Opinion
Civil Action 4:23-cv-03260-BHH-TER
03-12-2024
CYNTHIA LASLEY, Plaintiff, v. MARTIN O'MALLEY,[1] Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
This is an action brought pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. Section 405(g), to obtain judicial review of a “final decision” of the Commissioner of Social Security, denying Plaintiff's claim for disability insurance benefits (DIB) and supplemental security income (SSI). The only issues before the Court are whether the findings of fact are supported by substantial evidence and whether proper legal standards have been applied.
I. RELEVANT BACKGROUND
A. Procedural History
Plaintiff filed an application for DIB and SSI on December 21, 2018, alleging disability beginning on January 1, 2015. Her claims were denied initially and upon reconsideration. Thereafter, Plaintiff filed a request for a hearing. A hearing was held in December 2020, at which time Plaintiff and a vocational expert (VE) testified. The Administrative Law Judge (ALJ) issued an unfavorable decision on January 13, 2021, finding that Plaintiff was not disabled within the meaning of the Act. (Tr. 999). Plaintiff filed a request for review of the ALJ's decision. The Appeals Council denied the request for review. In 2021, Plaintiff filed an action in this court, and in December 2021, the action was remanded after a consented motion. (Tr. 1010). The ALJ held another hearing in March 2023. (Tr. 939). The ALJ issued an unfavorable decision in May 2023, finding that Plaintiff was not disabled within the meaning of the Act. (Tr. 931). Plaintiff filed this action in July 2023. (ECF No. 1).
B. Introductory Facts
Plaintiff was born in June 1959, and was fifty-five years old on the alleged onset date. (Tr. 930). Plaintiff has past relevant work as a waitress, bartender, server, paralegal, and brokerage clerk. (Tr. 929). Plaintiff alleges disability originally due to anxiety, depression, hypothyroidism, PTSD, high blood pressure, and Lyme disease. (Tr. 67).
C. The ALJ's Decision
In the decision of May 4, 2023, the ALJ made the following findings of fact and conclusions of law (Tr. 931):
1. The claimant meets the insured status requirements of the Social Security Act through June 30, 2015.
2. The claimant has not engaged in substantial gainful activity since January 1, 2015, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: obesity, Lyme's disease, depression, anxiety, posttraumatic stress disorder (hereinafter PTSD), migraines, tinnitus, and vertigo (20 CFR 404.1520(c) and 416.920(c)).
4. 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 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
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 CFR 404.1567(c) and 416.967(c) except the claimant should avoid concentrated exposure to hazards. She should avoid concentrated exposure to fumes, odors, dusts, gasses and poorly ventilated areas. The claimant can understand, remember, and carry out, simple, detailed but not complex instructions. She can have frequent interactions with public, supervisors and coworkers. She can frequently reach and handle.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on June 16, 1959, and was 55 years old, which is defined as an individual of advanced age, on the alleged disability onset date. The claimant subsequently changed age category to closely approaching retirement age (20 CFR 404.1563 and 416.963).
8. The claimant has at least a high school education (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled,” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. 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 CFR 404.1569, 404.1569a, 416.969, and 416.969a).
11. The claimant has not been under a disability, as defined in the Social Security Act, from January 1, 2015, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).
II. DISCUSSION
Plaintiff argues two similar issues. Plaintiff argues the ALJ failed to include social interaction limitations in the RFC from Dr. Kofoed's opinions, and within this argument, that Dr. McElwee's opinions supported Dr. Kofoed's opinions. (ECF No. 11 at 31-32). Relatedly, Plaintiff argues the ALJ erred when performing the 20 C.F.R. § 4014.1520c opinions evaluation. (ECF No. 11 at 33). Plaintiff argues: “The ALJ did not find Dr. Kofoed's opinion or Dr. McElwee's opinions persuasive, but provided conclusory and unsupported rationale for rejecting these opinions.” (ECF No. 11 at 33). Plaintiff notes the ALJ found the nonexamining state agency consultants' opinions persuasive, which were “simple routine tasks away from the public.” (ECF No. 11 at 33). Defendant argues the ALJ's analysis here was sufficient, was in accordance with the applicable law, and Plaintiff has failed to show that the ALJ's decision is not based on substantial evidence.
A. LEGAL FRAMEWORK
1. The Commissioner's Determination-of-Disability Process
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a “disability.” 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability 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. 42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983) (discussing considerations and noting the “need for efficiency” in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity (“SGA”); (2) whether he has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents him from doing SGA. See 20 C.F.R. § 404.1520. These considerations are sometimes referred to as the “five steps” of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).
The Commissioner's regulations include an extensive list of impairments (“the Listings” or “Listed impairments”) the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. § 404.1525. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, he will be found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that his impairments match several specific criteria or be “at least equal in severity and duration to [those] criteria.” 20 C.F.R. § 404.1526; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's past relevant work to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. § 404.1520(h).
A claimant is not disabled within the meaning of the Act if he can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, § 404.1520(a), (b); Social Security Ruling (“SSR”) 82-62 (1982). The claimant bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the regional economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that he is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of “any final decision of the Commissioner [ ] made after a hearing to which he was a party.” 42 U.S.C. § 405(g). The scope of that federal court review is narrowly-tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See id.; Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to “try these cases de novo or resolve mere conflicts in the evidence.” Vitek v. Finch, 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir.1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. “Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also 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 “even should the court disagree with such decision.” Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).Substantial evidence as a threshold is “not high;” “[u]nder the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains “sufficien[t] evidence” to support the agency's factual determinations.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019).
B. ANALYSIS
RFC/Opinions: public
Plaintiff argues the ALJ failed to include social interaction limitations in the RFC from Dr. Kofoed's opinions, and within this argument, that Dr. McElwee's opinions supported Dr. Kofoed's opinions. (ECF No. 11 at 31-32). Relatedly, Plaintiff argues the ALJ erred when performing the 20 C.F.R. § 4014.1520c opinions evaluation. (ECF No. 11 at 33). Plaintiff argues: “The ALJ did not find Dr. Kofoed's opinion or Dr. McElwee's opinions persuasive, but provided conclusory and unsupported rationale for rejecting these opinions.” (ECF No. 11 at 33). However, the ALJ found Dr. Kofoed's opinion partially persuasive and did not fully reject it. Plaintiff notes the nonexamining state agency consultants opined “simple routine tasks away from the public” and the ALJ found these opinions persuasive. (ECF No. 11 at 33).
An adjudicator is solely responsible for assessing a claimant's RFC. 20 C.F.R. § 416.946(c). In making that assessment, he must consider the functional limitations resulting from the claimant's medically determinable impairments. Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184, at *2. This ruling provides that: “The RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).” SSR 96-8, *7. “The adjudicator must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved.” Id. Additionally, “ ‘a necessary predicate to engaging in a substantial evidence review is a record of the basis for the ALJ's ruling,' including ‘a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence.' ” Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013)). The ALJ considers the evidence in the record as a whole when analyzing Plaintiff's claims, as does this court when reviewing the ALJ's decision. See Craig, 76 F.3d at 595.
The ALJ found an RFC of:
The claimant can understand, remember, and carry out, simple, detailed but not complex instructions. She can have frequent interactions with public, supervisors and coworkers.(Tr. 921)(emphasis added). In formulating an RFC, an ALJ is required to consider “opinions about what the individual can still do despite” impairments. SSR 96-8p.
In March 2019, consulting examiner Dr. Kofoed opined: “I believe she would do better in a quiet situation working alone or with just one or two people that she knows well. She may be easily flustered and anxious in a hectic, fast paced, public situation. It would appear there are mild-to-moderate impairments in her social functioning secondary to her anxiety issues.” (Tr. 392)(emphasis added). Plaintiff was capable of doing “possibly moderately complex tasks from a cognitive perspective.” (Tr. 392). Diagnostic impression was panic disorder without agoraphobia. (Tr. 393). Within the ALJ's evaluations of opinions by Dr. Lorimer and Dr. McElvee, the ALJ found Dr. Kofoed's opinions were more reasoned and well supported.
But see Ali v. Pruitt, 727 Fed.Appx. 692, 696 (D.C. Cir. 2018)(noting an opinion that one “would do best” in a private space was only a vague recommendation); Forcier v. Colvin, 2015 WL 12669891, at *5 (E.D. Wash. Dec. 14, 2015), report and recommendation adopted, 2016 WL 6039231 (E.D. Wash. Jan. 5, 2016)(finding an assessment of what “would be best” was not obligated to be accepted and had limited relevance). The ALJ found Dr. Kofoed's statement was an opinion and weighed it under the regulations; therefore, the analysis continues as an opinion under these circumstances.
In February 2023, Plaintiff's treating provider, Dr. McElvee completed a form. (Tr. 1346). Dr. McElvee opined Plaintiff could never deal with the public and could occasionally interact with supervisors because of “marked agoraphobia with panic attacks, history of multiple life traumas, socially isolated.” (Tr. 1344). Plaintiff could occasionally understand, remember, and carry out complex job instructions and could frequently understand, remember, and carry out detailed, but not complex job instructions. (Tr. 1345). Plaintiff could never relate predictably in social situations due to panic attacks. (Tr. 1345). Plaintiff needed more than usual breaks and would be absent more than four days a month.
“A mental disorder characterized by an irrational fear of leaving the familiar setting of home, or venturing into the open, so pervasive that a large number of external life situations are entered into reluctantly or are avoided; often associated with panic attacks.”Stedmans Medical Dictionary, 18100.
In 2019, the physical consulting examiner, Dr. Lorimer opined “not stable enough psychiatrically to be in the work place” and “do not think she would be able to work with either physical or office based work because of her anxiety.” (Tr. 397).
The ALJ found the opinions of Dr. Horn and Dr. Telford-Tyler supported and consistent with the record. (Tr. 927-928). In 2019, nonexamining state agency consultant Dr. Horn opined four separate times Plaintiff “has ability for simple routine tasks away from public” in finding Plaintiff was moderately limited in responding appropriately, in interacting appropriately with the public, and in ability to work in proximity to others without being distracted by them. (Tr. 72, 74, 75). On reconsideration, Dr. Telford-Tyler, Ph.D. found Dr. Horn's assessment consistent and supported and repeated the opinion of “ability for simple routine tasks away from public,” but also provided the addition of “capable of relating appropriately on a casual basis with the public but contact should be limited in order to reduce stress.” (Tr. 104, 107, 108).
The ALJ found Dr. Lorimer and Dr. McElvee not persuasive, Dr. Kofoed partially persuasive, and Dr. Horn and Dr. Telford-Tyler persuasive. (Tr. 926-929). The ALJ found that Dr. Horn and Dr. Telford-Tyler's conclusions were supported by and consistent with the medical evidence. (Tr. 926929). This is problematic as all five opinions in the record opined some degree of limitation greater than the RFC of “frequent” interaction with the public; two of these opinions the ALJ found persuasive, supported, and consistent without any reconciliation that those doctors opined “away from public.” (Tr. 928-929). The ALJ expressly stated the basis and support of his RFC finding of “frequent” public were Dr. Kofoed, Dr. Horn, and Dr. Telford-Tyler. (Tr. 929). While an ALJ is not required to convert exact opinions into an RFC, those three doctors' opinions contain opinions in conflict with the RFC. (Tr. 929). The court cannot meaningfully review the RFC determination and the evidence cited by the ALJ does not provide support for the ALJ's findings.
Additionally, this error has outcome determinative indications as the VE opined that if the limitation were “never interact with the public, and less than occasional interaction with coworkers and supervisors,” no jobs would be available. (Tr. 979-980).
Further, comparing the five opinions, some may support and be consistent with one another, and the ALJ did not analyze this when considering the § 404.1520c factors. Supportability and consistency are the most important of the factors for consideration, and the ALJ is required to explain how he considered the supportability and consistency factors in evaluating opinion evidence. 20 C.F.R. § 404.1520c(a), (b)(2). Given the record, the court cannot meaningfully review the ALJ's findings as to the opinions and the RFC. Resolving conflicting evidence with reasonable explanation is an exercise that falls within the ALJ's responsibility and is outside the court's scope of review. See Mascio v. Colvin, 780 F.3d 632, 637-40 (4th Cir. 2015). It is not the court's “role to speculate as to how the ALJ applied the law to its findings or to hypothesize the ALJ's justifications that would perhaps find support in the record.” Fox v. Colvin, 632 Fed.Appx. 750, 755 (4th Cir. Dec. 17, 2015). “The ALJ's failure to ‘build an accurate and logical bridge from the evidence to his conclusion' constitutes reversible error.” Lewis v. Berryhill, 858 F.3d 858, 868 (4th Cir. 2017)(internal citations omitted).
Remand is appropriate where inadequacies in the ALJ's analysis frustrate meaningful review. Mascio v. Colvin, 780 F.3d 632, 636-37 (4th Cir. 2015). Upon remand, the ALJ should take into consideration Plaintiff's briefed allegations of error and support findings with citation to substantial evidence and provide logical explanation from the evidence to the ultimate conclusions. See Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015).
II. CONCLUSION
In conclusion, it may well be that substantial evidence exists to support the Commissioner's decision in the instant case. Accordingly, pursuant to the power of the Court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in social security actions under sentence four of Sections 205(g) and 1631(c)(3) of the Social Security Act, 42 U.S.C. Sections 405(g) and 1338(c)(3), it is recommended that the Commissioner's decision be reversed and that this matter be remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings in accordance with this opinion.
The parties' attention is directed to the important notice on the next 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 Post Office Box 2317 Florence, South Carolina 29503
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).