Opinion
No. 5:18-CV-241-D
06-17-2019
NANCY ROSE MALLETT, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM & RECOMMENDATION
This matter is before the court on the parties' cross motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Nancy Rose Mallett ("Plaintiff") filed this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the denial of her applications for disability and disability insurance benefits ("DIB"). The time for filing responsive briefs has expired, and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the parties' filings, the undersigned recommends that Plaintiff's Motion for Judgment on the Pleadings [DE #20] be granted, Defendant's Motion for Judgment on the Pleadings [DE #22] be denied, and the case be remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings.
STATEMENT OF THE CASE
Plaintiff filed an application for DIB on July 3, 2010, which was denied on February 26, 2014. (R. 110.) Plaintiff subsequently filed a new application for a period of disability and DIB on March 11, 2014, with an alleged onset date of November 12, 2008. (R. 108.) Plaintiff later amended the onset date to February 1, 2014. (R. 20.) The application was denied initially and upon reconsideration, and a request for hearing was filed. (R. 109-130, 132, 178.) A hearing was held on September 16, 2016, before Administrative Law Judge ("ALJ") Yvonne K. Stam, who issued an unfavorable ruling on December 8, 2016. (R. 20-37, 45-72.) Plaintiff submitted a late request to review the ruling and submitted additional evidence to the Appeals Council. (R. 6-7, 228.) On March 21, 2018, the Appeals Council accepted Plaintiff's tardy filing, found the additional evidence submitted to be outside the period at issue, and denied Plaintiff's request for review. (R. 6-10.) At that time, the decision of the ALJ became the final decision of the Commissioner. See 20 C.F.R. § 404.981. On May 29, 2018, Plaintiff filed the instant civil action, seeking judicial review of the final administrative decision pursuant to 42 U.S.C. § 405(g).
DISCUSSION
I. Standard of Review
The scope of judicial review of a final agency decision denying disability benefits is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; [i]t consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971), and Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)) (citations omitted) (alteration in original). "In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig, 76 F.3d at 589) (first and second alterations in original). Rather, in conducting the "substantial evidence" inquiry, the court determines whether the Commissioner has considered all relevant evidence and sufficiently explained the weight accorded to the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
II. Disability Determination
In making a disability determination, the Commissioner utilizes a five-step evaluation process. The Commissioner asks, sequentially, whether the claimant: (1) is engaged in substantial gainful activity; (2) has a severe impairment; (3) has an impairment that meets or equals the requirements of an impairment listed in 20 C.F.R. Part 404, Subpart P, App. 1; (4) can perform the requirements of past work; and, if not, (5) based on the claimant's age, work experience, and residual functional capacity can adjust to other work that exists in significant numbers in the national economy. See 20 C.F.R. § 404.1520(a)(4); Albright v. Comm'r of Soc. Sec. Admin., 174 F.3d 473, 475 n.2 (4th Cir. 1999). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Pass v. Chater, 65 F.3d 1200, 1203 (4th. Cir. 1995). At the fifth step, the burden shifts to the Commissioner to show that other work exists in the national economy that the claimant can perform. Id. "The Commissioner typically offers this evidence through the testimony of a vocational expert responding to a hypothetical that incorporates the claimant's limitations. If the Commissioner meets her burden, the ALJ finds the claimant not disabled and denies the application for benefits." Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015).
When assessing the severity of mental impairments, the ALJ must do so in accordance with the "special technique" described in 20 C.F.R. § 404.1520a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairments. 20 C.F.R. § 404.1520a(c)(3). These four broad functional areas also correspond to the "paragraph B" criteria of many of the mental disorders in the Listing of Impairments that may be considered at step three of the sequential evaluation process. See 20 C.F.R. Part 404, Subpart P, App. 1. The ALJ is required to incorporate into the written decision pertinent findings and conclusions based on the "special technique." 20 C.F.R. § 404.1520a(e)(3).
III. ALJ's Findings
As a preliminary matter, the ALJ considered the Commissioner's prior decision denying Plaintiff's application for disability benefits through June 28, 2012, but did not give it great weight as additional evidence had been received since that decision. (R. 20, 76-86.) The ALJ also found that Plaintiff last met the requirements for insured status under the Social Security Act ("the Act") on December 31, 2014. (R. 22.) Therefore, the ALJ considered Plaintiff's applications as to the period from February 1, 2014, to the date last insured on December 31, 2014. (R. 22, 33-34.)
Applying the five-step, sequential evaluation process, the ALJ found Plaintiff "not disabled" as defined in the Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful employment since February 1, 2014, the amended alleged onset date, through the date last insured of December 31, 2014. (R. 23.) Next, the ALJ determined Plaintiff had the following severe impairments: "osteoarthritis, spine disorder, hypertension, diabetes mellitus, obstructive sleep apnea, gastroesophageal reflux disease, disorders of the muscle/ligament/fascia, and obesity." (Id.) The ALJ found Plaintiff's hyperlipidemia, asthma, anxiety, and depression insufficient to constitute medically determinable impairments. (R. 23-25.)
At step three, the ALJ concluded that Plaintiff's impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, App. 1. (R. 26.) The ALJ analyzed Listings 1.02 (major dysfunction of a joint), 1.04 (disorders of the spine), and 5.06 (inflammatory bowel disease). (R. 26-27.) Although there is no specific listing for sleep-related breathing disorders, diabetes mellitus, obesity, or hypertension, the ALJ evaluated these impairments under listings for other body systems and found that the requirements were not met. (Id.)
Prior to proceeding to step four, the ALJ assessed Plaintiff's residual functional capacity ("RFC") and found that Plaintiff
had the residual functional capacity to perform light work as defined in 20 C.F.R. 404.1567(b) except lifting and carrying 20 pounds occasionally and 10 pounds frequently, standing and walking 6 hours in an 8-hour workday, and sitting 6 hours in an 8-hour workday. The claimant was capable of pushing and pulling, including operation of hand and foot controls, consistent with the light limitations. The claimant was precluded from climbing ladders, ropes, and scaffolds; more than occasional climbing ramps or stairs or balancing; more than frequent stooping, crouching, kneeling, or crawling; more than frequent handling or fingering with the right dominant hand; with no exposure to hazards such as moving machinery and unprotected heights; and she needed to avoid concentrated exposure to pulmonary irritants such as fumes, odors, and gases.(R. 27.) In making this assessment, the ALJ found Plaintiff's statements concerning the intensity, persistence and limiting effects of her symptoms "not entirely consistent with the medical evidence and other evidence in the record." (R. 28.) At step four, the ALJ concluded Plaintiff was able to perform her past relevant work as a paralegal. (R. 35.) Alternatively, the ALJ concluded that, during the period at issue, Plaintiff was capable of performing work as a surveillance system monitor, call out operator, and order clerk, all of which existed in significant numbers in the national economy, even if she were limited to sedentary, unskilled work requiring her to perform no more than simple, routine tasks. (R. 37.) The ALJ concluded that Plaintiff was not disabled under sections 216(i) and 223(d) of the Act from February 1, 2014 to December 31, 2014, the last date insured. (R. 37.)
The vocational expert testified that Plaintiff's work as a paralegal, found in the Dictionary of Occupational Titles 119.267-026, is light, skilled work at Specific Vocational Preparation level (SVP) 7. (R. 66.)
IV. Plaintiff's Argument
Plaintiff contends the ALJ erred by finding Plaintiff's anxiety and depression as non-severe impairments and by failing to reflect the limitations of her mental impairments in the RFC. (Pl.'s Mem. Supp. Mot. J. Pldgs. [DE #21] at 10.) The Commissioner contends the ALJ correctly weighed the medical opinion evidence in finding Plaintiff's mental impairments as non-severe and considered these limitations in assessing the RFC. (Def.'s Mem. Supp. Mot. J. Pldgs. [DE #23] at 4-14.)
The RFC is an administrative assessment of "an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis" despite impairments and related symptoms. SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996); see also 20 C.F.R. § 404.1545(a)(1). In determining the RFC, the ALJ considers an individual's ability to meet the physical, mental, sensory, and other requirements of work. 20 C.F.R. § 404.1545(a)(4). It is based upon all relevant evidence, which may include the claimant's own description of limitations from alleged symptoms. SSR 96-8p, 1996 WL 374184, at *5; 20 C.F.R. § 404.1545(a)(3). The RFC assessment "must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence." SSR 96-8p, 1996 WL 374184, at *7. If necessary, an ALJ must "explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved." Id.
An ALJ must "include a narrative discussion describing how the evidence supports each conclusion" in the RFC. Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting Mascio, 780 F.3d at 636). The ALJ must specifically explain how certain pieces of evidence support particular conclusions and "discuss[] . . . which evidence the ALJ found credible and why." Monroe, 826 F.3d at 189 (quoting Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013)). The Fourth Circuit has interpreted this to require an ALJ to "build an accurate and logical bridge from the evidence to his conclusion." Monroe, 826 F.3d at 189 (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)).
"[A] proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion . . . . [M]eaningful review is frustrated when an ALJ goes straight from listing evidence to stating a conclusion." Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019) (citing Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018)). Simply put, this means an ALJ must "[s]how [her] work." Patterson v. Comm'r of Soc. Sec. Admin., 846 F.3d 656, 663 (4th Cir. 2017) (applying same principle to an ALJ's listing analysis). Such analysis—"[h]armonizing conflicting evidence and bolstering inconclusive findings," Patterson, 846 F.3d at 662—is a "necessary predicate" to determining whether substantial evidence supports the Commissioner's findings, Monroe, 826 F.3d at 189 (quoting Radford, 734 F.3d at 295). "An ALJ has a duty to explain the administrative decision so as to enable meaningful judicial review." Parker v. Colvin, No. 4:13-CV-38-FL, 2014 WL 2604282, at *3 (E.D.N.C. June 11, 2014). Where a court is "left to guess about how the ALJ arrived at his conclusions on [a claimant's] ability to perform relevant functions . . . , remand is necessary." Mascio, 780 F.3d at 637.
Plaintiff argues that the ALJ's RFC finding is not supported by substantial evidence because the ALJ rejected the opinions of examining source Dr. Christopher Ricci and the state agency, non-examining sources to the extent they conflicted with the ALJ's ultimate conclusion. (Pl.'s Mem. Supp. Mot. J. Pldgs. at 10-11.) Plaintiff asserts the ALJ erred by not explaining which evidence in the record, if any, was inconsistent with the opinions of the state agency, non-examining sources. Plaintiff also asserts the ALJ's paragraph B analysis is not supported by substantial evidence because it contains a facial conflict in that the ALJ found Plaintiff had both mild and moderate limitations in concentration, persistence, or pace. The Commissioner argues that the ALJ thoroughly reviewed the record and the inconsistencies in the ALJ's analysis were due to typographical errors, and thus were harmless. (Def.'s Mem. Supp. Mot. J. Pldgs at 10-12.)
The court finds that a number of inconsistencies within the ALJ's decision preclude the court from determining whether substantial evidence supports the ALJ's decision. An ALJ's opinion that is internally inconsistent frustrates meaningful review and requires remand. See Hester v. Colvin, No. 7:14-CV-163-BO, 2015 WL 3409177, at *2 (E.D.N.C. May 27, 2015). Inconsistencies in the present case include the following findings by the ALJ:
• that Plaintiff had no limitation in daily living activities and then stating, in the same paragraph, that "the record as a whole . . . indicates that [Plaintiff] has mild limitation in handling her daily activities independently, appropriately, effectively, and on a sustained basis" (R. 25);
• that Plaintiff had mild limitation in concentration, persistence or pace and then stating, in the same paragraph, "that the record as a whole . . . indicates that [Plaintiff] has moderate limitations in sustaining focus, attention, and concentration sufficiently long enough to permit the timely and appropriate completion of tasks commonly found in work settings" (Id.);
• that Plaintiff's medically determinable mental impairments caused no more than mild limitations "in any of the first three functional areas" although previously stating that Plaintiff had moderate limitations in concentration, persistence or pace (Id.).
The record in this case reflects that Dr. Ricci, a consultative psychological examiner, and Dr. Keith O. Noles and Dr. David R. Mullen, state agency psychological consultants, provided opinions as to Plaintiff's paragraph B functional areas. On March 1, 2011, Dr. Ricci examined Plaintiff and found "[s]he appears capable of making appropriate decisions, relating adequate[ly] with others, but is having some difficulties dealing with stress." (R. 450.) The ALJ gave little weight to the March 2011 opinion of Dr. Ricci, finding that it was "too remote from the period at issue to be of much relevance." (R. 23.) On May 20, 2014, Dr. Ricci again examined Plaintiff, diagnosing her with panic disorder and dysthymic disorder. (R. 563.) In May 2014, Dr. Noles found that Plaintiff had no restriction on activities of daily living, mild difficulties in maintaining social functioning, moderate difficulties in maintaining concentration, persistence or pace and no repeated episodes of decompensation. (R. 98.) Dr. Noles rated Plaintiff's ability to understand and remember and carry out detailed instructions as moderately limited and her ability to maintain attention and concentration for extended periods as moderately limited. (R. 103.) In an evaluation and management psychiatric diagnostic interview at Monarch in February 2014, Plaintiff was diagnosed with major depressive disorder and panic/agoraphobia by Shana Williams, PMHNP-BC. (R. 619.) Plaintiff visited Monarch again in March, April, May, and August 2014 reporting anxiety and panic attacks. (R. 620-24.) By August 2014, Plaintiff reported minimal anxiety and two to three panic attacks per week. (R. 620).
The ALJ not only failed to provide a logical bridge between the evidence and her conclusions, she actually created inconsistencies or ambiguities that preclude meaningful review of her decision. The ALJ found there was no limitation in Plaintiff's daily living activities, citing evidence that Plaintiff "homeschools her son, prepares simple meals, does laundry, vacuums, drives, shops by computer, pays bills, and handles a savings account," as well as the state agency psychological consultants' opinions that Plaintiff had mild limitations in this area. But the ALJ did not reconcile the inconsistencies in the evidence or explain the reason she determined Plaintiff had no limitation in daily living activities. Even more puzzling is that, in the same paragraph, the ALJ finds that Plaintiff has mild limitations in handling her daily activities.
Similarly, the ALJ found mild limitations for the functional area of concentration, persistence or pace. The ALJ stated Plaintiff "homeschools her son, shops by computer, drives, pays bills, and handles a savings account" but, again, does not bridge the logical gap by explaining the basis for her finding of mild limitation in this functional area. The ALJ compounds the error by citing the state agency consultants' opinions of moderate limitations in concentration, persistence or pace, then stating: "The undersigned finds, however, that the record as a whole . . . indicates that [Plaintiff] has moderate limitations in sustaining focus, attention, and concentration sufficiently long enough to permit the timely and appropriate completion of tasks commonly found in work settings." (R. 25.) With regard to this functional area, the court is left to guess whether the ALJ found a mild or moderate limitation and what the evidentiary basis was for the ALJ's finding.
The Commissioner argues that the ALJ's internal inconsistencies are typographical errors and cites to Howard v. Astrue, 4:07-CV-195-FL, 2009 WL 863581 (E.D.N.C. Mar. 26, 2009), where the court could not discern whether the ALJ's finding that plaintiff "walks to Wal-Mart" was a mischaracterization of the evidence or merely a typographical error when the plaintiff had testified that when he visited Wal-Mart, he had to sit on a bench while others shopped. Howard v. Astrue, 4:07-CV-195-FL, 2009 WL 863581, *2 (E.D.N.C. Mar. 26, 2009). The court in Howard found the ALJ's reliance on the mischaracterization harmless in light of the "plaintiff's testimony that he can walk for forty-five minutes with a break after twenty to thirty minutes, and that he walks around the grocery store, but does not push the cart or unload the bags." Id. at *2. The court determined that the ALJ had analyzed all of the relevant evidence and sufficiently explained his findings and rationale in crediting the evidence. Id.
In the present case, the ALJ has not explained the findings and rationale in assessing Plaintiff's mental impairments. Moreover, the ALJ's error is not rendered harmless by her alternative finding that Plaintiff would have been capable of performing the jobs identified at step five even if her mental impairments were severe and she were limited to sedentary, unskilled work requiring her to perform no more than simple, routine tasks. At the administrative hearing, the ALJ posed several hypotheticals to the VE. However, none of the hypotheticals included a restriction to simple, routine tasks in unskilled work. Thus, there is no vocational evidence of record to support the ALJ's finding that Plaintiff could have performed the jobs identified at step five if she were so limited. Where the ALJ has a duty to explain the administrative decision as to enable meaningful review, the inconsistencies and ambiguities in the ALJ's decision warrant remand.
CONCLUSION
For the reasons stated above, it is RECOMMENDED that Plaintiff's Motion for Judgment on the Pleadings [DE #20] be GRANTED, Defendant's Motion for Judgment on the Pleadings [DE #22] be DENIED, and the case be REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until July 1, 2019, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.
A party that does not file written objections to the Memorandum and Recommendation by the foregoing deadline, will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, a party's failure to file written objections by the foregoing deadline may bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).
This 17th day of June 2019.
/s/_________
KIMBERLY A. SWANK
United States Magistrate Judge