Opinion
No. 4:16-CV-275-D
01-05-2018
LISA MARTINEZ, 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. Lisa Martinez ("Plaintiff") filed this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the denial of her application for 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 motions and memoranda submitted by the parties, the undersigned recommends that Plaintiff's Motion for Judgment on the Pleadings [DE #15] be granted, Defendant's Motion for Judgment on the Pleadings [DE #18] be denied, and the Commissioner's decision be remanded for further proceedings.
STATEMENT OF THE CASE
Plaintiff applied for a period of disability and DIB on February 3, 2015, with an alleged onset date of December 5, 2014. (R. 19, 79, 193.) The application was denied initially and upon reconsideration, and a request for hearing was filed. (R. 19, 79, 94, 132.) A video hearing was held on May 19, 2016, before Administrative Law Judge ("ALJ") Larry A. Miller, who issued an unfavorable ruling on July 20, 2016. (R. 19, 40.) The Appeals Council denied Plaintiff's request for review on October 21, 2016. (R. 1.) Plaintiff seeks judicial review of the final administrative decision pursuant to 42 U.S.C. § 405(g).
Although Plaintiff asserts that she filed for Supplemental Security Income (Pl.'s Mem. Supp. Mot. J. Pldgs. [DE #16] at 2), the ALJ's decision does not reflect this (R. 19) and the notice of application for benefits indicates that Plaintiff elected not to apply for SSI (R. 194). The disability determination transmittals in the record also do not indicate an application for SSI. (R. 79, 94.)
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), 416.920(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.)
III. ALJ's Findings
Applying the five-step, sequential evaluation process, the ALJ found Plaintiff "not disabled" as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful employment since December 5, 2014, the alleged onset date. (R. 21.) Next, the ALJ determined Plaintiff had the following severe impairments: "lumbar degenerative disc disease; cervical radiculopathy; diabetes mellitus; Methicillin-resistant Staphylococcus aureus (MRSA); chronic obstructive pulmonary disease (COPD); right wrist ganglion cyst; carpal tunnel syndrome; posttraumatic stress disorder (PTSD); and anxiety disorder." (Id.) The ALJ also found Plaintiff's esophageal reflux, hyperlipidemia, and chronic rhinitis to be non-severe impairments. (R. 21-22.)
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, Appendix 1. (R. 22.) The ALJ analyzed Listings 1.04, 11.14, 3.03, 3.02, and 12.06. (R. 22-24.)
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 a wide range of sedentary work as defined in 20 CFR 404.1567(a). She can lift, carry, push, and pull 10 pounds occasionally; stand and/or walk two hours in an eight-hour workday; sit six hours in an eight-hour workday; occasionally balance on narrow, slippery, or moving surfaces, climb, stoop, crouch, kneel, and crawl; and frequently perform tasks requiring handling and
fingering. She can have no exposure to work at heights or around dangerous machinery. She can have no work in environments with concentrated respiratory irritants. She can perform simple, routine, repetitive tasks (i.e., can apply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form and deal with problems involving several concrete variables in or from standardized situations[)]. She is able to concentrate for two-hour increments with normal rest breaks.(R. 24.) In making this assessment, the ALJ found Plaintiff's statements about the severity of her symptoms "not entirely consistent with the medical evidence and other evidence in the record." (R. 26.) At step four, the ALJ concluded Plaintiff was not able to perform her past relevant work as an interpreter, translator, dietician, and personal manager. (R. 38.) At step five, the ALJ concluded, based on Plaintiff's age, education, work experience, and RFC, that jobs exist in significant numbers in the national economy that Plaintiff could perform. (R. 39.) Specifically, the ALJ found Plaintiff capable of performing work as a document specialist, call out operator, and addressor. (Id.)
IV. Plaintiff's Argument
Plaintiff raises a single argument on review. Specifically, Plaintiff contends that the ALJ failed to explain adequately the manipulative limitations (handling and fingering) and the sitting limitation (six hours of sitting per workday) he assessed in Plaintiff's RFC. (Pl.'s Mem. Supp. Mot. J. Pldgs. at 9.) The undersigned agrees and, therefore, recommends the matter be remanded to the Commissioner for further proceedings.
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 v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015)). 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)). Simply put, this means an ALJ must "[s]how [his] 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).
The ALJ did not explain why he limited Plaintiff to frequent handling and fingering rather than occasional—or even less—handling and fingering. After summarizing clinical findings showing Plaintiff has numerous medical problems with her wrists and arms, ALJ Miller summarily stated he was limiting Plaintiff "to frequent handling and fingering due to her carpal tunnel syndrome, cervical radiculopathy, and right wrist ganglion cyst." (R. 34.)
ALJ Miller said nothing about the cubital tunnel syndrome diagnosis, even though he appeared to credit the evidence of that diagnosis. (R. 34.)
Dr. Stevie Carraro conducted an agency consultative examination of Plaintiff in which he concluded, among other things, that Plaintiff could only occasionally handle and finger. (R. 375.) ALJ Miller summarized Dr. Carraro's report and stated he was only assigning "partial weight" to Dr. Carraro's opinions. (R. 35.) But the ALJ only explained why he was rejecting Dr. Carraro's opinion that Plaintiff required an assistive device to ambulate over long distances and uneven terrain. (R. 36.) The ALJ did not explain why he rejected Dr. Carraro's opinion as to Plaintiff's manipulative abilities. (Id.)
While such lack of explanation does not necessarily require remand, see Mascio, 780 F.3d at 636, it is problematic here because the ALJ limited Plaintiff to sedentary work and identified unskilled sedentary occupations as potential jobs for Plaintiff. (R. 24, 72-73.) "Any significant limitation of an individual's ability to handle and work with small objects with both hands will result in a significant erosion of the unskilled sedentary occupational base." SSR 96-8p, 1996 WL 374185, at *8 (July 2, 1996). In this case, the Vocational Expert ("VE") testified that more restrictive manipulative limitations would impact the availability of jobs that Plaintiff could perform. (R. 73-74.) When asked about occasional "reaching, handling, feeling, fingering, and grasping," the VE stated that such a restriction "would certainly reduce" the availability of unskilled jobs at the sedentary level. (R. 74.) The VE testified she "could identify one or two positions that would fall within" the hypothetical; but she did not identify those jobs, nor did she indicate the incidence of such jobs in the region in which Plaintiff lives or in several regions of the country. (Id.) The VE's testimony is not sufficient to carry the Commissioner's burden at Step 5, and thus the ALJ's error in failing to reconcile his fingering and handling limitation with the contrary medical evidence cannot be considered harmless. See Suggs v. Astrue, No. 4:11-CV-128-FL, 2013 WL 466406, at *4 (E.D.N.C. Feb. 7, 2013) ("Errors are harmless in Social Security cases when it is inconceivable that a different administrative conclusion would have been reached absent the error." (quoting Christian v. Comm'r of Soc. Sec., No. 2:08-CV-47, 2009 WL 2767649, at *6 (W.D. Va. Aug. 25, 2009))); Farnsworth v. Astrue, 604 F. Supp. 2d 828, 837 (N.D.W. Va. 2009) (ALJ's failure to include machinery exposure limitation in RFC deemed harmless where error would not have resulted in a different finding regarding the availability of jobs in the economy).
A similar problem infects the ALJ's finding that Plaintiff can sit for approximately six hours of an eight-hour workday. Plaintiff identifies opinions from Physical Therapist Donna Fender and Dr. Jonathan Jack, a treating physician, to show that she cannot sit for long periods. (Pl.'s Mem. Supp. Mot. J. Pldgs. at 13-14.) The ALJ discredited Ms. Fender's opinions because she "is a non-acceptable medical source and has given an opinion on an issue reserved for the Commissioner of Social Security." (R. 35.) Nevertheless, the ALJ assigned "partial weight" to the opinions. (Id.)
While the reasons stated for discounting Ms. Fender's opinions may be reasonable, it is unclear what portion of Ms. Fender's opinions the ALJ credited, and why he did so. This is relevant because Ms. Fender opined that Plaintiff could not sit for "prolonged periods." (R. 591.)
The ALJ also discredited Dr. Jack's October 25, 2015, opinion that Plaintiff could not sit for long periods. (R. 36.) ALJ Miller stated he was assigning only "partial weight" to Dr. Jack's October 25, 2015, opinions because they (i) addressed the issue of employability, and (ii) appeared "extreme" in light of the fact that Plaintiff reported a "fair" response to her pain medication in January 2015 and that, as of May 2015, she spent most of her time taking care of her baby and doing "light" housework and cooking. (R. 36 (citing R. 325 (self-report to state consultative psychologist that pain medication providing "fair" help), 354-55 (pain management clinic note).)
This explanation frustrates the ability to review the ALJ's analysis of Dr. Jack's October 2015 opinions for several reasons. First, discrediting Dr. Jack's opinion regarding Plaintiff's ability to sit for long periods appears inappropriate given that the opinion does not concern an issue reserved for the Commissioner. Second, the pain management clinic treatment note that ALJ Miller cites also states that Plaintiff is "unable to shop, do laundry, everyday chores [due to] pain from fall. She is only dropping [her] child off at school and returning home to bed." (R. 355.) The ALJ neither explained how he interpreted "fair response from pain medications" nor reconciled his interpretation with the conflicting evidence of greater limitations noted by Dr. Jack. Absent such explanation, this looks like "cherrypick[ing] facts that support a finding of nondisability while ignoring evidence that points to a disability finding." Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017) (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)). Third, discrediting Dr. Jack's opinion because Plaintiff spent time taking care of her baby and doing "light" housework must be explained in light of the above-referenced pain management clinic treatment note and the Fourth Circuit's admonition that disability claimants "should not be penalized for attempting to lead normal lives in the face of their limitations," Lewis, 858 F.3d at 868 n.3 (quoting Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)).
The ALJ left unexplained how he interpreted "light" housework and cooking. --------
In sum, the ALJ did not explain his determinations regarding Plaintiff's ability to work with her hands and to sit for extended periods of time in light of contrary evidence such that the court can determine whether substantial evidence supports these findings. These functional capacity findings were relevant to the Commissioner's determination that jobs exist in sufficient quantities that Plaintiff can perform, and therefore, the matter should be remanded to the Commissioner.
CONCLUSION
For the reasons stated above, it is RECOMMENDED that Plaintiff's Motion for Judgment on the Pleadings [DE #15] be GRANTED, Defendant's Motion for Judgment on the Pleadings [DE #18] be DENIED, and the case be REMANDED to the Commissioner for further consideration.
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 January 19, 2018, 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)(1); 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 5th day of January 2018.
/s/_________
KIMBERLY A. SWANK
United States Magistrate Judge