Opinion
C/A No. 2:19-cv-1212-BHH-MGB
07-29-2020
PHILIP TILDEN LUTHER, Plaintiff, v. ANDREW SAUL, Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
This case is before the Court for a Report and Recommendation pursuant to Local 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). Plaintiff Philip Tilden Luther ("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 Administration (the "Administration") regarding his claim for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act (the "Act"). For the reasons set forth below, the undersigned recommends that the Commissioner's decision be reversed and remanded for further consideration and analysis.
RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS
Plaintiff was 50 years old on his alleged disability onset date of November 3, 2014. (R. at 15, 22.) Plaintiff alleged disability due to spinal spondylosis, degenerative disc disease, bulging discs, arthritis, depression and anxiety. (R. at 214.) Plaintiff has past relevant work as a maintenance planner, maintenance technician and in utilities/environment for a food company. (R. at 22, 216.)
Plaintiff filed his application for DIB on August 5, 2015. (R. at 15.) His application was denied initially on December 10, 2015, and on reconsideration on April 11, 2016. (Id.) After a hearing before the Administrative Law Judge ("ALJ") on November 17, 2017, (R. at 15, 30-76), the ALJ issued a decision on April 6, 2018, in which she found that Plaintiff was not disabled (R. at 15-24). The Appeals Council denied Plaintiff's request for review, making the ALJ's decision the Commissioner's final decision for purposes of judicial review. (R. at 1-4.)
In making the determination that Plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the decision:
(1) The claimant meets the insured status requirements of the Social Security Act through December 31, 2020.
(2) The claimant has not engaged in substantial gainful activity since November 3, 2014, the alleged onset date (20 CFR 404.1571 et seq.).
(3) The claimant has the following severe impairments: degenerative disc disease of the lumbar and cervical spine, depression, and anxiety (20 CFR 404.1520(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).
(5) After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and is further limited to the following: lifting and/or carrying twenty pounds occasionally and ten pounds frequently; sitting for six hours in an eight-hour workday, but alternate to standing for sixty minutes after every sixty minutes of sitting, and standing and/or walking for six hours in an eight-hour workday; he can push and/or pull as much as he can lift and/or carry; he is limited to frequent reaching overhead to the left and right, for all other reaching, he can reach frequently to the left and right; he can handle items frequently with the left and right hand; he is limited to frequent climbing of ramps and stairs, but
he can never climb ladders, ropes, or scaffolds; he is limited to occasional balancing, stooping, kneeling, crouching, and crawling; and he is able to perform three-step tasks.(R. at 77-94.)
(6) The claimant is unable to perform any past relevant work (20 CFR 404.1565).
(7) The claimant was born on March 27, 1964 and was 50 years old, which is defined as an individual closely approaching advanced age, on the alleged disability onset date (20 CFR 404.1563).
(8) The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564).
(9) Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
(10) 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 and 404.1569(a)).
(11) The claimant has not been under a disability, as defined in the Social Security Act, from November 3, 2014, through the date of this decision (20 CFR 404.1520(g)).
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a "disability." 42 U.S.C. § 423(a). "Disability" is defined in the Act as the inability to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than" twelve months. See 42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, the Act has by regulation reduced the statutory definition of "disability" to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment which equals an illness contained in the Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents her from doing substantial gainful employment. See 20 C.F.R. § 404.1520. If an individual is found not disabled at any step, further inquiry is unnecessary. See 20 C.F.R. § 404.1520(a)(4); see also Hall v. Harris, 658 F.2d 260 (4th Cir. 1981).
The claimant bears the burden of proof with respect to the first four steps of the analysis. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). Once the claimant has established an inability to return to her past relevant work, the burden shifts to the Commissioner to show that the claimant—considering her age, education, work experience, and residual functional capacity—can perform alternative jobs and that such jobs exist in the national economy. See SSR 82-62, 1982 WL 31386, at *3; Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); see also Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016). The Commissioner may satisfy this burden by obtaining testimony from a vocational expert. See Grant, 699 F.2d at 191-92.
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); see also Woods v. Berryhill, 888 F.3d 686, 691 (4th Cir. 2018); Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015); 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). Consequently, the Act precludes a de novo review of the evidence and requires that the court uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing 42 U.S.C. § 405(g) and Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)); see also Mascio, 780 F.3d at 640; Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012).
Substantial evidence is "more than a mere scintilla of evidence but may be less than a preponderance." Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015) (citing Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012)); see also Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (explaining that, "whatever the meaning of 'substantial' in other contexts, the threshold for such evidentiary sufficiency is not high," as it means only "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion"). "In reviewing for substantial evidence, [the court does] not undertake to reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ]." Hancock, 667 F.3d at 472. "Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ]," not on the reviewing court. Id. However, "[a] factual finding by the ALJ is not binding if it was reached by means of an improper standard or misapplication of the law." Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).
DISCUSSION
Plaintiff asserts that the ALJ erred in four ways. Plaintiff claims that: 1) the ALJ failed to properly assess medical source opinion evidence; 2) the ALJ did not explain his findings regarding the Plaintiff's residual functional capacity ("RFC"), as required by Social Security Ruling 96-8p; 3) the ALJ erred in his hypothetical question to the vocational expert; and 4) the ALJ erred in evaluating the Plaintiff's subjective symptomology. (Dkt. No. 17 at 15-29.) Upon review of the parties' arguments, the ALJ's decision, and the record as a whole, the undersigned finds that the ALJ erred by not explaining his findings regarding the Plaintiff's RFC. Accordingly, as set forth in greater detail below, the undersigned finds that the ALJ's decision is not supported by substantial evidence and therefore recommends that the Court reverse and remand for further analysis.
I. Explanation of Plaintiff's Residual Functional Capacity
A claimant's RFC represents the most he can still do despite his limitations. Ladda v. Berryhill, 749 F. App'x 166, 172 (4th Cir. 2018) (referencing 20 C.F.R. § 404.1545). When conducting the RFC assessment, the ALJ must consider all relevant evidence in the record, including, but not limited to, medical history, reports of daily activities, recorded observations, medical source statements, and "effects of symptoms, including pain, that are reasonably attributed to a medically determinable impairment." SSR 96-8p, 1996 WL 374184, at *5. Specifically, the ALJ's RFC assessment must provide "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). . . . The adjudicator must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved." SSR 96-8p, at *7; see also Monroe, 826 F.3d at 189 (4th Cir. 2016) (noting that the ALJ must identify the evidence relied upon and "build an accurate and logical bridge from the evidence to [the] conclusion"); Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019.) For the reasons set forth below, the undersigned finds that the ALJ has not satisfied his burden under SSR 96-8p.
The ALJ found that the Plaintiff had the residual functional capacity to perform light work with some further limitations and "to perform three-step tasks." (R. at 19). The Plaintiff argues that the ALJ did not properly explain the RFC or draw a logical bridge from the evidence to the restrictions indicated; and that the ALJ's discussion of the medical evidence in this case is "extremely limited." (Dkt. No. 17 at 23.) The Commissioner argues to the contrary that the "ALJ discussed the medical and non-medical evidence of record." (Dkt. No. 18 at 7, 11.) The undersigned agrees with the Plaintiff that the discussion of the medical evidence is so sparse as to make a review of the decision for substantial evidence impossible.
The ALJ's decision did not include a thorough review of the medical evidence and added to the confusion by not relating the Plaintiff's medical history in chronological order. First, the ALJ summarized the Plaintiff's history of back pain with multiple past back surgeries and noted that the physical therapies after each surgery produced limited improvement. (R. at 20.) The ALJ noted that the Plaintiff had a lumbar fusion in June of 2015 due to "his reduced functional abilities and exacerbated pain levels." (Id.) The ALJ then mentioned an MRI (with no date) showing prior bilateral laminotomy at L4-5 and mild facet arthrosis at the L4-5 level with a broad-based bulge resulting in mild to moderate canal stenosis. (Id.) This was the November 2014 MRI predating the June 2015 surgery. The ALJ did not discuss any further medical records leading up to the June 2015 surgery, including a March 2015 CT scan showing a more pronounced condition than the 2014 MRI. The ALJ then jumped to detailing an MRI, without noting the date, which showed disc herniation at C5-6 and narrowing of the left C5-6 intervertebral foramen. When one looks up the record cite for this sentence in the decision, it is discovered to be a more recent MRI from August 30, 2017. (R. at 670.)
That was the sum total of the ALJ's narrative of the medical records relating to physical impairments. The decision did contain Plaintiff's report of pain, fatigue, anxiety and weakness, citing Exhibit 6E. (R. at 236.) The ALJ included a discussion of the Plaintiff's hearing testimony (R. 20) and the weight given to the opinions of the state agency examiner, Tony Lowens, M.D. (dated May 5, 2015) and the medical source statement of Alexandra Witherspoon, M.D. (dated July 19, 2016). The ALJ stated the weight he gave to each opinion but did not compare the opinions to specific medical evidence; he generally stated they were "not consistent with the medical evidence." (R. at 21.) The ALJ isolated one medical record when discounting the Plaintiff's testimony: a record from August 2015, after his June 2015 surgery and after receiving some physical therapy following that surgery, which found that the Plaintiff "made marked improvement in his preoperative symptoms and he told the physician that he would be job seeking in the near future." (Id.)
The ALJ ignored the numerous medical records from August of 2015 forward consistently describing the Plaintiff's pain and efforts to control that pain with medication, including daily opiates, which resulted in limited control of his chronic pain. (See e.g. R. 567-72 dated August 11, 2015, noting prescriptions for oxycontin and oxycodone, intermittent pain, physical therapy goals partially achieved; R. at 616-18 dated September 22, 2015, continued opiate medication, doing as well as expected after lumbar surgery, encouraged to limit activities when pain is intense; R. at 628-29 dated November 25, 2015, Plaintiff still on percocet and oxycontin for continuing back pain, had tenderness to palpitation in lumbar and cervical spine and restricted range of motion; R. at 630-31 dated January 25, 2016, Plaintiff still on two opiate medications and trigger point injections ordered due to pain distribution and findings on physical exam; R. at 654-56, Plaintiff a new patient on March 3, 2017 for pain management, still on opiate medication; R. at 644-46 dated May 17, 2017, pain rated 6/10 with medication, 8/10 without medication, alleviated by lying on his back; psychiatric meds make him drowsy; stiff neck and moderate tenderness to spine; R. 666-70 dated September 18, 2017, noting MRI results showing disc herniation at C5-6 with narrowing, in pain 20 hours a day with medication..) The most recent medical record was dated October 17, 2017, in which the Plaintiff noted worsening pain. (R. at 662-65.)
The ALJ did note this MRI finding once in the decision with no further explanation. (R. at 20.) This was the only 2017 medical evidence of physical impairments mentioned in the ALJ decision.
The undersigned notes that while the ALJ must consider all evidence of record in reaching the claimant's RFC, "there is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision." See Dendy v. Berryhill, No. 2:16-CV-3570-CMC-MGB, 2018 WL 1801639, at *3 (D.S.C. Jan. 22, 2018), adopted, No. 2:16-CV-3570-CMC, 2018 WL 1081501 (D.S.C. Feb. 28, 2018) (referencing Reid v. Comm'r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014)). But in the instant case, the undersigned finds that the ALJ did not provide an articulate narrative discussion of the relevant evidence under SSR 96-8p and did not use that evidence to build an accurate and logical bridge to Plaintiff's RFC. As the Fourth Circuit recently stated, "a proper RFC analysis has three components: (1) evidence; (2) logical explanation; and (3) conclusion. The second component, the ALJ's logical explanation, is just as important as the other two. Indeed, our precedent makes clear that meaningful review is frustrated when an ALJ goes straight from listing evidence to stating a conclusion." Thomas, 916 F. 3d at 311.
This lack of a thorough narrative of the medical evidence also hampers the Court's ability to determine whether the ALJ erred in evaluating the Plaintiff's subjective symptomology. The undersigned notes that in discounting the Plaintiff's statements about the intensity, persistence and limiting effects of his symptoms, the ALJ referenced one medical record which reported Plaintiff making marked improvement in preoperative symptoms and that the Plaintiff said he would be job seeking in the near future. This medical record cite, when reviewed in substance, is dated August 2015 and refers to how the Plaintiff felt in the two months after his June 2015 surgery and towards the end of his postoperative physical therapy. The ALJ did not address any later medical evidence of the Plaintiff's continuing pain and back problems, as described above, in analyzing the Plaintiff's subjective symptomology. Although the ALJ is not required to refer to every piece of evidence, here, the ALJ chose not to discuss the Plaintiff's most recent medical records regarding the Plaintiff's physical impairments in a meaningful fashion. In remanding this case, the undersigned takes no position on whether the ALJ's ultimate determination of the Plaintiff's RFC was correct.
II. Remaining Allegations of Error
The undersigned finds the ALJ's inadequate analysis of the medical record a sufficient basis on which to remand this case to the Commissioner and, thus, the undersigned declines to specifically address Plaintiff's additional allegations of error. However, upon remand, the Commissioner should take into consideration Plaintiff's remaining allegations of error.
Regarding the issue of whether the ALJ failed to properly assess the medical source "opinion evidence" of Bryan M. Rabon, M.D., the undersigned notes the following. The ALJ referenced the assessment of Rabon without mentioning his name, by stating the Plaintiff's GAF score, but did not discuss the substance of the assessment. (R. at 22.) The Plaintiff presents him as "Dr." Rabon (Dkt. No. 17 at 15) and the Commissioner contends that Rabon misrepresented himself as a medical doctor (Dkt. No. 18 at 10). Both parties are incorrect. Mr. Rabon signed himself as an M.Div., Masters in Divinity, and an LPC, licensed professional counselor in his evaluation of the Plaintiff. (R. 657.)
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that the Commissioner's decision be REVERSED and REMANDED for further proceedings as set forth herein.
IT IS SO RECOMMENDED. July 29, 2020
Charleston, South Carolina
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).