Opinion
Civil Action No. 6:16-1901-JMC-KFM
03-24-2017
Charline Lanier, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
REPORT OF MAGISTRATE JUDGE
This case is before the court for a report and recommendation pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.), concerning the disposition of Social Security cases in this District, and Title 28, United States Code, Section 636(b)(1)(B).
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.
The plaintiff brought this action pursuant to Section 205(g) of the Social Security Act, as amended (42 U.S.C. 405(g)) to obtain judicial review of a final decision of the Commissioner of Social Security denying her claim for disability insurance benefits under Title II of the Social Security Act.
ADMINISTRATIVE PROCEEDINGS
The plaintiff filed an application for disability insurance benefits ("DIB") on August 16, 2012, alleging that she became unable to work on August 7, 2012. The application was denied initially and on reconsideration by the Social Security Administration. On March 12, 2013, the plaintiff requested a hearing. The administrative law judge ("ALJ"), before whom the plaintiff and Robert E. Brabham, Jr., an impartial vocational expert, appeared at a hearing on August 22, 2014, considered the case de novo and, on October 27, 2014, found that the plaintiff was not under a disability as defined in the Social Security Act, as amended. 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 April 15, 2016. The plaintiff then filed this action for judicial review.
Mr. Brabham appeared at the hearing, but he did not testify (Tr. 14).
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 meets the insured status requirements of the Social Security Act through December 31, 2015.
(2) The claimant has not engaged in substantial gainful activity since August 7, 2012, the alleged onset date (20 C.F.R. § 404.1571 et seq).
(3) The claimant has the following severe impairments: chronic anemia; diabetes mellitus, type II, non-insulin dependent; irritable bowel syndrome; obesity; and inflammatory arthritis (20 C.F.R. § 404.1520(c)).
(4) The claimant does not have an impairment or combination of impairments that met 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. §§ 404.1520(d), 404.1525, and 404.1526).
(5) After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform "medium" work as defined in 20 C.F.R. 404.1567(c) except she is to avoid even moderate exposure to hazards such as machinery and heights.
(6) The claimant is capable of performing past relevant work as an Insurance Clerk (DOT 241.632-022). This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 C.F.R. § 404.1565).
(7) The claimant has not been under a disability, as defined in the Social Security Act, from August 7, 2012, through the date of this decision (20 C.F.R. § 404.1520(f)).
The only issues before the court are whether proper legal standards were applied and whether the final decision of the Commissioner is supported by substantial evidence.
APPLICABLE LAW
The Social Security 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 42 U.S.C. § 423(d)(1)(A) 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 at least 12 consecutive months.
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 equals an illness contained in the Social Security Administration's Official Listings of Impairments found at 20 C.F.R. Part 4, Subpart P, App. 1, (4) has an impairment that prevents past relevant work, and (5) has an impairment that 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. Id. § 404.1520(a)(4).
A plaintiff is not disabled within the meaning of the Act if he can return to past relevant work as it is customarily performed in the economy or as the claimant actually performed the work. SSR 82-62, 1982 WL 31386, at *3. The plaintiff bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5). He must make a prima facie showing of disability by showing he is unable to return to his past relevant work. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983).
Once an individual has established an inability to return to his past relevant work, the burden is on the Commissioner to come forward with evidence that the plaintiff can perform alternative work and that such work exists in the regional economy. The Commissioner may carry the burden of demonstrating the existence of jobs available in the national economy that the plaintiff can perform despite the existence of impairments that prevent the return to past relevant work by obtaining testimony from a vocational expert. Id.
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the correct law was applied. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Consequently, the Act precludes a de novo review of the evidence and requires the court to uphold the Commissioner's decision as long as it is supported by substantial evidence. See Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). The phrase "supported by substantial evidence" is defined as :
evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is "substantial evidence."Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) (citation omitted).
Thus, it is the duty of this court to give careful scrutiny to the whole record to assure that there is a sound foundation for the Commissioner's findings and that the conclusion is rational. Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
EVIDENCE PRESENTED
Evidence Before the ALJ
The plaintiff was 51 years old on her alleged disability onset date (August 7, 2012) and 53 years old on the date of the ALJ's decision (October 27, 2014). She has an associate's degree in administration and management and past relevant work experience as an insurance clerk (Tr. 23, 35).
The plaintiff began seeing her primary care physician, Henry Crotwell, M.D., on March 28, 2006 (Tr. 310). Dr. Crotwell treated the plaintiff for multiple medical problems including diabetes, musculoskeletal pain, hypertension, chronic anemia, depression, and anxiety. In November 2006, laboratory studies showed low hemoglobin at 11.5, low hematocrit at 34.3, high rheumatoid factor at 17, high glucose level at 122, and high sedimentation rate at 53 (Tr. 341-43).
On December 22, 2006, Daniel L. Kirby, M.D., a rheumatologist, evaluated the plaintiff for complaints of joint pain symptoms and a recently positive rheumatoid factor. Dr. Kirby's indicated that the plaintiff had osteoarthritis in her knees and the small joints of her hands and feet. He found general tenderness in the plaintiff's lumbosacral spine and mildly reduced range of motion in her cervical and lumbar spines. Dr. Kirby noted a rash over the plaintiff's lower extremities. In summary, he stated that the plaintiff had an approximately six month history of progressive, predominantly large joint arthralgia with clinical findings consistent with osteoarthritis and bursitis in her hands, knees, hips, and shoulders (Tr. 390). He stated that the plaintiff clearly had markers in laboratory findings to suggest the presence of an inflammatory process including an elevated sedimentation rate at 59, thrombocytosis with a platelet count of 577,000, an elevated CRP at 1.1 and a slightly elevated C3 complement level. Dr. Kirby stated that the plaintiff appeared to have developed an inflammatory, seronegative, predominantly large joint arthritis. The origin of her rash was still unclear, and Dr. Kirby recommended biopsy assessment and evaluation (Tr. 391).
On March 12, 2008, Lisa Spina, M.D., a hematologist, initially evaluated the plaintiff. Dr. Spina noted that the plaintiff had an approximately four-year history of anemia and had been taking oral iron and a B-12 tablet daily. However, the plaintiff reported continued fatigue and overall weakness. Dr. Spina diagnosed ongoing anemia of uncertain etiology, a sedimentation rate of 67, and a rheumatoid factor of 26. Dr. Spina stated that the plaintiff had anemia of chronic disease with iron deficiency, and she recommended that the plaintiff continue taking the oral iron and B-12 tablet. She also recommended that the plaintiff follow up with Dr. Kirby due to a possible autoimmune disorder (Tr. 418-20). The plaintiff underwent a bone marrow biopsy on March 27, 2008, which was consistent with anemia of chronic disease and slight reactive thrombocytosis (Tr. 416, 424).
On May 15, 2008, Dr. Kirby stated that the plaintiff was seen in consult due to chronic disease related anemia and consideration of possible rheumatic disease as an underlying cause. He indicated that the plaintiff had a history of cutaneous vasculitis and a positive rheumatoid factor in the past. The plaintiff had no documented rheumatoid arthritis and no evidence of disease symptoms or findings. She had minimal arthralgia and tendonitis but no findings to suggest the presence of inflammatory polyarthritis. Dr. Kirby stated that these findings along with findings of anemia of chronic disease and substantial comorbidities including hypertension and diabetes lead to a reasonable consideration of her rheumatic inflammatory illness. Dr. Kirby stated that all serologic and other lab findings were negative and normal. Dr. Kirby gave the plaintiff an injection in her left shoulder subacromial bursa because of substantial shoulder pain (Tr. 389).
On July 9, 2008, Dr. Spina explained that anemia of chronic disease might have been due to a chronic inflammation (Tr. 410).
On June 30, 2009, the plaintiff was seen at Catawba Mental Health Center for an initial clinical assessment. The plaintiff reported feeling very depressed and nervous. Mental status examination revealed an anxious and depressed mood. The plaintiff reported insomnia, decreased appetite, adequate energy levels, and decreased libido. She stated that she had been taking care of her mother-in-law, who died in May 2008, and that her husband got sick right after her mother-in-law died (Tr. 348). The plaintiff also complained of stress from her job "ending soon" (Tr. 348, 352). The plaintiff was diagnosed with generalized anxiety disorder, anxiety disorder not otherwise specified ("NOS"), and major depressive disorder. Her Global Assessment of Functioning ("GAF") was 51 (Tr. 348-55). On September 22, 2009, the plaintiff had to drop from services because she lost her insurance (Tr. 356).
A GAF score is a number between 1 and 100 that measures "the clinician's judgment of the individual's overall level of functioning." See Am. Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental Disorders, 32-34 (Text Revision 4th ed. 2000) ("DSM-IV"). A GAF score between 51 and 60 indicates moderate symptoms or moderate difficulty in social, occupational, or school functioning. Id. The court notes that the fifth edition of the DSM, published in 2013, has discontinued use of the GAF for several reasons, including "its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice." See Am. Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental Disorders, 16 (5th ed. 2013) ("DSM-V").
On July 28, 2010, the plaintiff complained to Dr. Crotwell that she was under a lot of stress, particularly at work with some co-workers (Tr. 284). The plaintiff told Dr. Crotwell in November 2010 that she takes an occasional Xanax (about two times a week) for anxiety and to help her sleep (Tr. 282).
On July 10, 2012, Dr. Crotwell reevaluated the plaintiff for followup of her diabetes, hypertension, hyperlipidemia, anxiety neurosis, and frequent headaches. Dr. Crotwell noted that the plaintiff still had no insurance and no job and could not afford much lab work. The plaintiff reported doing 100% better on citalopram for her anxiety and only having to use Xanax very infrequently. The plaintiff reported continued headaches, but they were not as severe, and she was using tramadol several times a week for her headaches. Dr. Crotwell continued the plaintiff's medications (Tr. 280). The plaintiff's A1C was at 9.6 on this date (Tr. 316).
On August 22, 2012, Dr. Crotwell evaluated the plaintiff for complaints of pain running down her left leg from her buttocks to her mid thigh. The plaintiff indicated that tramadol had not helped. On examination, the plaintiff had full range of motion in her back without pain and no problem with straight leg raising (Tr. 279). Dr. Crotwell took x-rays, which did not show an acute abnormality. Dr. Crotwell prescribed Vicodin and Flexeril (Tr. 279, 344).
On October 17, 2012, at the Commissioner's request, Dr. Crotwell completed a Mental Medical Source Statement indicating that the plaintiff's mental diagnoses were depression and anxiety. Dr. Crotwell indicated that he had prescribed citalopram and Xanax which had helped the plaintiff's condition. He stated that he had not recommended psychiatric care. Dr. Crotwell stated that the plaintiff was oriented to time, had an intact thought process, had appropriate thought content, had a worried/anxious mood/affect, and had adequate attention, concentration, and memory. Dr. Crotwell opined that the plaintiff had a "slight" work-related limitation in function due to her mental condition. He stated that the plaintiff "[t]ends get very anxious with any stressful situations" (Tr. 384).
Debra C. Price, Ph.D., a state agency psychologist, reviewed the plaintiff's claim for benefits in November 2012 (including Dr. Crotwell's October 2012 medical source statement) and opined that the plaintiff did not have a severe mental impairment (Tr. 68). Xanthia Harkness, Ph.D., also a state agency psychologist, reviewed the plaintiff's claim for benefits in January 2013 (including Dr. Crotwell's October 2012 assessment) and concurred with Dr. Price's findings (Tr. 80).
On November 8, 2012, Donna Stroud, M.D., a medical consultant on contract to the Administration, completed a Physical Residual Functional Capacity Assessment. Dr. Stroud indicated that the plaintiff was capable of performing medium work with environmental limitations (Tr. 69-71). On January 30, 2013, Matthew Fox, M.D., a medical consultant on contract to the Administration, completed a Physical Residual Functional Capacity Assessment affirming the agency's prior determination (Tr. 81-83).
On February 20, 2013, Dr. Crotwell evaluated the plaintiff for followup of her diabetes, irritable bowel syndrome, chronic headaches, anxiety, and depression. She was having a lot of problems with her spouse, her son was going through a divorce that involved a custody fight over her grandchild, and her nephew was involved in an auto accident and had a brain injury. Dr. Crotwell noted that the plaintiff was crying and upset at this appointment. Her blood sugars were running high (Tr. 455).
The plaintiff participated in services at Catawba Mental Health Center from February 28, 2013, until March 13, 2013. She presented with depressed mood and irritation. She felt overwhelmed by financial stressors and interpersonal issues with her husband, son, and other family members. She was given a GAF of 70 (Tr. 388).
A GAF score between 61 and 70 indicates some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functioning pretty well. DSM-IV, 32-34.
On March 26, 2013, Dr. Crotwell evaluated the plaintiff for multiple complaints including headaches (Tr. 454). On April 10, 2013, he evaluated the plaintiff for diabetes and diarrhea. He indicated that the plaintiff had been evaluated by a gastroenterologist in the past but had never had a colonoscopy. He noted that the plaintiff had been losing weight and had gotten her blood sugar level down, but that it continued to be a little higher than desirable. He adjusted her medications. He stated, "She is under a lot of stress which I think could aggravate this problem" (Tr. 453). On August 21, 2013, her A1C was down from 9.6 to 7.7. Dr. Crotwell noted that the plaintiff had financial problems and no insurance. He recommended that she have her cholesterol checked and that she continue to try to lose weight and exercise (Tr. 449).
On September 25, 2013, Dr. Crotwell evaluated the plaintiff for back pain. The plaintiff reported straining her back in the pool with her grandkids. On examination, the plaintiff had tenderness in the right paravertebral area of her spine accentuated with lateral bending and hyperextension. Dr. Crotwell diagnosed back strain and prescribed Flexeril and Mobic (Tr. 452). On October 8, 2013, the plaintiff reported continued back pain. She indicated that at times her pain radiated down her right leg. The plaintiff also reported that sitting and standing increased her pain. Dr. Crotwell indicated that he would consider sending the plaintiff for an MRI, but, since she had no insurance, he prescribed another month of Flexeril and Mobic. Dr. Crotwell advised the plaintiff to "protect the back, not do any lifting, squatting, etc." (Tr. 444). On December 10, 2013, the plaintiff reported waking up in the middle of the night with pain, tingling, and some numbness in both hands, but especially in her right fingertips. Dr. Crotwell diagnosed carpal tunnel syndrome and instructed the plaintiff to make splints to use at night, and he prescribed Naprosyn (Tr. 442).
On January 14, 2014, Dr. Crotwell evaluated the plaintiff for increased pain. The plaintiff reported that her back pain radiated down her left leg to her ankle. She also complained of pain in all her fingers and both her hands. Dr. Crotwell recommended that the plaintiff follow up with a rheumatologist (Tr. 441).
On February 3, 2014, James M. Wilson, M.D., a rheumatologist, evaluated the plaintiff for complaints of chronic joint fatigue, pain, and intermittent faint rashes. Dr. Wilson noted that the plaintiff had a chronic abnormal sedimentation rate without specific explanation, chronic diarrhea problems, skin problems, joint problems, and enthesitis problems (Tr. 466-67). On February 26, 2014, Dr. Wilson reevaluated the plaintiff and reviewed her lab work, which showed multiple lines of systemic inflammation including increased alpha-2 globulins, an ANA 1:40, a rheumatoid factor of 15, a CRP of 18, which is elevated, a sedimentation rate of 34, a hematocrit of 34.6, and blood sugar of 215. He decided that the plaintiff had an apparent inparavertebral area of her spine accentuated with lateral bending and hyperextension. Dr. Crotwell diagnosed back strain and prescribed Flexeril and Mobic (Tr. 452).
On February 3, 2014, James M. Wilson, M.D., a rheumatologist, evaluated the plaintiff for complaints of chronic joint fatigue symptoms pain, and intermittent faint rashes. Dr. Wilson noted that the plaintiff had a chronic abnormal sedimentation rate without specific explanation, chronic diarrhea problems, skin problems, joint problems, and enthesitis problems (Tr. 466-67). On February 26, 2014, Dr. Wilson reevaluated the plaintiff and reviewed her lab work, which showed multiple lines of systemic inflammation including increased alpha-2 globulins, an ANA 1:40, a rheumatoid factor of 15, a CRP of 18, which is elevated, a sedimentation rate of 34, a hematocrit of 34.6, and blood sugar of 215. He decided that the plaintiff had an apparent inflammatory process evidenced by multiple abnormal lab studies and by fatigue, chronic diarrhea, joint problems, and enthesitis problems. Dr. Wilson thought there was the potential for some benefit from a systemic immune/inflammatory medication. He changed her medication from Mobic to diflunisal and started a trial of Sulfasalazine (Tr. 465).
On April 10, 2014, Dr. Wilson reevaluated the plaintiff for followup of inflammatory polyarthropathy. The plaintiff reported moderate to severe pain in her lower back, mid back, neck, bilateral hands, bilateral hips, bilateral knees, and bilateral forefoot. She also presented with associated symptoms of diarrhea, fatigue, and a gelling phenomenon. On examination, the plaintiff had crepitus in her cervical spine and knees, tenderness in her shoulders and hips, swelling in her hands, and bunions on both feet. Dr. Wilson diagnosed inflammatory arthritis. He noted that the combination of the plaintiff's inflammatory arthritis and diarrhea limited her treatment options. He started the plaintiff on a trial of azathioprine (Tr. 462-63).
On April 15, 2014, Dr. Crotwell evaluated the plaintiff. He indicated that the plaintiff's lumbar MRI did not show any significant disk herniation or bulge. The plaintiff complained of chronic gastrointestinal problems with diarrhea five to six times a day. In addition, she had begun to wake up in the night with diarrhea. The plaintiff reported that she was seeing a psychologist, Dr. Jordan, due to chronic depression and anxiety. She said she was taking Xanax infrequently for panic-type attacks. Dr. Crotwell noted that the plaintiff was on tramadol for arthritis, metformin for diabetes, losartan/hydrochlorothiazide for hypertension, pravastatin for hyperlipidemia, ranitidine for reflux, Xanax and citalopram for anxiety/depression, and Imodium and phenergan for gastrointestinal problems. Dr. Crotwell indicated that the plaintiff had multiple medical problems that had worsened over the last couple years and noted that her worst problems were inflammatory changes and arthritis pain and weakness. Her biopsy results were compatible with vasculitis, but a definite diagnosis concerning that had not been reached. Dr. Crotwell stated, "Because of her multiple medical problems, I do not feel like she is capable of holding down a full-time employment at this time and she probably should seek disability" (Tr. 472).
On May 22, 2014, Dr. Wilson evaluated the plaintiff for presumable systemic inflammatory process that had given her inflammatory arthritis as well as inflammatory diarrhea problems. It was noted that these problems had been going on for years and that the plaintiff had been applying for disability since 2012 since she felt she could not work. Dr. Wilson noted that the plaintiff did not have any insurance, and since she had been unable to tolerate several medications, Humira would be tried next, though this would likely be difficult because Lanier was self-pay. Dr. Wilson indicated that he could not provide a letter stating that the plaintiff was disabled because he had no way of determining that since disability was "a legal definition, not medical." He continued the plaintiff on diflunisal and stated, "Unfortunately, she really needs some type of a systemic inflammatory disease treatment to try to help the whole picture. I am not certain if she is going to be able to get that started or not" (Tr. 473).
The plaintiff testified at the administrative hearing that she was terminated from her last job as a social worker (Tr. 36). She stated that she was terminated because she was under a lot of stress due to her husband's illness, her own physical issues and "nerves," and due to having problems with two co-employees (Tr. 37).
The plaintiff testified that her bowels become uncontrollable, and her nerves got "real bad." She felt sick and nauseated every day. She experienced pain in her lower back, hip, left leg, right knee joint, left arm, fingers, head, and jaw (Tr. 38-39). She stated that she could sit 30 minutes to an hour before having to walk or reposition herself (Tr. 41). She could walk maybe 50 yards (Tr. 43). She could stand about an hour sometimes, and at other times she could only stand about 30 minutes before having to sit down or lean forward to get pressure off her back. She can alternate between sitting and standing (Tr. 42).
The plaintiff testified that she attended church every Sunday when she was able. The plaintiff testified that she is the preacher/pastor of her church, which is held in her home with four people attending. She testified that if she is unable to finish preaching, her husband or son will take over for her (Tr. 55). The service is an hour long. The plaintiff stated that she did not have formal training to become a pastor. It takes her 30-40 minutes to prepare her sermon, and she preaches 20-30 minutes on Sunday (Tr. 56). The plaintiff testified that she does not receive any pay or benefits for preaching (Tr. 58).
Evidence Submitted to Appeals Council
A disability questionnaire was completed by Dr. Crotwell on March 17, 2015. He indicated that he has treated the plaintiff since March 28, 2006, and he saw her two to three times a year. His diagnoses were inflammatory arthritis, chronic diarrhea, chronic depression/anxiety, diabetes mellitus, hypertension, and GERD. Dr. Crotwell indicated that the plaintiff's impairments were expected to last at least 12 months. He stated that the plaintiff was not a malingerer. Dr. Crotwell explained that the plaintiff experienced chronic, constant pain in her back, hip, legs, and hands. He indicated that prolonged walking, standing, or sitting precipitated and/or aggravated her pain. Dr. Crotwell opined that the plaintiff could sit less than one hour of an eight-hour workday with a note stating "unsure - Rheumatology better answer." He indicated that she could stand and/or walk less than one hour of an eight-hour workday. Dr. Crotwell indicated that the plaintiff should avoid continuous sitting in an eight-hour workday because it would aggravate her pain. He stated that the plaintiff's symptoms would likely increase if she were placed in a competitive work environment. Dr. Crotwell stated that during an average eight-hour work-day, the plaintiff would experience pain, fatigue, or other symptoms severe enough to interfere with her attention and concentration "frequently," from 1/3-2/3 of eight-hour workday. She would need to take unscheduled breaks to rest at unpredictable intervals during an eight-hour workday. Dr. Crotwell stated that he did not know how often and how long she would need to rest before returning to work. Dr. Crotwell stated that the plaintiff had anxiety/depression especially due to her health concerns and pain. He opined that the plaintiff's symptoms and related limitations applied as far back as August 7, 2012, and noted that the plaintiff had seen a rheumatologist in 2008 (Tr. 485-89).
ANALYSIS
The plaintiff argues that (1) the ALJ erred by failing to properly evaluate the demands of her past relevant work, and (2) the Appeals Council erred in failing to remand the case to the ALJ for consideration of Dr. Crotwell's March 2015 opinion (doc. 13 at 15, 18).
Past Relevant Work
The plaintiff argues that the ALJ failed to comply with Social Security Ruling ("SSR") 82-62 in that he failed to evaluate the mental demands of her past relevant work as an insurance clerk (doc. 13 at 18-20). At the fourth step of the sequential evaluation process, the ALJ compares the claimant's residual functional capacity ("RFC") with the physical and mental demands of the kind of work the claimant has done in the past to determine whether the claimant has the RFC to do his or her past work, either as the claimant actually performed it or as generally performed in the national economy. 20 C.F.R. § 404.1560(b). SSR 82-62 provides:
In finding that an individual has the capacity to perform a past relevant job, the determination or decision must contain among the findings the following specific findings of fact:SSR 82-62, 1982 WL 31386, at *4. The ruling further provides:
1. A finding of fact as to the individual's RFC.
2. A finding of fact as to the physical and mental demands of the past job/occupation.
3. A finding of fact that the individual's RFC would permit a return to his or her past job or occupation.
Any case requiring consideration of [past relevant work] will contain enough information on past work to permit a decision as to the individual's ability to return to such past work (or to do other work).
Adequate documentation of past work includes factual information about those work demands which have a bearing on the medically established limitations. Detailed information about strength, endurance, manipulative ability, mental demands, and other job requirements must be obtained as appropriate. This information will be derived from a detailed description of the work obtained from the claimant, employer, or other informed source. Information concerning job titles, dates work was performed, rate of compensation, tools and machines used, knowledge required, the extent of supervision, and independent judgment required, and a description of tasks and responsibilities will permit a judgment as to the skill level and the current relevance of the individual's work experience. In addition, for a claim involving a mental/emotional impairment, care must be taken to obtain a precise description of the particular job duties which are likely to produce tension and anxiety, e.g., speed, precision, complexity of tasks,
independent judgments, working with other people, etc., in order to determine if the claimant's mental impairment is compatible with the performance of such work. Persons with physical impairments (e.g., cardiovascular or gastrointestinal disorders) may have performed stressful tasks. This may also require a decision as to whether the impairment is compatible with the performance of such work. . . .Id. at *3.
A claimant will be found to be "not disabled" when it is determined that he or she retains the RFC to perform the actual functional demands and job duties of a particular past relevant job or the functional demands and job duties of the occupation as generally required by employers throughout the national economy. SSR 82-61, 1982 WL 31387, at *2. The Dictionary of Occupational Titles ("DOT") descriptions "can be relied upon--for jobs that are listed in the DOT - to define the job as it is usually performed in the national economy." Id. See 20 C.F.R. § 404.1560(b)(2) (ALJ may use testimony of a vocational expert or other resources such as the DOT to determine whether a claimant can perform past relevant work given his or her RFC).
Here, the ALJ found as follows at step four of the sequential evaluation process:
The claimant is capable of performing past relevant work as an Insurance Clerk (DOT 241.632-022). This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 C.F.R. § 404.1565).(Tr. 23).
In comparing the claimant's residual functional capacity with the physical and mental demands of this work, the undersigned finds that the claimant is able to perform generally performed [sic]. Her past relevant work's exertion level is "sedentary" and it is considered "skilled" or with a specific vocational preparation factor of five.
The ALJ appears to have transposed numbers in the DOT occupational code for the position of insurance clerk, as the undersigned could find no occupation with the cited code in the DOT (Tr. 23 (citing DOT 241.632.022) (emphasis added)). The DOT occupational code for insurance clerk is 214.362-022, and, as described by the ALJ, it is sedentary work with a specific vocational preparation ("SVP") time of five. See DOT 214.362-022, 1991 WL 671871.
As set forth above, the first requirement of SSR 82-62 is a finding of fact as to the claimant's RFC. SSR 82-62, 1982 WL 31386, at *4. The ALJ here found the plaintiff had the RFC for medium work with not even moderate exposure to hazards (Tr. 19). The plaintiff contends that the ALJ did not properly consider her mental impairments and erred in finding that her depression and anxiety were not severe impairments (doc. 13 at 19-20). The ALJ relied on the opinions of two state agency psychologists who opined that the plaintiff did not have a severe mental impairment (Tr. 17; see Tr. 68, 80). The ALJ also noted that the plaintiff had not received psychotherapy since 2009, when she attributed her anxiety and depression to situational issues, and that she reported improvement on medication for her anxiety (Tr. 17 (citing Tr. 280, 348)). The Commissioner also notes that Dr. Crotwell stated in an October 2012 questionnaire that medication had helped the plaintiff's anxiety and depression, her attention/concentration were adequate, her memory was good, and her mental condition was only a "slight" work-related limitation (Tr. 384). However, Dr. Crotwell also stated in the questionnaire that the plaintiff "tends to get very anxious with any stressful situation" (Tr. 384). The ALJ did not mention this opinion in the decision and should do so upon remand. Further, there is no indication that the ALJ considered the plaintiff's depression and anxiety, or any issues she might have with stress, following the severe impairment analysis at step two of the sequential evaluation process.
The ALJ also did not mention the following statement by Dr. Crotwell in an April 15, 2014, office note: "Because of her multiple medical problems, I do not feel like she is capable of holding down a full-time employment this time, and she probably should seek disability" (Tr. 472). --------
As to the second requirement of SSR 82-62, the ALJ described the demands of the occupation of an insurance clerk as sedentary, skilled work and cited the DOT (Tr. 23). See DOT 214.362-022, 1991 WL 671871. The plaintiff did not testify at the hearing as to the mental and physical requirements of her past work, and the vocational expert did not testify (Tr. 14; see generally Tr. 30-62). However, an "ALJ may rely on the general categories of job information in the DOT to presumptively show how Plaintiff's [past relevant work] was customarily performed." Segar v. Colvin, C.A. No. 5:13-1038 DCN, 2014 WL 7148720, at *12 (D.S.C. Dec. 15, 2014) ("(citations omitted).
Lastly, the ALJ determined that in "comparing the claimant's [RFC] with the physical and mental demands of this work . . . claimant is able to perform [it] as generally performed" (Tr. 23). Courts in this district have found an analysis that does not make any findings as to the specific tasks required to perform past relevant work, simply relying on exertional categories and DOT numbers provided by a vocational expert, "sufficient, though perhaps not ideal." Riley v. Colvin, C.A. No. 9:14-3229-DCN, 2016 WL 1253187, at *5 (D.S.C. March 31, 2016) (citing Duren v. Colvin, C.A. No. 6:13-3142, 2015 WL 1268163, at *4 (D.S.C. Mar. 19, 2015) (affirming ALJ decision over objection that "the ALJ did not provide specific findings or analysis regarding the physical and mental demands of her past relevant work" where ALJ "provid[ed] a DOT number and occupational title that correspond[ed] with the plaintiff's past work" and "relied on the testimony of the [vocational expert] that the [past relevant work] involved physical and mental demands that were consistent with the plaintiff's RFC"); Robinson v. Astrue, C.A. No. 8:11-CV-03375, 2013 WL 625583, at *13-14 (D.S.C. Jan. 23, 2013), report and recommendation adopted by 2013 WL 633590 (D.S.C. Feb. 20, 2013) (noting that "a [vocational expert] may offer expert opinion testimony in response to a hypothetical question about whether a person with the physical and mental limitations imposed by the claimant's medical impairment(s) can meet the demands of the claimant's previous work" and "the ALJ is permitted to rely on the general job categories of the DOT as presumptively descriptive of a claimant's prior work")).
However, here, as discussed above, the ALJ did not consider the plaintiff's anxiety and depression or the evidence regarding her limitations in handling stress in the RFC assessment. Furthermore, the ALJ did not have the testimony of a vocational expert stating that the physical and mental demands of the occupation of insurance clerk were compatible with the plaintiff's RFC. Moreover, it does not appear that the ALJ considered any mental limitations in comparing the plaintiff's RFC with the mental demands of her past skilled work. Where a mental impairment is at issue, "care must be taken to obtain a precise description of the particular job duties which are likely to produce tension and anxiety, e.g., speed, precision, complexity of tasks, independent judgments, working with other people, etc., in order to determine if the claimant's mental impairment is compatible with the performance of such work." SSR 82-62, 1982 WL 31386, at *3. This may be particularly important where the past relevant work is skilled, which is described as follows:
Skilled work requires qualifications in which a person uses judgment to determine the machine and manual operations to be performed in order to obtain the proper form, quality, or quantity of material to be produced. Skilled work may require laying out work, estimating quality, determining the suitability and needed quantities of materials, making precise measurements, reading blueprints or other specifications, or making necessary computations or mechanical adjustments to control or regulate the work. Other skilled jobs may require dealing with people, facts, or figures or abstract ideas at a high level of complexity.20 C.F.R. § 404.1568(c).
Based upon the foregoing, the undersigned recommends that this case be remanded for further administrative consideration of the plaintiff's alleged mental impairments, including her ability to handle stress; the physical and mental demands of the plaintiff's past relevant work; and whether the plaintiff is capable of performing her past relevant work.
Remaining Allegation of Error
The plaintiff further argues that new evidence submitted to the Appeals Council might have affected the fact-finder's decision, and remand is therefore required pursuant to Meyer v. Astrue, 663 F.3d 700 (4th Cir. 2011) (doc. 13 at 15-18). The new evidence includes a questionnaire completed by treating physician Dr. Crotwell on March 17, 2015, the findings of which are set forth in detail above (Tr. 485-89). The Appeals Council specifically made the evidence a part of the record (Tr. 6). In light of the court's recommendation that this matter be remanded for further consideration as set forth above, the court need not address this remaining issue in detail. 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); Hancock v. Barnhart, 206 F. Supp.2d 757, 763-764 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). However, as part of the overall reconsideration of this claim upon remand, the ALJ should consider the entire record, including the records submitted to the Appeals Council and particularly Dr. Crotwell's March 2015 questionnaire.
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 March 24, 2017
Greenville, South Carolina