Opinion
C/A No.: 6:18-2983-MGL-KFM
09-24-2019
Lori L. Mayer, Plaintiff, v. Andrew M. Saul, Commissioner of Social Security, Defendant.
REPORT OF MAGISTRATE JUDGE
This case is before the court for a report and recommendation pursuant to Local Civil 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 September 14, 2015, alleging that she became unable to work on September 11, 2015. The application was denied initially and on reconsideration by the Social Security Administration. On February 29, 2016, the plaintiff requested a hearing. On May 2, 2017, an administrative hearing was held at which the plaintiff, who was represented by counsel, and John S. Wilson, an impartial vocational expert, appeared and testified in Charleston, South Carolina. On September 20, 2017, the ALJ considered the case de novo and found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 15-26). 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 September 6, 2018 (Tr. 1-6). 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 on December 31, 2019.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.
(2) The claimant has not engaged in substantial gainful activity since September 11, 2015, the alleged onset date (20 C.F.R. § 404.1571 et seq.).
(3) The claimant had the following severe impairments: morbid obesity, restless leg syndrome ("RLS"), peripheral vascular disease ("PVD"), Raynaud's phenomenon, Sjorgren syndrome, Achilles tendinitis, and lower extremity neuropathy (20 C.F.R. § 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 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526).
(5) After careful consideration of the entire record, the undersigned finds the claimant has the residual functional capacity to perform sedentary work as defined in 20 C.F.R. § 404.1567(a) except the claimant can only occasionally use foot controls, never climb ladders, ropes, or scaffolds, and occasionally perform all other postural activities. The claimant requires to use a cane to ambulate and is unable to walk on uneven surfaces. Further, the claimant must avoid close proximity to sources of extreme heat or cold, and to mobile machinery, and must avoid work at unprotected heights.
(6) The claimant is capable of performing past relevant work as a receptionist, call center representative, and program coordinator. 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 September 11, 2015, through the date of this decision (20 C.F.R. § 404.1520 (f)).
APPLICABLE LAW
Under 42 U.S.C. § 423(d)(1)(A), (d)(5), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do 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 12 months." 20 C.F.R. § 404.1505(a).
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 meets or medically equals an impairment contained in the Listing of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1, (4) can perform his past relevant work, and (5) can perform other work. Id. § 404.1520. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. § 404.1520(a)(4).
A claimant must make a prima facie case of disability by showing he is unable to return to his past relevant work because of his impairments. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). Once an individual has established a prima facie case of disability, the burden shifts to the Commissioner to establish that the plaintiff can perform alternative work and that such work exists in the national economy. Id. (citing 42 U.S.C. § 423(d)(2)(A)). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Id. at 192.
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings "are supported by substantial evidence and were reached through application of the correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Id. In reviewing the evidence, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Id. Consequently, even if the court disagrees with Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
EVIDENCE PRESENTED
The plaintiff was 30 years old on her alleged disability onset date (September 11, 2015) and 32 years old on the date of the ALJ's decision (September 20, 2017) (Tr. 163). She attended two and a half years of college and obtained an assistant nursing certificate. She has past relevant work experience as a receptionist, call center representative, program coordinator, and assistant manager (Tr. 25, 40, 205-06).
On December 10, 2014, the plaintiff was admitted to Summerville Medical Center for a followup sleep study. She was found to have moderate sleep apnea syndrome based on a sleep study conducted in April 2013. She did not tolerate CPAP but underwent a basal tongue reduction in August 2014. She was feeling better, and the followup study indicated that she still suffered from mild/moderate sleep apnea (Tr. 369-70).
On January 29, 2015, the plaintiff's restless leg syndrome ("RLS") and periodic limb movement disorder was evaluated by Wayne Vial, M.D. She reported that her RLS symptoms occurred in the evening when she was watching television. Dr. Vial observed that she appeared to have a clear cut case of RLS "although it does tend to occur somewhat earlier than is frequently the case." She had tried ropinirole but could not tolerate it due to side effects, and Dr. Vial planned to start her on pramipexole, which "could cause the same side effects." Dr. Vial suspected her "sleep disordered breathing could be contributing to her daytime sleepiness" (Tr. 405-11). .
On February 18, 2015, the plaintiff's bilateral plantar fasciitis was reported to be somewhat improved. She was "using the gel, taking the pills " and was prescribed a cam walker boot (Tr. 401). On March 5, 2015, she had been wearing a boot all day for two weeks and experienced pain for about an hour upon taking it off. She reported that when wearing the boot her foot was "fine." James Cawthorne, DPM, opined that the plaintiff was "doing great" (Tr. 402). On April 16, 2015, she reported worsening anxiety and mood over the past two months triggered by work demands and stressors. She felt "pressured about having to take time off for appts." Her RLS symptoms were worsening during the day (Tr. 468).
On April 21, 2015, Dr. Vial noted that the plaintiff continued to have daytime sleepiness (Tr. 415)
On June 23, 2015, the plaintiff presented to Low Country Rheumatology to discuss her lab work. She continued "to have severe fatigue, occurring daily." Gregory Niemer, M.D., evaluated her for a potential underlying autoimmune disease and assessed Sjogrens syndrome, Raynaud's phenomenon, RLS, and a skin problem (Tr. 439-42).
On July 22, 2015, Charles Kelly, M.D. at Tidewater Neurology assessed peripheral neuropathy, RLS, and multiple sclerosis. The plaintiff reported receiving partial relief from her leg discomfort when she got up and walked or just moved her legs while in the bed (Tr. 456). Interpreting a July 2015 EMG and NCV testing, Dr. Kelly explained that the study was "consistent with a moderate sensorimotor polyneuropathy with absent bilateral lower extremity sensory responses" (Tr. 553). On August 4, 2015, Dr. Kelly noted that the plaintiff recently developed morning sedation and some lower extremity swelling related to her medication (Tr. 562). Her anxiety was improved on August 17, 2015, but she continued "to struggle at work alertness and wakefulness" (Tr. 474). On August 21, 2015, she reported to Dr. Kelly that her medications caused her to retain fluid. She was very puffy, out of breath, dizzy, in pain, and could barely drive to her appointment (Tr. 566).
On August 25, 2015, the plaintiff saw Dr. Kelly and reported that gabapentin caused significant swelling even at a low dosage, forcing her to discontinue it. She noted that she had gained 20 pounds in just the last three to four weeks. Dr. Kelly started her on Lasix, planned on a neuropathic pain cream for her feet, and decided to "stay away from any oral medications." The plaintiff weighed 434 pounds, was 5'5" tall, and had a body mass index ("BMI") of 72.21 (Tr. 570-72).
On September 3, 2015, Skye Deberry, M.D., saw the plaintiff as a new patient and assessed Wilson's Disease after noting elevated copper levels. Examination revealed a normal brain MRI. She had normal back, musculoskeletal, extremities, and neurological findings (Tr. 578-79, 584). The plaintiff followed up with Dr. Deberry on October 13, 2015; November 11, 2015; November 25, 2015; February 17, 2016; and June 14, 2016 for multiple conditions (Tr. 787, 789, 791, 793, 795). On October 13, 2015, examination showed she had normal strength; normal neurological findings; and symmetrical muscle mass, muscle power, and tone in her extremities (Tr. 795).
On November 6, 2015, state agency medical consultant Cleve Hutson, M.D. conducted a physical residual functional capacity ("RFC") assessment in which he indicated that the plaintiff could meet the demands of sedentary work with some postural limitations. (Tr. 71-73). Dr. Hutson wrote:
[C]laimant reports that she is unable to stand for long periods of time, has trouble with mobility, she has trouble lifting bending standing reaching. These statements of limitations are partially credible. [C]laimant has a BMI of 75, and she had 13/18 trigger points positive, her inflammatory work up was neg, [and] the totality of the medical evidence suggest she is able to sustain RFC as written.(Tr. 73).
On January 23, 2016, state agency medical consultant Jack Bankhead, M.D. completed a physical RFC assessment, writing as follows:
[C]laimant reports that she is unable to stand for long periods of time, has trouble with mobility, she has trouble lifting bending standing reaching. These statements of limitations are partially
credible. Claimant has a BMI of 75, and she had 13/18 trigger points positive. The claimant has [medically determinable impairments] of RLS, OSA, planter fasciitis, heel spurs all complicated by extreme morbid obesity. She should be capable of functioning within the framework of this RFC.(Tr. 88). Dr. Bankhead added slightly greater postural and environmental limitations. (frequent balancing, no climbing ladders/ropes/scaffolds, occasional ramps/stairs/stooping/ kneeling/crouching/crawling; avoid concentrated exposure to extreme heat/cold; and avoid hazards) (Tr. 86-87).
Records from Lowcountry Psychiatric Group, LLC, from November 2015 through February 2016 indicate the plaintiff was seen for her anxiety (Tr. 685-89). On April 21, 2016, she had increased anxiety and depression secondary to her husband wanting a separation (Tr. 682). On June 13, 2016, the plaintiff reported doing okay (Tr. 678). On September 14, 2016, her mood was stable (Tr. 675), and on December 12, 2016, she reported doing fairly well (Tr. 672).
The plaintiff sought chiropractic care from Robert Salamon, D.C., on multiple occasions in 2015, 2016, and 2017 (Tr. 691-724).
On January 9, 2017, the plaintiff underwent physical therapy with Physical Rehabilitation Group, LLC, starting with an initial evaluation for increased pain in the left foot over the past six months. She had been told by Dr. Ismalli the previous October that she had a stress fracture. Wearing a boot for a month resulted in only slight improvement. On examination, her balance was poor on the left, there was neuropathy in both feet secondary to RLS, tenderness and tightness of the left leg, decreased left ankle strength, and limited flexibility (Tr. 726-27).
Progress notes from physicians at the Medical University of South Carolina ("MUSC") dated from 2016 and 2017 describe the assessment of RLS, periodic movement disorder, and treatment for these conditions (Tr. 802-29). It was observed on March 21, 2016, that the plaintiff quit her job due to RLS symptoms. On examination, she had normal strength, normal neurological findings, and symmetrical muscle mass, muscle power, and tone in her extremities (Tr. 824-28). On June 23, 2016, examination again showed she had normal strength, normal neurological findings, and symmetrical muscle mass, muscle power, and tone in her extremities (Tr. 821). On July 25, 2016, her leg sensations become quite painful if she tried to suppress them. She was referred to psychiatry for help in dealing with her sleep issues and anxiety (Tr. 815).
On October 10, 2016, she was seen at Charleston Ear Nose and Throat with a chief complaint of multinodular left thyroid goiter (Tr. 759).
On October 21, 2016, the plaintiff was seen at Carolina Foot Centers. She had foot pain that began a month prior when she was doing yoga in her bedroom. On examination, she had normal strength, normal neurological findings, and symmetrical muscle mass, muscle power, and tone in her extremities (Tr. 737). She returned on November 9, 2016, wearing a walking boot. She had left foot pain, near her Achilles tendon. Imaging showed "a hypoechoic signal with spurring to the Achilles tendon consistent with tendinitis/strain. There is posterior spurring noted." On examination, she had normal strength, normal neurological findings, and symmetrical muscle mass, muscle power, and tone in her extremities.(Tr. 735-36).
On November 30, 2016, the plaintiff followed up with Dr. Deberry in preparation for upcoming thyroid surgery (Tr. 785).
On December 2, 2016, the plaintiff returned to Carolina Foot Centers with ongoing pain to the bottom and back of her heel, unchanged since the last visit. Examination was normal except for pain on palpation along the left Achilles tendon at the inertion of the tendon and the left plantar medial heel (Tr. 733).
On December 8, 2016, the plaintiff underwent a left thyroidectomy and isthmusectomy of a nodule that had been increasing in size since sometime prior to October 30, 2015 (Tr. 750, 761-66).
On December 13, 2016, she returned to Charleston Ear Nose and Throat regarding her multinodular left thyroid goiter (Tr. 757). She was assessed post-surgically with possible weakness of the left true vocal fold. The same date, she saw Marian Dale, M.D., who noted that the plaintiff was still having periodic sleep movements (Tr. 807).
On January 11, 2017, the plaintiff went to Carolina Foot Centers with three/ten intensity foot pain relieved by rest. On examination, she had normal strength, normal neurological findings, and symmetrical muscle mass, muscle power, and tone in her extremities. She was treated for plantar fasciitis and Achilles tendonitis (Tr. 731-32).
On January 19, 2017, the plaintiff was seen by Dr. Beech at Beech Tree Wellness for bilateral low back and sacrum pain and stiffness. Both a Hibb's test and Ely's heel to buttock test were positive. Tenderness and muscle spasms were observed in multiple areas (Tr. 851).
On February 8, 2017, the plaintiff returned to Carolina Foot Centers complaining of minimal pain in her left foot along with morning tightness. On examination, there was pain on palpation and insufficient range of motion in dorsiflexion at the ankle. She had normal strength, normal neurological findings, and symmetrical muscle mass, muscle power, and tone in her extremities (Tr. 729).
On March 14, 2017, the plaintiff was seen by Linda Watson PA-C, at Coastal Vascular and Vein Center. She was assessed with edema and a BMI of 70 or greater. Following her examination, Ms. Watson noted that the plaintiff would continue to be as active as possible (Tr. 778). On March 28, 2017, due to her edema, she underwent a lymphoscintigraphy to rule out lymphedema (Tr. 780). A lower venous reflux study report dated April 3, 2017, stated that testing was positive for reflux in both legs. In the left leg, the small saphenous vein was not clearly identified, which suggested chronic occlusion or compression. The plaintiff weighed 434 pounds (Tr. 771-75).
On April 6, April 20, and May 1, 2017, the plaintiff saw Dr. Beech for low back pain and stress. She remained symptomatic with tightness discomfort as of May 1, 2017, and "[t]he discomfort was reported to increase with prolonged sitting" (Tr. 830-34).
On April 25, 2017, M. Peggy Sudol, MS, LMFT, at the Life Guidance Center in Charleston, noted that the plaintiff had been participating in weekly individual therapy since January 23, 2017, and that a "lack of restorative sleep has compounded her mental health symptoms, exacerbating the depression, anxiety and concentration [problems]" (Tr. 784).
At the administrative hearing held on May 2, 2017, the plaintiff testified that she last worked at the Charleston ENT call center. She attempted "to move into a part-time position to see if I was able to do that physically," but she was not successful, in part due to not being allowed to sit whenever she found it necessary. She testified that with regard to the call center job, she was not performing at a satisfactory level. She "had to miss a lot of work due to doctors' appointments and complications from . . . health issues . . . " (Tr. 40-42). The plaintiff described one problem that kept her from working was her RLS symptoms. Symptoms occurred during the afternoons while she sat, so she would regularly need to stand up and sit down. The RLS, a crawling sensation and urge to move the legs constantly, also caused anxiety and difficulty focusing. She stopped working at T-Mobile because she thought with Charleston ENT "being a doctor's office, maybe they would be able [and] more willing to accommodate my schedule as far as my appointments and things like that." However, she ended up "frequently anxious because I was constantly getting conferenced with supervisors about my performance, not being up to par, and how I needed to improve. I was constantly trying to improve but I wasn't able to meet the goals" (Tr. 42-45).
The plaintiff also explained that she could not frequently balance due to Lyrica, which caused her to feel unbalanced. She noted that since taking the drug, she used a cane to steady herself while walking. Although she purchased the cane on her own, when she "went to the doctor at the movement disorder clinic, Dr. Dale, she thought it was good for me to have it." Her employer's notation that she was only able to complete about 70 percent of what other employees could do was accurate. This was due to difficulty concentrating and fatigue from her periodic limb movement disorder, which prevented her from getting adequate rest (Tr. 44-49).
The plaintiff testified that her hypothyroidism also contributed to her fatigue. She was recently diagnosed with chronic venous insufficiency, and her podiatrist noticed that every time she came to the office, she had significant foot swelling and suspected lymphedema. An ultrasound revealed her "veins are about three and a half times the size of what they should be." She had a constant heavy feeling in her arms and legs due to the blood pooling. Elevating her arms and legs helped. She was advised to lie in a recliner and put her arms up on pillows twice a day, which took 30-45 minutes. Her hand and finger swelling impeded her functional dexterity. A doctor advised her that she needed to lose about 60 to 80 pounds before she could undergo vein surgeries (Tr. 46-48).
The plaintiff testified her current weight was 432 pounds. The obesity was partly a result of hypothyroidism, polycystic ovarian syndrome, chronic venous insufficiency, and medication side effects. In 2015, she was missing an average of over four days per month and working alternative shifts that started later because of medical appointments and worsening symptoms. Her immediate manager was very nice and attempted to accommodate her by letting her stand or walk as needed, but her fatigue would return and overwhelm her. The manager also tried to help her "so that way the upper manager wouldn't see that I was sleeping at my desk because if they saw it, it would have been automatic termination" (Tr. 49-52). With respect to her activities of daily living, the plaintiff noted that she must use a shower chair due to difficulty balancing, and she sat while cooking (Tr. 49).
The vocational expert characterized the plaintiff's past work as a call center representative, specific vocational preparation ("SVP") 5, sedentary, Dictionary of Occupational Titles ("DOT") No. 239.367-014; customer service representative, SVP 5, sedentary, DOT No. 239.362-014; receptionist, appointment setter, SVP 4, sedentary, DOT No. 237.367-038; program coordinator, SVP 7, sedentary, DOT No. 195.107-010; and movie theater assistant manager, SVP 6, light, DOT No. 189.167-018. (Tr. 54-55). The ALJ asked the vocational expert to assume a person who could:
operate foot controls no more than occasionally. She is unable to climb ladders, ropes or scaffolds. Other postural activities limited to occasional. She should avoid close proximity to sources of extreme heat or cold. She should avoid work at unprotected heights. She should avoid close proximity to mobile machinery.(Tr. 55). The vocational expert stated that such a person could perform the plaintiff's past sedentary work as characterized. If the person would also require a cane while ambulating and avoid walking on uneven surfaces, the jobs could still be done (Tr. 55-56).
Asked to "assume further that such a person is limited to work requiring no more than occasional decision making or changes in the work setting," the vocational expert testified that the past work could not be performed and identified unskilled jobs. If it were assumed that the person "would require unscheduled breaks, or would otherwise be off task for up to 60 minutes per day over and above scheduled breaks", no work could be performed, nor could work be sustained if the "person would be absent from work entirely in the aggregate of two to three days per month on an unscheduled basis." Alternatively, a person limited to occasional handling and fingering could not work. On questioning by counsel, the vocational expert testified that no jobs would be available "if an employee is working at a rate that is 30 percent slower than other employees" (Tr. 56-58).
ANALYSIS
The plaintiff argues that the ALJ erred by: (1) failing to explain how the record evidence was weighed to arrive at the RFC finding; (2) failing to properly consider her fatigue, morbid obesity, and significant absenteeism; (3) failing to properly evaluate the medical opinion evidence; and (4) failing to properly consider her subjective complaints (doc. 12 at 10-22).
Residual Functional Capacity
As set out above, the plaintiff raises several issues in this appeal. For the reasons that follow, the undersigned finds that remand is warranted for further consideration of the plaintiff's morbid obesity in the RFC assessment. Therefore, the undersigned addresses this issue first.
The regulations provide that a claimant's RFC is the most that she can still do despite her limitations. 20 C.F.R. § 404.1545(a). It is the ALJ's responsibility to make the RFC assessment, id. § 404.1546(c), and the ALJ does so by considering all of the relevant medical and other evidence in the record, id. § 404.1545(a)(3).
Social Security Ruling ("SSR") 96-8p provides in pertinent part:
The RFC assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions in paragraph (b), (c), and (d) of 20 C.F.R. §§ 404.1545 and 416.945. Only after that may RFC be expressed in terms of the exertional level of work, sedentary, light, medium, heavy and very heavy.SSR 96-8p, 1996 WL 374184, at *1. The ruling further provides:
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). In assessing RFC, the adjudicator must discuss the individual's ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and describe the maximum amount of each work-related activity the individual can perform based on the evidence available in the case record. The adjudicator must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved.Id. at *7 (footnote omitted). Further, "[t]he 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." Id. Moreover, "[t]he RFC assessment must always consider and address medical source opinions. If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted." Id.
The Court of Appeals for the Fourth Circuit has consistently held that when evaluating the effect of various impairments upon a disability benefit claimant, the combined effect of the impairments must be considered. Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989). "It is axiomatic that disability may result from a number of impairments which, taken separately, might not be disabling, but whose total effect, taken together, is to render claimant unable to engage in substantial gainful activity. . . . [T]he [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them." Id. (citations omitted). Furthermore, "[a]s a corollary, the ALJ must adequately explain his or her evaluation of the combined effects of the impairments." Id. The ALJ's duty to consider the combined effect of the plaintiff's multiple impairments is not limited to one particular aspect of its review, but is to continue "throughout the disability determination process." 20 C.F.R. § 404.1523.
Social Security Ruling 02-1p provides guidance on Administration policy concerning the evaluation of obesity in disability claims. 2002 WL 34686281, at *1. The ruling notes that the Listing of Impairments was amended, effective October 25, 2009, to delete the listing for obesity. Id. However, the musculoskeletal, respiratory, and cardiovascular body system listings were also amended to provide guidance about the potential effects obesity has in causing or contributing to impairments in those body systems. Id. Obesity is considered a medically determinable impairment, and adjudicators are instructed "to consider the effects of obesity not only under the listings but also when assessing a claim at other steps of the sequential evaluation process, including when assessing an individual's [RFC]." Id.
Social Security Ruling 02-1p recognizes that obesity can cause limitations of function in sitting, standing, walking, lifting, carrying, pushing, pulling, climbing, balancing, stooping, crouching, manipulating, as well as the ability to tolerate extreme heat, humidity, or hazards. Id. at *6. The ruling states, "An assessment should also be made of the effect obesity has upon the individual's ability to perform routine movement and necessary physical activity within the work environment. Individuals with obesity may have problems with the ability to sustain a function over time." Id. It also recognizes that "[i]n cases involving obesity, fatigue may affect the individual's physical and mental ability to sustain work activity." Id. Further, SSR 02-1p states:
The combined effects of obesity with other impairments may be greater than might be expected without obesity. For example, someone with obesity and arthritis affecting a weight-bearing joint may have more pain and limitation than might be expected from the arthritis alone. . . . As with any other impairment, we will explain how we reached our conclusions on whether obesity caused any physical or mental limitations.Id. at *6-7.
The ALJ found that the plaintiff's morbid obesity, along with several other impairments, was a severe impairment (Tr. 18). At step three of the sequential evaluation process, the ALJ stated that he had considered the effects of the plaintiff's obesity on her physical impairments as required by SSR 02-1p in order to determine whether the impairments in combination met the requirements of the listings. The ALJ found as follows:
After a review of the records, the undersigned finds that the claimant's obesity does not increase the severity of the claimant's physical impairments to the extent the combination of the impairments meet the requirements of their respective listings. Further, the medical record contains insufficient evidence to support a finding that the claimant's obesity, by itself, is medically equivalent to a listed impairment. Therefore, the claimant does not have an impairment or combination of impairments that meets or medically equals the severity of any listing.(Tr. 20).
In the RFC assessment, the ALJ summarized the plaintiff's allegations and the medical evidence of record and then stated as follows:
Overall, the claimant's morbid obesity, with BMIs consistently over 65, Achilles tendonitis, and lower extremity neuropathy, support a finding the claimant is limited to sedentary work. However, given the rather benign findings on physical examinations and diagnostic testing, other than edema of the lower extremities and decreased range of motion of the ankles, the claimant remains capable of occasionally using foot controls and occasionally performing all other postural activities, other
than no climbing ladders, ropes or scaffolds. As a precaution, the claimant cannot walk on uneven surfaces, and must avoid close proximity to sources of extreme temperatures, unprotected heights, or mobile machinery. Given the claimant's reported balance and her chronic edema in her lower extremities, she requires a cane for ambulation.(Tr. 23). The ALJ thereafter weighed the medical opinion evidence and concluded the RFC assessment by stating, "In sum, the above [RFC] assessment is supported by the claimant's treatment records, noted improvement with monitoring and medication management, and the only mild to moderate findings on physical examinations and diagnostic testing throughout the relevant period" (Tr. 23-24).
The record shows that on August 25, 2015, two weeks prior to the alleged disability onset date, the plaintiff, who is approximately 5'5" tall, weighed 434 pounds and had a BMI of 72.21 (Tr. 570-72). In April 2017, a few months prior to the ALJ's decision, she weighed the same (Tr. 773-75). Here, as set out above, the ALJ found that the plaintiff's morbid obesity was a severe impairment and considered the plaintiff's obesity in the listing analysis at step three. However, the ALJ's only mention of the plaintiff's obesity in the RFC analysis was in a summary statement that her obesity and other impairments supported a limitation to sedentary work (Tr. 23). The ALJ did not include any discussion as to whether, and to what extent, the plaintiff's obesity in combination with her other impairments impacted her ability to perform work-related activities on a sustained basis.
As recognized in SSR 02-1p, the National Institutes of Health established clinical guidelines classifying three levels of obesity: Level 1, BMIs of 30.0-34.9; Level 2, BMIs of 35.0-39.9; and Level III, termed "extreme" obesity, BMIs of 40 and above. SSR 02-1p, 2002 WL 34686281, at *2.
The Commissioner notes that the RFC assessment is consistent with the opinions of the state agency medical consultants, who considered the plaintiff's obesity (doc. 14 at 7; see Tr. 70-73, 85-88). The ALJ gave these opinions "significant weight" (Tr. 23). However, even state agency medical consultant Dr. Bankhead stated that the plaintiff's medically determinable impairments were "all complicated by extreme morbid obesity" (Tr. 88). It is the ALJ's responsibility to make the RFC assessment, 20 C.F.R. § 404.1546(c), and to "'build an accurate and logical bridge from the evidence to his conclusion.'" Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)). Without such explanation, the court is unable to meaningfully review the ALJ's conclusions to determine if the RFC finding is supported by substantial weight.
Based upon the foregoing, the undersigned recommends that the plaintiff's claim be remanded for further consideration and explanation of the assessment of the combined effect of the plaintiff's obesity and other impairments, both severe and nonsevere.
Remaining Allegations of Error
The undersigned finds the ALJ's inadequate analysis of the plaintiff's obesity to be a sufficient basis on which to remand the case to the Commissioner, and, therefore, the court declines to specifically address the plaintiff's additional allegations of error. 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). On remand, the ALJ should also take into consideration the plaintiff's remaining allegations of error, as appropriate.
Specifically, the plaintiff also argues that the ALJ erred in the RFC assessment by: failing to explain how the record evidence was weighed to arrive at the RFC finding; inappropriately focusing on whether her fatigue was sufficient by itself to render her completely disabled; failing to consider her many other conditions, including obesity, as relevant to her fatigue; improperly concluding that her fatigue was resolved as long as she was medicated for RLS; failing to properly consider her significant absenteeism; failing to properly evaluate the opinion evidence; and discounting her subjective complaints based on inadequate reasoning (doc. 12 at 10-22).
CONCLUSION AND RECOMMENDATION
Based upon the foregoing, this court recommends that the Commissioner's decision be reversed under sentence four of 42 U.S.C. § 405(g), with a remand of the cause to the Commissioner for further proceedings as discussed above.
IT IS SO RECOMMENDED.
s/Kevin F. McDonald
United States Magistrate Judge September 24, 2019
Greenville, South Carolina
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
300 East Washington Street
Greenville, South Carolina 29601
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).