *2 (E.D. N.C. Feb. 6, 2020) (citing Bellamy), mem. & rec. adopted, 2020 WL 1321475 (E.D. N.C. Mar. 19, 2020); Packer o/b/o G.G.P. v. Saul, No. 3:19-CV-257, 2019 WL 4458581, at *2 (S.D. W.Va. Aug. 29, 2019), rep. & rec. adopted, 2019 WL 4458864 (S.D. W.Va. Sep. 17, 2019); Sykes v. Colvin, No. 5:15-CV-228-RN, 2016 WL 3129174, at *2 (E.D. N.C. June 2, 2016). The Commissioner may not terminate benefits unless substantial evidence demonstrates sufficient medical improvement in a claimant's impairments such that the claimant is able to engage in substantial gainful activity. See 42 U.S.C. §§ 423(f), 1382c(a)(4)(A); 20 C.F.R. § 404.1594. To determine whether a claimant continues to be disabled, an ALJ follows an eight-step sequential evaluation process for DIB claims and a seven-step process for SSI claims. The evaluation processes are essentially the same with the exception of the first step regarding substantial gainful activity, which applies only to DIB claims. The steps are as follows:
(1) Is the claimant presently engaged in substantial gainful activity? If so, and any applicable trial work period has been completed, the claimant's disability ends. If not, proceed to step two.
(2) Does the claimant have an impairment, or combination of impairments, which meets or equals an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the claimant's disability continues. If not, proceed to step three.
(3) Has there been medical improvement as shown by a decrease in the medical severity of the impairments) present at the time of the CPD? If so, proceed to step four. If not, proceed to step five.
(4) Was any medical improvement related to the ability to work (i.e., has there been an increase in the claimant's [RFC])? If so, proceed to step six. If not, proceed to step five.
(5) Is there an exception to medical improvement? If not, the claimant's disability continues. If an exception from the first group of exceptions to medical improvement applies (i.e., substantial evidence shows that the claimant has benefitted from “advances in medical or vocational therapy or technology” or “undergone vocational therapy” if either is “related to [the] ability to work”), see 20 C.F.R. §§ 404.1594(d) & 416.994(b)(3), proceed to step six. If an exception from the second group applies (i.e., disability determination was fraudulently obtained, claimant was uncooperative, unable to be found, or failed to follow prescribed treatment), see 20 C.F.R. §§ 404.1594(e) & 416.994(b)(4), the claimant's disability ends.
(6) Is the claimant's current combination of impairments severe? If so, proceed to step seven. If not, the claimant's disability ends.
(7) Does the claimant possess the [RFC] to perform claimant's past relevant work? If so, the claimant's disability ends. If not, proceed to step eight.
(8) Does the claimant's [RFC], when considered with the claimant's age, education, and work experience, allow the claimant to do other work? If so, the claimant's disability ends. If not, the claimant's disability continues.Sykes, 2016 WL 3129174, at *2-3 (citing 20 C.F.R. §§ 404.1594(f), 416.994(b)(5)). In an action considering termination of benefits, the claimant still has the burden to prove disability, but the Commissioner has the burden of producing evidence to meet or rebut the presumption that the claimant continues to be disabled. Id. at *3 (citing Bellamy, 755 F.2d at 1381).
In this case, Claimant alleges the following errors: (1) substantial evidence does not support the ALJ's conclusion that Claimant's conditions medically improved such that he was no longer disabled in 2019; (2) the ALJ did not properly analyze whether Claimant's return to work was an unsuccessful work attempt; (3) the RFC did not include all the limitations stated in the state agency consultants' opinions; and (4) the ALJ erred in discussing Claimant's testimony. Pl.'s Mem. [DE-14] at 16-32.
The court references the page number from the CM/ECF footer where it differs from the internal page number of Claimant's memorandum.
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found that Claimant was under a disability from June 27, 2015 through March 18, 2019. (R. 18). At step one, the ALJ found Claimant had not engaged in substantial gainful activity from June 27, 2015, the date Claimant became disabled, through March 18, 2019. Id. Next, the ALJ determined Claimant had the following severe impairments during that period: post traumatic stress disorder (“PTSD”), schizophrenia, and history of substance abuse in remission. Id. At step three, the ALJ concluded these impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 19). Applying the technique prescribed by the regulations, the ALJ found that Claimant's mental impairments had resulted in moderate limitations in understanding, remembering, or applying information; interacting with others; and adapting or managing oneself and a marked limitation in concentrating, persisting, or maintaining pace. Id.
Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding that from June 27, 2015 through March 18, 2019 Claimant had the ability to perform a full range of work at all exertional levels with the following nonexertional limitations:
[T]he claimant is limited to maintaining concentration, persistence, and pace for performance of simple, routine and repetitive tasks characteristic of unskilled work at all reasoning levels of unskilled work involving low stress stable work, defined as few changes in [the] work setting or work processes, and involving no more than occasional interactions with co-workers but no team or coordinated tasks with coworkers and no public interaction. Also, the claimant would be absent one or more days a month due to symptoms.(R. 19-22). In making this assessment, the ALJ found Claimant's statements about his limitations generally consistent with the medical and other evidence from June 27, 2015 through March 18, 2019. (R.20).
At step four, the AL J concluded that from June 27, 2015 through March 18, 2019, Claimant did not have the RFC to perform the requirements of his past relevant work as a technical support specialist, computer systems engineer, radio repairer, and shipping and receiving clerk. (R. 22). At step five, upon considering Claimant's age, education, work experience, and RFC, the AL J determined Claimant was incapable of adjusting to the demands of other employment opportunities that exist in significant numbers in the national economy. (R. 23). Accordingly, the ALJ found that Claimant was under a disability from June 27, 2015 through March 18, 2019.
The ALJ then found that Claimant has not developed any new impairment since March 19, 2019, and his severe impairments were the same as those present from June 27, 2015 through March 18, 2019. (R. 24). Beginning March 19, 2019, the ALJ found that Claimant's impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. Applying the technique prescribed by the regulations, the ALJ found that beginning on March 19, 2019, Claimant's mental impairments have resulted in mild limitations in understanding, remembering, or applying information and adapting or managing oneself and moderate limitations in interacting with others and concentrating, persisting, or maintaining pace. (R. 24-25).
The ALJ found that medical improvement occurred as of March 19, 2019 and that the improvement was related to the ability to work because there was an increase in Claimant's RFC. (R. 25). The ALJ found that beginning on March 19, 2019, Claimant had the RFC to perform a full range of work at all exertional levels with the following nonexertional limitations:
[T]he claimant is limited to maintaining concentration, persistence, and pace for performance of simple, routine and repetitive tasks characteristic of unskilled work at all reasoning levels of unskilled work involving low stress stable work, defined as few changes in work setting or work processes, and involving no more than occasional interactions with co-workers but no team or coordinated tasks with co-
workers and no public interaction.(R. 25-27). In making this assessment, the ALJ found Claimant's statements about his limitations not entirely consistent with the medical and other evidence. (R. 26). The ALJ concluded again that Claimant did not have the RFC to perform the requirements of his past relevant work. (R. 27). Nonetheless, upon considering Claimant's age, education, work experience, and RFC, the ALJ determined that beginning March 19, 2019, Claimant was capable of adjusting to the demands of other employment opportunities that exist in significant numbers in the national economy. (R. 2728). Accordingly, the ALJ found that Claimant's disability ended March 19, 2019 and that Claimant had not become disabled again since that date. (R. 28).
V. DISCUSSION
A. Substantial evidence does not support the RFC beginning March 19, 2019.
Claimant contends that when finding medical improvement, the ALJ did not properly compare Claimant's condition at the time the ALJ found him disabled with his current condition. Pl.'s Mem. [DE-14] at 12-16. Where benefits are awarded for a closed period, the ALJ must determine whether the claimant has experienced medical improvement related to his ability to work such that he is able to engage in substantial gainful activity. 20 C.F.R. § 404.1594(a); see Dowling v. Comm 'r of Soc. Sec. Admin., 986 F.3d 377, 383 (4th Cir. 2021). Medical improvement is defined as “any decrease in the medical severity of [the] impairment(s) which was present at the time of the most recent favorable medical decision” establishing disability. 20 C.F.R. § 404.1594(b)(1). The determination “must be based on improvement in the symptoms, signs and/or laboratory findings associated with [the] impairment(s).” Id. Medical improvement is related to the ability to work if the improvement results in an “increase in [the] functional capacity to do basic work activities.” Id. § 404.1594(b)(3). The burden of establishing medical improvement rests with the Commissioner. Craft v. Colvin, No. 4:12-CV-184-BO, 2013 WL 4674857, at *2 (E.D. N.C. Aug. 30, 2013) (citing Lively v. Bowen, 858 F.2d 177, 181 n.2 (4th Cir. 1988)).
Here, the ALJ found that medical improvement occurred as of March 19, 2019 because Claimant did not have an inpatient hospitalization since early 2018, and “[w]hile his earlier records reflect paranoid delusions, he showed no delusional thinking in April 2019” and “[h]is memory, insight and judgment were also noted to be intact.” (R. 25). The ALJ stated that she compared Claimant's RFC from the period during which he was disabled with the RFC beginning March 19, 2019 and found that Claimant's RFC had increased. Id.
The ALJ thereby compared Claimant's condition before March 19, 2019 to his condition after that date. The issue appears not to be whether the ALJ made that comparison, but instead whether substantial evidence supports the post-March 2019 RFC.
An individual's RFC is the capacity he possesses despite the limitations caused by physical or mental impairments. 20 C.F.R. § 404.1545(a)(1); see also S.S.R. 96-8p, 1996 WL 374184, at *1 (July 2, 1996). “[T]he residual functional capacity ‘assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions' listed in the regulations.” Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting S.S.R. 96-8p). The RFC is based on all relevant medical and other evidence in the record and may include a claimant's own description of limitations arising from alleged symptoms. 20 C.F.R. § 404.1545(a)(3); see also S.S.R. 96-8p, 1996 WL 374184, at *5.
Where a claimant has numerous impairments, including non-severe impairments, the ALJ must consider their cumulative effect in making a disability determination. 42 U.S.C. § 423(d)(2)(B); see Hines v. Brown, 872 F.2d 56, 59 (4th Cir. 1989) (“[I]n determining whether an individual's impairments are of sufficient severity to prohibit basic work related activities, an ALJ must consider the combined effect of a claimant's impairments.”) (citations omitted). The ALJ has sufficiently considered the combined effects of a claimant's impairments when each is separately discussed by the ALJ and the ALJ also discusses a claimant's complaints and activities. Baldwin v. Barnhart, 444 F.Supp.2d 457, 465 (E.D. N.C. 2005) (citations omitted). The RFC assessment “must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence” and also “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).” S.S.R. 96-8p, 1996 WL 374184, at *7; see also Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000) (observing that the ALJ “must build an accurate and logical bridge from the evidence to his conclusion”).
Here, the difference in the RFC after March 19, 2019 as compared to before that date is that the post-improvement RFC does not include a limitation for being absent one or more days per month due to symptoms. (R. 19, 25-26). In formulating the RFC from June 27, 2015 through March 19, 2019, the ALJ explained, “the claimant's severe psychotic symptoms and multiple psychiatric hospitalizations support a limitation to missing more than one day of work per month.” (R. 20). The ALJ cited records indicating multiple hospitalizations, the most recent of which was early 2018; outpatient treatment with a psychiatrist; “significant psychiatric symptoms, including paranoid delusions and hallucinations”; suicidal ideation in 2012; impaired memory; poor insight, judgment, and attention; and social interaction on only a weekly basis. Id.
In formulating the post-improvement RFC, the ALJ explained that the evidence “no longer supports a finding that the claimant would miss more than one day of work per month, as he has not ha[d] a psychiatric hospitalization in almost two years.” (R. 26). The ALJ noted that Claimant's recent mental status examination showed intact memory, insight, and judgment, and Claimant acknowledged that his symptoms improved with medication. Id. Claimant takes issue with the ALJ's reliance on outdated state agency consultants' opinions, the ALJ's failure to include all the limitations contained in the opinions in the RFC, the ALJ's failure to evaluate whether Claimant's return to work and subsequent termination in August 2019 was an unsuccessful work attempt, and the ALJ's finding that Claimant's testimony was not entirely consistent with the medical and other evidence. Pl.'s Mem. [DE-14] at 16-28.
1. The State Agency Consultants' Opinions
First, Claimant contends that the ALJ did not adequately explain why she gave the state agency consultants' medical opinions more weight for the period after March 19, 2019 than she did for the pre-March 19, 2019 RFC. Pl.'s Mem. [DE-14] at 18-20. When assessing a claimant's RFC, the ALJ must consider the opinion evidence. 20 C.F.R. § 404.1545(a)(3). Regardless of the source, the ALJ must evaluate every medical opinion received. Id. § 404.1527(c). In general, the ALJ should give more weight to the opinion of an examining medical source than to the opinion of a non-examining source. Id. § 404.1527(c)(1). Additionally, more weight is generally given to opinions of treating sources, who usually are most able to provide “a detailed, longitudinal picture” of a claimant's alleged disability, than non-treating sources such as consultative examiners. Id. § 404.1527(c)(2). When the opinion of a treating source regarding 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, ” it is given controlling weight. Id. However, “[i]f a physician's opinion is not supported by clinical evidence or if it is inconsistent with other substantial evidence, it should be accorded significantly less weight.” Craig, 76 F.3d at 590.
If the ALJ determines that a treating physician's opinion should not be considered controlling, the ALJ must then analyze and weigh all of the medical opinions in the record, taking into account 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). An ALJ may not reject medical evidence for the wrong reason or no reason. See Wireman v. Barnhart, No. 2:05-CV-46, 2006 WL 2565245, at *8 (W.D. Va. Sept. 5, 2006). “In most cases, the ALJ's failure to consider a physician's opinion (particularly a treating physician) or to discuss the weight given to that opinion will require remand.” Love-Moore v. Colvin, No. 7:12-CV-104-D, 2013 WL 5350870, at *2 (E.D. N.C. Sept. 24, 2013) (citations omitted). However, “[a]n ALJ's determination as to the weight to be assigned to a medical opinion generally will not be disturbed absent some indication that the ALJ has dredged up ‘specious inconsistencies,' or has failed to give a sufficient reason for the weight afforded a particular opinion.” Dunn v. Colvin, 607 Fed.Appx. 264, 267 (4th Cir. 2015) (quoting Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992)).
In formulating the RFC from June 2015 through March 2019, the ALJ gave the state agency consultants' opinions little weight because they were “inconsistent with [Claimant's] psychotic ideation and psychiatric hospitalizations, which would substantially interfere with his ability to sustain regular work attendance.” (R. 20). However, in formulating the RFC for after March 19, 2019, the ALJ gave the same opinions more weight because they were “reasonably consistent with the evidence during this period.” (R. 26). The opinions themselves, which were issued in 2017, did not change-the ALJ simply found that they were more consistent with the RFC after March 19, 2019 because the ALJ found that Claimant would not require a limitation for being absent from work.
However, it makes little sense for die unchanged 2017 opinions to become more reliable in 2019. Because the opinions did not change, their reliability should also not change; either they were consistent with the evidence at the time they were issued, or they were not. The court cannot trace the ALJ's reasoning in giving the opinions little weight for the pre-March 2019 RFC but more weight for the post-March 2019 RFC when they were written in 2017. If anything, it seems that the ALJ formulated the RFCs first and then analyzed whether the opinions were consistent with the RFCs, i.e., whether they were consistent with a limitation for absences. See Mascio, 780 F.3d at 639 (holding that formulating an RFC first and then determining the consistency of a Claimant's statements with the RFC “gets things backwards”). Accordingly, remand is appropriate for the ALJ to more thoroughly explain why the 2017 opinions were entitled to little weight for the pre March 2019 RFC but more weight for the post-March 2019 RFC.
Claimant further contends that despite relying on the state agency consultants' opinions to find medical improvement, the ALJ did not include all the limitations contained in the opinions in the RFC and that her failure to explain the inconsistency was error. Pl.'s Mem. [DE-14] at 24-29. Even when an ALJ gives significant weight to a medical opinion, “an ALJ is not bound to accept or adopt all the limitations set forth therein.” Morgan v. Colvin, No. 5:15-CV-266-D, 2016 WL 4217822, at *5 (E.D. N.C. July 21, 2016) (collecting cases), adopted by 2016 WL 4218333 (E.D. N.C. Aug. 9, 2016); see also Eddie v. Berryhill, No. 5:16-CV-801-D, 2017 WL 4002147, at *4 (E.D. N.C. Aug. 24, 2017) (“the ALJ was not required to adopt fully the limitations suggested by Dr. Wilson's opinion because he assigned it great weight”), adopted by 2017 WL 3995813 (E.D. N.C. Sept. 11, 2017); Gallion v. Berryhill, No. 5:16-CV-00312-FL, 2017 WL 3431915, at *5 (E.D. N.C. July 26, 2017);Bundy v. Colvin, No. 5:14-CV-55-FL, 2015 WL450915, at *5 (E.D. N.C. Feb. 3, 2015). Here, however, the ALJ's explanation for why she gave the 2017 opinions less weight for the period before March 2019 and more weight for the post-March 2019 RFC is lacking, and on remand, the ALJ should more thoroughly address the opinions and the limitations contained therein.
2. Unsuccessful Work Attempt
Claimant contends the ALJ did not properly evaluate whether his return to work and subsequent termination in August 2019 was an unsuccessful work attempt. PL's Mem. [DE-14] at 18-24. An unsuccessful work attempt is “work that [a claimant is] forced to stop or to reduce below the substantial gainful activity level after a short time because of [an] impairment.” 20 C.F.R. §§ 404.1574(a)(1), 404.1574(c); see also S.S.R. 84-25, 1984 WL 49799, at *2 (Jan. 1, 1984) (stating that the unsuccessful work attempt policy is “to be used in continuing disability cases in determining whether, because of work activity, disability continues or ceases”). The criteria for analyzing whether a work attempt lasting between three and six months, such as Claimant's 2019 work attempt, is an unsuccessful work attempt are as follows:
If work lasted more than 3 months, it must have ended or have been reduced to the non-SGA level within 6 months due to the impairment or to the removal of special conditions... related to the impairment that are essential to the further performance of work and:
a. There must have been frequent absences due to the impairment; or
b. The work must have been unsatisfactory due to the impairment; or
c. The work must have been done during a period of temporary remission of the impairment; or
d. The work must have been done under special conditions.Id. at *2-3.
The ALJ noted that Claimant was “ultimately fired due to poor performance, ” but the ALJ did not analyze whether the poor performance might be due to Claimant's impairments, and she did not consider whether the employment ended due to Claimant's impairments, whether he had frequent absences, whether the work was done during a period of temporary remission, or whether it was done under special conditions. While an unsuccessful work attempt relates most directly to a question of whether a claimant engaged in substantial gainful activity, see 20 C.F.R. § 404.1574(a), the policy concern is to avoid penalizing claimants for attempting to return to work. See Jenkins v. Heckler, 783 F.Supp. 998, 999 (D.S.C. 1992). Here, the ALJ cited Claimant's work attempt as evidence that his statements about the intensity, persistence, and limiting effects of his symptoms were not consistent with the medical and other evidence, but the ALJ did not consider whether the work attempt was unsuccessful. Citing a work attempt to discredit a claimant's statements while not considering whether the work attempt was unsuccessful is error requiring remand. See Hartsog v. Berryhill, No. 5:16-CV-20-RLV, 2017 WL3710084, at *6(W.D. N.C. Aug. 28, 2017) (“Remand is appropriate for consideration of' whether a work attempt was unsuccessful when the ALJ “noted that [the claimant's] work history reduces [his] credibility” but did not discuss whether the claimant “left his position as an automobile mechanic due to his impairments or limitations.”). Accordingly, on remand, if the ALJ relies upon Claimant's 2019 employment as evidence that his statements are inconsistent with the medical or other evidence or otherwise counts the work attempt against Claimant, then the ALJ should consider whether the work attempt was unsuccessful and terminated due to Claimant's impairments.
3. Claimant's Testimony
Claimant contends that substantial evidence does not support the ALJ's finding that his testimony was not entirely consistent with the medical and other evidence. Pl.'s Mem. [DE-14] at 25-28. In particular, Claimant contends that the ALJ erroneously considered the types of daily activities Claimant performs but did not consider the extent to which he performs them. Id. at 2628.
When assessing a claimant's RFC, it is within the province of the ALJ to determine whether a claimant's statements are consistent with the medical and other evidence. See Shively v. Heckler, 739 F.2d 987, 989-90 (4th Cir. 1984) (“Because he had the opportunity to observe the demeanor and to determine the credibility of the claimant, the ALJ's observations concerning these questions are to be given great weight.”) (citation omitted). Federal regulation 20 C.F.R. § 404.1529(a) provides the authoritative standard for the evaluation of subjective complaints of pain and symptomology, whereby “the determination of whether a person is disabled by pain or other symptoms is a two-step process.” Craig, 76 F.3d at 593-94. First, the ALJ must objectively determine whether the claimant has medically documented impairments that could cause his or her alleged symptoms. S.S.R. 16-3p, 2016 WL 1119029, at *3 (Mar. 16, 2016); Hines v. Barnhart, 453 F.3d 559, 564 (4th Cir. 2006). If the ALJ makes that determination, he must then evaluate “the intensity and persistence of the claimant's pain[, ] and the extent to which it affects her ability to work, ” Craig, 16 F.3d at 595, and whether the claimant's statements are supported by the objective medical record. S.S.R. 16-3p, 2016 WL 1119029, at *4; Hines, 453 F.3d at 564-65.
Objective medical evidence may not capture the full extent of a claimant's symptoms, so where the objective medical evidence and subjective complaints are at odds, the ALJ should consider all factors concerning the “intensity, persistence and limiting effects” of the claimant's symptoms. S.S.R. 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. § 404.1529(c)(3) (showing a complete list of factors). The ALJ may not discredit a claimant solely because his or her subjective complaints are not supported by objective medical evidence, Craig, 76 F.3d at 595-96, but neither is the ALJ required to accept the claimant's statements at face value; rather, the ALJ must “evaluate whether the statements are consistent with objective medical evidence and the other evidence.” S.S.R. 16-3p, 2016 WL 1119029, at *6; see Taylor v. As true, No. 5:10-CV-263-FL, 2011 WL 1599679, at *4-8 (E.D. N.C. Mar. 23, 2011), adopted by 2011 WL 1599667 (E.D. N.C. Apr. 26, 2011).
The ALJ summarized Claimant's testimony as follows:
At the hearing, the claimant testified that he does not participate in any community activities, but spends time interacting with his eleven year old daughter. He further testified that he performs computer coding and develops apps as a hobby. He further admitted that he is now on medication for his mental impairments, which helps with his symptoms, but does make him tired. He also reports difficulty interacting with others at the workplace, and notes that this issue has not improved with his treatment.(R. 26).
The ALJ found that Claimant's statements were inconsistent with the evidence because his last psychiatric hospitalization occurred in 2018; he worked in 2019 but was “fired due to poor performance”; the most recent medical opinion “indicated no issues with performing simple tasks”; Claimant “testified that he performs computer coding and app development as hobbies, which indicates at least some ability to perform complex tasks”; Claimant “testified that he has difficulty getting along with others” but “admits that he spends time with his eleven year old daughter”; the medical records describe him as pleasant; the most recent mental status examination showed intact memory, insight, and judgment; and Claimant stated that “his symptoms have improved with medication.” (R. 26).
Claimant contends that the ALJ improperly considered the types of activities he performs, including computer coding, app development, and spending time with his daughter, but not the extent to which he performs those activities. Claimant testified that he “occasionally spend[s] time with [his] daughter, ” (emphasis added), and he is occasionally involved in her extracurricular activities. (R. 59). When asked about computer coding, he stated, “I just develop applications sometimes on my own just to keep up to date in my profession. So, if I do get a job, I'm able to perform the duties.” (R. 60). Accordingly, it is not clear that Claimant develops apps as a hobby, as the ALJ characterized, but rather performs computer coding “sometimes” to stay up to date in the field. On remand, the ALJ should consider the entirety of Claimant's testimony, namely that he occasionally spends time with his daughter and sometimes develops apps to keep his skills up to date. See Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (finding error when the ALJ stated that the claimant could “maintain her personal hygiene, cook, [and] perform light household chores” but did not consider the claimant's testimony that she has trouble dressing and bathing, she can only prepare simple meals, it takes her longer than normal to do laundry and shop, and she sometimes “spends the entire day on the couch”); Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 263 (4th Cir. 2017).
4. Substantial Evidence Does Not Support the RFC
Aside from the state agency consultants' opinions, Claimant's work attempt, and his testimony-all of which were insufficiently discussed by the ALJ, as described above-the ALJ relied upon a lack of hospitalizations in two years and a single mental status examination in formulating the post-March 19, 2019 RFC. The ALJ found that because Claimant had not been hospitalized since 2018 and because the most recent mental status examination indicated intact memory, insight, and judgment, he no longer requires a limitation for being absent one day or more per month. (R. 26-27, 2664). However, a lack of hospitalizations and a single mental status examination is not sufficient evidence to conclude that Claimant's RFC improved, considering that mental health symptoms are known to wax and wane over time. See Testamark v. Berryhill, 736 Fed.Appx. 395, 398-99 (4th Cir. 2018) (“Because symptoms of mental illness may wax and wane over the course of treatment, the fact that Testamark exhibited fair judgment or appeared cooperative on certain specific occasions is not inconsistent with the conclusion that she is unable to work.”); Lawson v. Berryhill, No. 5:16-CV-869-FL, 2017 WL 7053965, at *5 (E.D. N.C. Dec. 19, 2017) (finding that where the Claimant's mental impairments produced good days and bad days, the ALJ erred in “picking out certain records from certain days that indicate Claimant's improved symptoms in order to discount the impressions of his treating physician, who understands the longitudinal history of his impairments”), adopted by 2018 WL 576843 (E.D. N.C. Jan. 26, 2018); Dockery v. Saul, No. 5:20-CV-8-MR, 2021 WL 600954, at *4 (W.D. N.C. Feb. 16, 2021); Williams v. Colvin, No. 3:13CV701-RLV, 2015 WL 9094803, at *9 n.17 (W.D. N.C. Dec. 16, 2015). On remand, the ALJ should more thoroughly explain how the post-March 2019 evidence shows that Claimant no longer requires a limitation for being absent from work one or more days per month. See Ruggiero v. Saul, No. 5:19-CV-546-D, 2021 WL 1145678, at *7-8 (E.D. N.C. Mar. 12, 2021) (finding that the ALJ did not sufficiently explain how the claimant's mental impairments improved), adopted by 2021 WL 1134589 (E.D. N.C. Mar. 24, 2021); Craft, 2013 WL 4674857, at *2 (finding that substantial evidence did not support the ALJ's determination of medical improvement when “[t]he high risk of recurrence [of cancer] was not accounted for, nor were the ongoing and severe effects of the plaintiff's neuropathy, ” and “there were absolutely no laboratory findings or improvements in other symptoms to support a finding that the plaintiff's condition had changed.”)
While the examination noted intact insight, judgment, and fund of knowledge, it also indicated that Claimant has ongoing mild schizophrenia symptoms, significant social anxiety, no social life, and significant financial stressors and anxieties. (R. 2663-64).
VI. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Claimant's Motion for Judgment on the Pleadings [DE-13] be ALLOWED, Defendant's Motion for Judgment on the Pleadings [DE-16] be DENIED, and the case be REMANDED to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until October 5, 2021 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g, 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed by within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).