Opinion
Civil Action No. 6:19-2604-CMC-KFM
11-16-2020
Ladevia Kinley, Plaintiff, v. Andrew M. Saul, Commissioner of Social Security, Defendant.
REPORT OF MAGISTRATE JUDGE
This case is before the court for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.), concerning the disposition of Social Security cases in this District, and 28 U.S.C. § 636(b)(1)(B). The plaintiff brought this action pursuant to Section 1631(c)(3) of the Social Security Act, as amended (42 U.S.C. § 1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security denying her claim for supplemental security income benefits under Title XVI of the Social Security Act.
A report and recommendation is being filed in this case, in which one or both parties declined to consent to disposition by the magistrate judge.
ADMINISTRATIVE PROCEEDINGS
The plaintiff protectively filed an application for supplemental security income ("SSI") on April 12, 2016, alleging that she became unable to work on July 1, 2014. The application was denied initially and on reconsideration by the Social Security Administration. On March 6, 2017, the plaintiff requested a hearing. The administrative law judge ("ALJ"), before whom the plaintiff and Chaddrick Middleton, an impartial vocational expert, appeared on April 5, 2018, considered the case de novo, and on July 31, 2018, found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 10-23). The ALJ's finding became the final decision of the Commissioner of Social Security when the Appeals Council denied the plaintiff's request for review on July 18, 2019 (Tr. 1-5). The plaintiff then filed this action for judicial review.
In making the determination that the plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant has not engaged in substantial gainful activity since April 12, 2016, the application date (20 C.F.R. § 416.971 et seq.)
(2) The claimant has the following severe impairments: sarcoidosis with reactive airway disease, irritable bowel syndrome (IBS), and obesity (20 C.F.R. § 416.920(c)).
(3) The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 416.920(d), 416.925, 416.926).
(4) After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform less than the full range of light work as defined in 20 C.F.R. § 416.967(b) except the claimant could occasionally balance, stoop, kneel, crouch, crawl, or climb stairs/ramps and should never climb ladders, ropes, or scaffolds. The claimant could occasionally be exposed to dust, fumes, gases, odors, and pulmonary irritants. Additionally, due to symptomology, the claimant would be off-task for 5% of the workday.
(5) The claimant has no past relevant work (20 C.F.R. § 416.965).
(6) The claimant was born on July 8, 1976, and was 39 years old, which is defined as a younger individual age 18-49, on the date the application was filed (20 C.F.R. § 416.963).
(7) The claimant has at least a high school education and is able to communicate in English (20 C.F.R. § 416.964).
(8) Transferability of job skills is not an issue because the claimant does not have past relevant work.
(9) Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that
exist in significant numbers in the national economy that the claimant can perform (20 C.F.R. §§ 416.969, 416.969(a)).
(10) The claimant has not been under a disability, as defined in the Social Security Act, since April 12, 2016, the date the application was filed (20 C.F.R. § 416.920(g)).
APPLICABLE LAW
Under 42 U.S.C. § 1382c(a)(3)(A), (H)(i), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do 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 months." 20 C.F.R. § 416.905(a).
To facilitate a uniform and efficient processing of disability claims, the Social Security 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 that meets or medically equals an impairment contained in the Listing of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1, (4) can perform his past relevant work, and (5) can perform other work. Id. § 416.920. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. § 416.920(a)(4).
A claimant must make a prima facie case of disability by showing he is unable to return to his past relevant work because of his impairments. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). Once an individual has established a prima facie case of disability, the burden shifts to the Commissioner to establish that the plaintiff can perform alternative work and that such work exists in the national economy. Id. (citing 42 U.S.C. § 423(d)(2)(A)). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Id. at 192.
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings "are supported by substantial evidence and were reached through application of the correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Id. In reviewing the evidence, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Id. Consequently, even if the court disagrees with Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
EVIDENCE PRESENTED
The plaintiff was 39 years old at the time her application was filed (April 12, 2016) and 42 years old on the date of the ALJ's decision (July 31, 2018). She graduated from high school and has no past relevant work (Tr. 21, 46-47).
On June 15, 2015, Richard Carpenter, M.D., of Elloree Family Practice, evaluated the plaintiff for complaints of abdominal pain. The plaintiff indicated that her pain was located in the left upper quadrant, and she described it as chronic, dull, and intermittent. The plaintiff reported that her symptoms began six months earlier. She reported that her symptoms did "not limit [her] activities." Her physical examination was unremarkable. Dr. Carpenter diagnosed unspecified abdominal pain and Type II diabetes. He prescribed Bentyl and provided samples of dexilante (Tr. 256-57).
On November 3, 2015, Dr. Carpenter evaluated the plaintiff for followup. She reported chronic abdominal pain and diarrhea, which she related to having her gallbladder removed. Her symptoms were so severe she could not comfortably attend her unemployment class. Her pain was located in her epigastric area. On examination, the plaintiff's abdominal area was tender to palpation, and she had dull pain. Dr. Carpenter referred her to gastroenterology (Tr. 254-55).
On December 31, 2015, Dr. Carpenter evaluated the plaintiff for complaints of bilateral leg pain. The plaintiff had a history of sarcoidosis and neuropathy. Dr. Carpenter diagnosed leg pain, unspecified. Dr. Carpenter prescribed prednisone and refilled fluconazole (Tr. 252-53).
On March 30, 2016, Paul Kirschenfeld, M.D., of Carolina Pulmonary, evaluated the plaintiff for followup of sarcoidosis and reactive airway disorder ("RAD"). Dr. Kirschenfeld noted that the plaintiff was seen for the first time in more than two years and that she was last seen in 2014 for sarcoidosis noted at the time of her cholecystectomy. Dr. Kirschenfeld noted that the plaintiff did not have a tissue biopsy. Her initial pulmonary function test was consistent with a mild restrictive defect. Chest x-rays revealed bilateral hilaradenopathy but no interstitial lung disease. The plaintiff reported that she had one bad episode and that she had to turn on a fan. She also complained that she had been constantly smelling smoke for some time, even though nothing was burning. The plaintiff reported some associated shortness of breath, but she did okay with normal activity. She reported dyspnea when trying to run. Dr. Kirschenfeld assessed pulmonary sarcoidosis, restrictive airway disease, obesity, and dyspnea on exertion (Tr. 259-63).
On April 12, 2016, Muhammad Yunis, M.D., evaluated the plaintiff, who reported a three-year history of loose bowel movements, up to six times a day, which she related to her gallbladder surgery. Her gallbladder was removed due to gallstones and abdominal pain off and on for 20 years. She reported that her abdominal pain did not stop with surgery, and she started having loose bowel movements. She described her appetite as "good" and her weight as "stable." The plaintiff reported that she usually laid down and stayed in bed for hours until the pain disappeared on its own or until she vomited or had a bowel movement giving her relief. Although she complained of "crampy" abdominal pain, she denied needing emergent medical care or narcotic pain medication to address her symptoms (Tr. 279). Physical examination found no abnormalities. Dr. Yunis diagnosed the plaintiff with irritable bowel syndrome ("IBS") and prescribed Viberzie and vitamin B12 (Tr. 279-80).
On May 10, 2016, Dr. Yunis evaluated the plaintiff for diarrhea, post cholecystectomy IBS, and sarcoidosis. She reported that her bowel movements and epigastric pain were the same, but she was feeling better regarding bowel noises and movements. She reported that her pain lasted up to 20 minutes and was not burning in nature or related to meals or food. Dr. Yunis assessed longstanding IBS with post cholecystectomy diarrhea, sarcoidosis, hypertension, diabetes, and vitamin B12 deficiency. He prescribed cholestyramine and omeprazole (Tr. 267-69).
On June 24, 2016, the plaintiff underwent an esophagogastroduodenoscopy, which showed benign gastric mucosa with minimal mild nonspecific chronic gastritis. The test showed no abnormalities, and gastric biopsies were negative. The plaintiff was advised to avoid foods that triggered IBS and to take her medication an hour before each meal. She was prescribed dicyclomine (Tr. 273-81).
On July 1, 2016, Dr. Yunis evaluated the plaintiff for followup. She reported that she could not get Viberzi from her insurance and that she had no response from cholestyramine and hyoscyamine. Her bowel movements and pain were the same. Physical examination findings were unremarkable. Dr. Yunis noted that the plaintiff's esophagogastroduodenoscopy showed excessive retching and spasms (Tr. 271-72).
On July 5, 2016, Dr. Carpenter completed a South Carolina Department of Social Services Medical Release/Physician's Statement on behalf of the plaintiff. Dr. Carpenter indicated that the plaintiff was permanently disabled and unable to work or participate in activities for work. He noted that her primary diagnosis was IBS and that her condition was chronic and permanent (Tr. 285-86).
On July 29, 2016, Dr. Yunis evaluated the plaintiff for followup. She reported that she felt better taking dicyclomine an hour before each meal. She reported that she had three bowel movements the day before and that she had less pain than before. Dr. Yunis explained to the plaintiff that IBS medications did not "make it go away" but "[made] it tolerable." Dr. Yunis also stressed that she should avoid stress and trigger foods and recommended that she continue routine followup care. Dr. Yunis increased the plaintiff's dosage of dicyclomine to three times a day and prescribed Imodium (Tr. 313-15).
On August 17, 2016, the plaintiff a pulmonary function test that suggested a restricted pattern. No response to inhaled bronchodilators was noticed during the testing. Her diffusion capacity was reduced (Tr. 289-95).
On September 9, 2016, Seham El-Ibiary, M.D., a medical consultant on contract to the Administration, completed a physical residual functional capacity ("RFC") assessment finding that the plaintiff could perform sedentary work with postural and environmental limitations (Tr. 77-79).
On September 16, 2016, Dr. Yunis provided a statement on behalf of the plaintiff, noting that he had treated the plaintiff since April 12, 2016. He noted that she was suffering from IBS that prevented her from working permanently (Tr. 297).
On January 23, 2017, Stephen Burge, M.D., a medical consultant on contract to the Administration, completed a physical RFC assessment. Dr. Burge found that the plaintiff was capable of performing light work with postural and environmental limitations (Tr. 90-92).
On March 1, 2017, Dr. Yunis provided another statement on behalf of the plaintiff. Dr. Yunis noted that she was suffering from longstanding IBS with post cholecystectomy state, sarcoidosis, hypertension, diabetes, and vitamin D deficiency. Dr. Yunis opined that the plaintiff's chronic IBS prevented her from working. He noted that her symptoms were chronic abdominal pain, chronic diarrhea, intestinal spasms, and occasional vomiting. Dr. Yunis noted that the plaintiff had many incidents where she had not been able to make it to the restroom on time, and at this stage of the disease, she wore diapers. Dr. Yunis noted that the plaintiff was unable to enjoy outings to eat because whatever she ate sent her immediately to the restroom. Dr. Yunis noted that the plaintiff's intestinal spasms caused her to have a slumped over appearance that lasted several hours. Dr. Yunis opined that due to her medical history the plaintiff unable to do any type of work (Tr. 299).
On March 10, 2017, Dr. Yunis evaluated the plaintiff for followup. She complained of daily cramps and bloating. Dr. Yunis prescribed hyoscyamine (Tr. 311-12). On April 4, 2017, the plaintiff reported that she had a good response to hyoscyamine. Dr. Yunis advised her to eat more fiber, and he refilled hyoscyamine (Tr. 308-10).
On April 13, 2017, Dr. Kirschenfeld evaluated the plaintiff for followup of sarcoidosis, reactive airway disease with pulmonary function test, and chest x-rays. Dr. Kirschenfeld noted that the plaintiff's pulmonary function test showed decreased flows with suboptimal forced vital capacity maneuver, normal lung volumes except for decreased in the ERV, decreased in diffusion capacity with corrects to normal with alveolar volume, normal airway resistance, no significant change in the FVC or FEV1, and improvement in the diffusion capacity compared to the previous study. Chest x-rays showed bilateral hilaradenopathy with no evidence of interstitial lung disease. Decreased inspiratory effort was noted. Dr. Kirschenfeld assessed pulmonary sarcoidosis, restrictive airway disease, dyspnea on exertion, and obesity (Tr. 330-33).
On October 4, 2017, Dr. Yunis evaluated the plaintiff for followup. She reported her response to hyoscyamine was fading. She complained of daily bloating and cramps. Dr. Yunis noted that there was a possibility of lymphocytic colitis in addition to IBS. He ordered a colonoscopy with rectal biopsies (Tr. 305-07).
On November 30, 2017, Dr. Carpenter provided a statement on behalf of the plaintiff. Dr. Carpenter noted that the plaintiff suffered from IBS, which led to frequent and unexpected episodes of abdominal cramping and diarrhea. Dr. Carpenter noted that the condition was chronic and severe enough that the plaintiff was unable to maintain employment (Tr. 301).
At the hearing on April 5, 2018, the ALJ asked the vocational expert the following hypothetical:
Hypothetical #1, I'd like you to assume a hypothetical individual of the Claimant's age, her education, with no past relevant work history, with the following limitations. Limited to the light exertional level as defined by the regulations, with no more than occasional stooping, kneeling, crouching, crawling, balancing, climbing ramps and stairs, no climbing ladders, ropes, or scaffolds. No more than occasional exposure to dust, fumes, gasses, odors, and pulmonary irritants, and will be off task 5% of the workday, and that is in addition to the normal breaks provided, and will continue on a recurring basis. Given all the limitations of Hypothetical #1, is there any other work available to that hypothetical individual?(Tr. 66). The vocational expert indicated that this hypothetical would allow for work such as a garment sorter, counter clerk, or produce sorter (id.). The ALJ's next hypothetical changed the exertional level to sedentary with all the other limitations from hypothetical one. The vocational expert indicated that this would allow work such as a charge account clerk, telephone quotation clerk, or addressor (Tr. 67). The ALJ clarified what he meant by "off task":
[I]t would be for any number of reasons, including, but not limited to the individual can't maintain concentration, persistence, and pace, for periods of two hours or more, or has to sit down, lay down, elevate their feet, anything that takes them out of the work environment, have to take excessive breaks, over and above the normal breaks that are provided.(Tr. 67-68). The ALJ's third hypothetical increased the off task time to 20% of the workday in addition to normal breaks. The vocational expert indicated that this would preclude all work. Next, the ALJ asked about a limitation of being absent from work three days per month on a recurring basis, and the vocational expert responded that this would preclude all work (Tr. 68).
ANALYSIS
The plaintiff argues that the ALJ failed to include significant limitations resulting from her impairments in the RFC assessment and improperly evaluated the opinions of her treating physicians (doc. 11 at 10-16).
Restroom Breaks
The plaintiff first argues that the ALJ failed to include significant functional limitations in the RFC assessment. The regulations provide that a claimant's RFC is the most that she can still do despite her limitations. 20 C.F.R. § 416.945(a). It is the ALJ's responsibility to make the RFC assessment, and the ALJ does so by considering all of the relevant medical and other evidence in the record. Id. §§ 416.945(a)(3), 416.946(c).
Social Security Ruling ("SSR") 96-8p provides in pertinent part:
The RFC 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 in paragraph (b), (c), and (d) of 20 C.F.R. §§ 404.1545 and 416.945. Only after that may RFC be expressed in terms of the exertional level of work, sedentary, light, medium, heavy and very heavy.SSR 96-8p, 1996 WL 374184, at *1. The ruling further provides:
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). In assessing RFC, the adjudicator must discuss the individual's ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and describe the maximum amount of each work-related activity the individual can perform based on the evidence available in the case record. The adjudicator must also explain how any material
inconsistencies or ambiguities in the evidence in the case record were considered and resolved.Id. at *7 (footnote omitted).
Further, "[t]he 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." Id. The Fourth Circuit Court of Appeals has stated as follows with regard to the analysis of a claimant's subjective complaints:
[T]he determination of whether a person is disabled by pain or other symptoms is a two-step process. First, there must be objective medical evidence showing the existence of a medical impairment(s) which results from anatomical, physiological, or psychological abnormalities and which could reasonably be expected to produce the pain or other symptoms alleged. . . .Craig v. Chater, 76 F.3d 585, 594-95 (4th Cir. 1996) (citations and internal quotation marks omitted) (emphasis in original). In Hines v. Barnhart, a Fourth Circuit Court of Appeals panel held, "Having met his threshold obligation of showing by objective medical evidence a condition reasonably likely to cause the pain claimed, [the claimant] was entitled to rely exclusively on subjective evidence to prove the second part of the test, i.e., that his pain [was] so continuous and/or so severe that it prevent[ed] him from working a full eight-hour day." 453 F.3d 559, 565 (4th Cir. 2006). However, the court in Hines also acknowledged that "'[o]bjective medical evidence of pain, its intensity or degree (i.e., manifestations of the functional effects of pain such as deteriorating nerve or muscle tissue, muscle spasm, or sensory or motor disruption), if available, should be obtained and considered.'" Id. at 564. The court further acknowledged:
***
It is only after a claimant has met her threshold obligation of showing by objective medical evidence a medical impairment reasonably likely to cause the pain claimed, that the intensity and persistence of the claimant's pain, and the extent to which it affects her ability to work, must be evaluated.
While objective evidence is not mandatory at the second step of the test, "[t]his is not to say, however, that objective medical evidence and other objective evidence are not crucial to evaluating the intensity and persistence of a claimant's pain and the extent to which it impairs her ability to work. They most certainly are. Although a claimant's allegations about her pain may not be discredited solely because they are not substantiated by objective evidence of the pain itself or its severity, they need not be accepted to the extent they are inconsistent with the available evidence, including objective evidence of the underlying impairment, and the extent to which that impairment can reasonably be expected to cause the pain the claimant alleges she suffers."Id. at 565 n.3 (quoting Craig, 76 F.3d at 595). See Johnson v. Barnhart, 434 F.3d 650, 658 (4th Cir. 2005); 20 C.F.R. § 416.929(c)(2) ("We must always attempt to obtain objective medical evidence and, when it is obtained, we will consider it in reaching a conclusion as to whether you are disabled. However, we will not reject your statements about the intensity and persistence of your pain or other symptoms or about the effect your symptoms have on your ability to work solely because the available objective medical evidence does not substantiate your statements.").
A claimant's symptoms, including pain, are considered to diminish his capacity to work to the extent that alleged functional limitations are reasonably consistent with objective medical evidence and other evidence. 20 C.F.R. § 416.929(c)(4). Furthermore, "a formalistic factor-by-factor recitation of the evidence" is unnecessary as long as the ALJ "sets forth the specific evidence he relies on" in evaluating the claimant's subjective symptoms. White v. Massanari, 271 F.3d 1256, 1261 (10th Cir. 2001). In making these determinations, the ALJ's decision "must contain specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms." SSR 16-3p, 2017 WL 5180304, at *10 (applicable date Mar. 28, 2016). The factors to be considered by an ALJ in evaluating the intensity, persistence, and limiting effects of an individual's symptoms include the following:
(1) the individual's daily activities;20 C.F.R. § 416.929(c).
(2) the location, duration, frequency, and intensity of the individual's pain or other symptoms;
(3) factors that precipitate and aggravate the symptoms;
(4) the type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms;
(5) treatment, other than medication, the individual receives or has received for relief of pain or other symptoms;
(6) any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and
(7) any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms.
Moreover, "[t]he RFC assessment must always consider and address medical source opinions. If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted." SSR 96-8p, 1996 WL 374184, at *7. See 20 C.F.R. § 416.927(b). The regulations further direct ALJs to accord controlling weight to a treating physician's opinion that is well-supported by medically-acceptable clinical and laboratory diagnostic techniques and that is not inconsistent with the other substantial evidence of record. 20 C.F.R. § 416.927(c)(2). If a treating physician's opinion is not given controlling weight, the ALJ must proceed to weigh the treating physician's opinion, along with all the other medical opinions of record, based upon the following non-exclusive list of factors: (1) the examining relationship; (2) the length of the treatment relationship and the frequency of the examinations; (3) the nature and extent of the treatment relationship; (4) the evidence with which the physician supports his opinion; (5) the consistency of the opinion; and (6) whether the physician is a specialist in the area in which he is rendering an opinion. Id. § 416.927(c)(1)-(5). See also Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005).
These regulations apply for applications, like the plaintiff's, filed before March 27, 2017. See 20 C.F.R. § 416.927. For applications filed on or after March 27, 2017, a new regulatory framework for considering and articulating the value of medical opinions has been established. See id. § 416.920c. See also 82 Fed. Reg. 5844-01, 2017 WL 168819 (revisions to medical evidence rules dated Jan. 18, 2017, and effective Mar. 27, 2017).
The plaintiff specifically argues that the ALJ failed to adequately explain why the RFC assessment did not account for her need for restroom breaks due to diarrhea, spasms, and vomiting (doc. 11 at 10-13). The plaintiff testified that she is in the bathroom up to eight times per day, has diarrhea constantly, must wear incontinence supplies, suffers from spasms, and vomits two to four times a week (Tr. 50-51). She further testified that she is unable to predict when she will have bouts of diarrhea, retching, or vomiting and that she has about four episodes a week when she has bowel movements before she can get to the restroom (Tr. 63-64). In March 2017, treating physician Dr. Yunis opined that the plaintiff's chronic IBS prevented her from working, noting that her symptoms were chronic abdominal pain, chronic diarrhea, intestinal spasms, and occasional vomiting. Dr. Yunis noted that the plaintiff had many incidents where she had not been able to make it to the restroom on time, and at this stage of the disease she had resulted to wearing diapers. Dr. Yunis noted that the plaintiff is unable to enjoy outings to eat because whatever she ate sent her immediately to the restroom, and her intestinal spasms caused her to have a slumped over appearance that lasted several hours (Tr. 299). Similarly, in November 2017, treating physician Dr. Carpenter noted that the plaintiff suffered from IBS, which led to frequent and unexpected episodes of abdominal cramping and diarrhea, and the condition was chronic and severe enough that the plaintiff was unable to maintain employment (Tr. 301).
The ALJ found that the plaintiff's IBS was a severe impairment (Tr. 12). In the RFC assessment, the ALJ noted the plaintiff's testimony regarding diarrhea, spasms, and vomiting; her treatment history; and the opinions of her treating physicians and the state agency medical consultants (Tr. 14-21). The ALJ ultimately determined that the plaintiff could perform light work with postural and environmental limitations and, as pertinent here, "[a]dditionally, due to symptomology, the [plaintiff] would be off-task for 5% of the workday" (Tr. 13).
The Commissioner argues that the ALJ limited the plaintiff "to jobs that would allow [her] to be off-task 5% of each workday as a means of accommodating any IBS symptoms," the ALJ "discussed his reasoning for the RFC assessment," and "[i]n so doing, the ALJ fully accounted for all of [the plaintiff's] credibly established functional limitations in the [RFC] assessment" (doc. 12 at 2, 10). However, as argued by the plaintiff, the ALJ failed to offer any explanation for how he arrived at the conclusion that being off-task for 5% of the workday accommodated the plaintiff's IBS symptoms.
In the RFC assessment, the ALJ noted that the earliest medical evidence was dated in June 2015, about a year after the plaintiff's alleged onset date (Tr. 16). With regard to the plaintiff's testimony that she had diarrhea constantly, used the restroom up to ten times per day, and her doctors told her to wear diapers, the ALJ found that Dr. Carpenter's treatment notes did not indicate that the plaintiff's diarrhea was of the severity to require that she wear adult diapers and further found that the stability of the plaintiff's weight was "at odds with the [plaintiff's] allegations as to the frequency of her diarrhea" (Tr. 18). The ALJ further noted that Dr. Yunis' treatment notes did not mention that the plaintiff wore diapers, and an EGD for excessive wretching and spasms in June 2016 was negative and failed to identify any pathology (Tr. 18). The ALJ also noted that the plaintiff sat for almost an hour through her hearing and did not appear to be in pain, and she was not observed to walk hunched over as the plaintiff testified or as Dr. Yunis noted in his March 2017 statement (Tr. 19). The ALJ gave little weight to the statements of Drs. Carpenter and Yunis, noting that the record did not contain any treatment records from Dr. Carpenter after December 2015 and that the opinions appeared to be based on the plaintiff's allegations and were not supported by treatment records (Tr. 20). The ALJ gave partial weight to the RFC assessment by state agency medical consultant Dr. El-Ibiary, who found that the plaintiff could perform sedentary work with postural and environmental limitations, and great weight to the RFC assessment by state agency medical consultant Dr. Burge, who determined that the plaintiff could perform light work with postural and environmental limitations (Tr. 21). The ALJ concluded however, that the "evidence as a whole more persuasively establishe[d]" the RFC he assessed.
As argued by the plaintiff, the ALJ provided no source for his conclusion that the plaintiff would have to have weight loss to support her claims regarding the frequency of her diarrhea (doc. 11 at 12).
The state agency consultants did not find that the plaintiff's IBS was a severe impairment, and they did not have the opinions of Drs. Yunis and Carpenter at the time their RFC assessments were completed (Tr. 76, 80, 88-89, 92).
As set out above, the ALJ provided some explanation for finding that the "total evidence of record does not substantiate the [plaintiff's] allegations concerning her impairments, symptoms, and the ability to work" (Tr. 20), which "begs the question of how consistent [the] plaintiff's symptoms and their impact on [her] ability to work are with the medical evidence. In other words, the ALJ must determine to what degree [the] plaintiff is overstating [her] symptoms and limitations if [she] is overstating them." Glover v. Berryhill, C.A. No. 8:18-cv-880-RBH-JDA, 2019 WL 2514735, at *11 (D.S.C. Apr. 11, 2019), R&R adopted by 2019 WL 1923638 (D.S.C. Apr. 30, 2019). Here, the ALJ did not discuss or provide any support for his determination that the plaintiff's IBS symptoms were accommodated by being "off-task for 5% of the workday" (see Tr. 13). In a similar case, the United States District Court for the Southern District of West Virginia considered an RFC assessment finding the claimant would be off-task "less than 9% of the workday" due, in part, to her need for frequent access to the restroom. McNeely v. Saul, C.A. No. 2:20-cv-158, 2020 WL 5648214, at *8 (S.D.W. Va. Sept. 4, 2020), R&R adopted by 2020 WL 5649483 (S.D.W. Va. Sept. 22, 2020). The court noted that the limitation did not correspond to the plaintiff's testimony, any medical opinion, or other medical evidence in the record. Id. Rather, the only reference to the less than 9% limitation was in the ALJ's hypotheticals to the vocational expert. Id. Likewise, here, the 5% off-task limitation does not correspond to any evidence in the record, and the only reference to such a limitation is in the ALJ's hypotheticals to the vocational expert in this case (see Tr. 66-70).
As the court in McNeely stated, "While an ALJ is not obligated to base each conclusion in the RFC assessment on a specific piece of evidence, 'a proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion,' and '[t]he second component, the ALJ's logical explanation, is just as important as the other two.'" Id. (quoting Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019), as amended (Feb. 22, 2019)). Like McNeely, "[i]n this case, it is impossible for the reviewing Court to determine if the ALJ's assessment that [the plaintiff] would be off-task for [5%] of the workday is supported by substantial evidence without knowing the basis for the figure." Id. See, e.g., Richardson v. Saul, C.A. No. 4:19-cv-00128-FL, 2020 WL 3816317, at *6 (E.D.N.C. June 9, 2020) ("ALJ Anderson found that Richardson would be off-task due to pain and medication side effects. While this explains why she would be off-task, it does nothing to inform a reviewing court of how ALJ Anderson arrived at the figure—nine percent of the workday—or what evidence in the record supports this calculation.") (collecting cases), R&R adopted by 2020 WL 3799344 (E.D.N.C. July 7, 2020); Owens v. Saul, C.A. No. 1:19-cv-204, 2020 WL 4812697, at *10-11 (S.D.W. Va. Apr. 17, 2020) ("While the ALJ discussed Claimant's allegations, physical impairments, and pain, he did not articulate which impairments or symptoms caused Claimant to be off task, much less did the ALJ provide a basis for the specific assessment that Claimant would be off task for no more than nine percent of the workday."), R&R adopted by 2020 WL 4805451 (S.D.W. Va. Aug. 18, 2020); Cf. Painter v. Berryhill, C.A. No. 2:17-cv-04435, 2018 WL 5904510, at *11-12 (S.D.W. Va. Oct. 19, 2018) (finding that a 5% off-task limitation was supported by substantial evidence when it was based on the claimant's specific testimony regarding the frequency and length of her restroom breaks and other evidence that collectively tied into the 5% figure), R&R adopted by 2018 WL 5891750 (S.D.W. Va. Nov. 9, 2018).
Based upon the foregoing, the undersigned recommends that this matter be remanded for further analysis and explanation of the plaintiff's RFC as explained above. See, e.g., Mascio v. Colvin, 780 F.3d 632, 636-37 (4th Cir. 2015) (holding remand may be appropriate when the courts are left to guess at how the ALJ arrived at the conclusions and meaningful review is frustrated); see also Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (remanding where the ALJ failed to "build an accurate and logical bridge from the evidence to his conclusion") (citation omitted).
Remaining Allegation of Error
In light of the court's recommendation that this matter be remanded for further consideration as discussed above, the court need not specifically address the plaintiff's remaining allegation of error, as the ALJ will be able to reconsider and re-evaluate the evidence as part of the reconsideration of this claim. Hancock v. Barnhart, 206 F. Supp. 2d 757, 763-64 n.3 (W.D. Va. 2002) (on remand, the ALJ's prior decision has no preclusive effect as it is vacated and the new hearing is conducted de novo); see Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3d Cir. 2003) (remanding on other grounds and declining to address claimant's additional arguments). As such, on remand, the ALJ should also take into consideration the plaintiff's remaining allegation that the ALJ failed to properly evaluate the opinions of treating physicians Drs. Yunis and Carpenter (doc. 11 at 13-16).
CONCLUSION AND RECOMMENDATION
Now, therefore, based on the foregoing, it is recommended that the Commissioner's decision be reversed pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be remanded to the Commissioner for further consideration as discussed above.
IT IS SO RECOMMENDED.
s/Kevin F. McDonald
United States Magistrate Judge November 16, 2020
Greenville, South Carolina The attention of the parties is directed to the important notice on the following page.
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
300 East Washington Street
Greenville, South Carolina 29601
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).