Opinion
Civil Action 2:23-04701-JDA-MGB
05-20-2024
MICHAEL P.,[1]Plaintiff, v. MARTIN O'MALLEY,[2]Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Plaintiff Michael P. (“Plaintiff”) brought this action pursuant to Section 205(g) of the Social Security Act, as amended, (42 U.S.C. Section 405(g)), to obtain judicial review of a final decision of the Commissioner of Social Security Administration (the “Administration”) regarding his claim for Disability Insurance Benefits (“DIB”) under the Social Security Act (the “Act”). This matter was referred to the Magistrate Judge for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and Title 28, United States Code, Section 636(b)(1)(B). For the reasons set forth herein, the undersigned RECOMMENDS that the Commissioner's decision be REVERSED, and that this case be REMANDED for further consideration.
RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS
This case comes before the Court following a continuing disability review (“CDR”) by the Commissioner. Plaintiff was initially found disabled on April 26, 2016, due to obesity, degenerative joint disease, and restrictive lung disease. (R. at 12, 14, 59.) He was 41 years old on his disability onset date. (R. at 59.)
Following this determination, the Agency conducted a periodic review of Plaintiff's medical impairments pursuant to 20 C.F.R. § 404.1594 to determine whether he was entitled to continuing disability benefits. (See, e.g., R. at 71-76, 203-10.) On January 10, 2020, the Agency determined that Plaintiff's health had improved, and he was no longer disabled (R. at 59-79.) Consequently, Plaintiff's benefits were discontinued in March 2020. (R. at 59-79.)
The Agency's continuing disability review determination was upheld upon reconsideration. (R. at 74-75.) Plaintiff then requested a hearing before the assigned Administrative Law Judge (“ALJ”), which occurred on October 21, 2022. (R. at 30-58, 118.) The ALJ issued a decision dated January 27, 2023, confirming that Plaintiff was no longer disabled as of January 10, 2020. (R. at 12-24.) The Appeals Council denied Plaintiff's request for review, (R. at 1-5), making the ALJ's decision the Commissioner's final decision for purposes of judicial review.
In making the determination that the Plaintiff is no longer entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The most recent favorable medical decision finding that the claimant was disabled is the determination dated April 26, 2016. This is known as the “comparison point decision” or CPD.
(2) At the time of the CPD, the claimant had the following medically determinable impairments: obesity[,] degenerative joint disease, and restrictive lung disease. These impairments were found to result in a sedentary residual functional capacity except he could not sustain ambulation for more than one hour in a normal workday.
(3) Through the date of this decision, the claimant has not engaged in substantial gainful activity (20 CFR 404.1594(f)(1)).
(4) The medical evidence establishes that, since January 10, 2020, the claimant has had the following medically determinable impairments: obesity; degenerative joint disease; restrictive lung disease; degenerative disc disease; cardiac arrhythmias; deep vein thrombosis, and obstructive sleep apnea. These are the claimant's current impairments.
(5) Since January 10, 2020, the claimant has not had an impairment or combination of impairments which met or medically equaled the severity of an impairment listed in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1525 and 404.1526).
(6) Medical improvement occurred on January 10, 2020 (20 CFR 404.1594(b)(1)).
(7) The claimant's medical improvement is related to the ability to work because it resulted in an increase in the claimant's residual functional capacity (20 CFR 404.1594(c)(3)(ii)).
(8) Since January 10, 2020, the claimant has continued to have a severe impairment or combination of impairments (20 CFR 404.1594(f)(6)).
(9) Based on the impairments present since January 10, 2020, the claimant has had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except he can lift/carry up to 20 pounds occasionally and 10 pounds frequently. He can sit up to six hours and stand and/or walk up to two hours in a normal workday. He cannot climb ladders/ropes/scaffolds. He can occasionally climb ramps/stairs, stoop, kneel, crawl and crouch. He must avoid exposure to temperature extremes, high humidity, concentrated pulmonary irritants and workplace hazards.
(10) Since January 10, 2020, the claimant has been unable to perform past relevant work (20 CFR 404.1565).
(11) On January 10, 2020, the claimant was a younger individual age 18-49 (20 CFR 404.1563).
(12) The claimant has at least a high school education (20 CFR 404.1564).
(13) Since January 10, 2020, 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).
(14) Since January 10, 2020, considering the claimant's age, education, work experience, and residual functional capacity based on the impairments
present since January 10, 2020, the claimant has been able to perform a significant number of jobs in the national economy (20 CFR 404.1560(c) and 404.1566).
(15) The claimant's disability ended on January 10, 2020, and the claimant has not become disabled again since that date (20 CFR 404.1594(f)(8)).(R. at 14-24.)
APPLICABLE LAW
I. Relevant Statutory 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.” 42 U.S.C. § 423(d)(1)(A).
To ensure 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 Agency'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 him or her from doing substantial gainful employment. 20 C.F.R. § 404.1520. If an individual is found not disabled at any step, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a)(4).
The claimant bears the burden of proof with respect to the first four steps of the analysis. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); Patterson v. Comm'r of Soc. Sec. Admin., 846 F.3d 656, 659 (4th Cir. 2017). Once the claimant has established an inability to return to his or her past relevant work, the burden shifts to the Commissioner to show that the claimant-considering his or her age, education, work experience, and residual functional capacity-can perform alternative jobs and that such jobs exist in the national economy. SSR 82-62, 1982 WL 31386, at *3 (1982); Grant, 699 F.2d at 191; Pass, 65 F.3d at 1203; Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016).
II. Medical Improvement Standard
If a claimant is found to be disabled, the Act then requires periodic review to determine whether continuing benefits are warranted. 20 C.F.R. § 404.1594(a). The Commissioner may terminate a claimant's benefits if substantial evidence demonstrates that the physical or mental impairment for which such benefits were initially provided has ceased, does not exist, or is no longer disabling. 42 U.S.C. § 423(f). While this determination depends on a number of factors, the key issue is whether the claimant has realized a level of medical improvement that now enables him or her to work. The Act defines “medical improvement” as “any decrease in the medical severity of your impairment(s) which was present at the time of the most recent favorable medical decision that you were disabled or continued to be disabled.” 20 C.F.R. § 404.1594(b)(1).
To facilitate this periodic review, the Act provides the following eight-step evaluation:
(1) Is the claimant engaging in substantial gainful activity? If so, the disability has ended.
(2) If not, does the claimant have an impairment, or combination of impairments, that meets or medically equals the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the disability continues.
(3) If not, has there been any medical improvement in the claimant's impairment? If so, proceed to step 4. If not, proceed to step 5.
(4) Does such improvement relate to the claimant's ability to work, i.e., has there been an increase in the claimant's residual functional capacity? If so, proceed to step 6. If not, proceed to step 5.
(5) If there has been no medical improvement or the medical improvement is not related to the claimant's ability to work, do any of the exceptions to medical improvement apply? See 404 C.F.R. § 404.1594(d), (e). If none of the exceptions apply, the disability continues. If an exception from the first group of exceptions to medical improvement applies, proceed to step 6. If an exception from the second group applies, the disability has ended.
(6) Is the claimant's current combination of impairments severe? If not, the disability has ended.
(7) If so, does the claimant's residual functional capacity permit performance of past work? If so, the disability has ended.
(8) If not, does the claimant have the ability-considering his or her age, education, and work experience-to perform other work? If so, the disability has ended. If not, the disability continues.20 C.F.R § 404.1594(f)(1)-(8); see also Dowling v. Comm 'r of Soc. Sec. Admin., 986 F.3d 377, 383 (4th Cir. 2021) (describing the eight-step process).
III. Standard of Review
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the Commissioner supported his findings with substantial evidence and applied the correct law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015); Woods v. Berryhill, 888 F.3d 686, 691 (4th Cir. 2018); Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 94 (4th Cir. 2020); 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); Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012); Mascio, 780 F.3d at 640; Dowling v. Comm'r of Soc. Sec. Admin., 986 F.3d 377, 383 (4th Cir. 2021); 42 U.S.C. § 405(g).
“Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion.” Dowling, 986 F.3d at 383 (citing Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015)). It is “more than a mere scintilla of evidence but may be less than a preponderance.” Pearson, 810 F.3d at 207 (citing Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012)). 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].” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); Hancock, 667 F.3d at 472; Arakas, 983 F.3d at 95; Dowling, 986 F.3d at 383. “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled,” the reviewing court must defer to the ALJ's decision. Shinaberry v. Saul, 952 F.3d 113, 123 (4th Cir. 2020) (citing Hancock, 667 F.3d at 472).
However, the court does not “reflexively rubber-stamp an ALJ's findings.” Dowling, 986 F.3d at 383 (citing Lewis v. Berryhill, 858 F.3d 858, 870 (4th Cir. 2017)). An ALJ may not cherrypick, misstate, or mischaracterize material facts. Arakas, 983 F.3d at 99 (citing Lewis, 858 F.3d at 869). Rather, ALJs “must ‘build an accurate and logical bridge' from the evidence to their conclusions.” Arakas, 983 F.3d at 95 (quoting Monroe, 826 F.3d at 189).
DISCUSSION
Plaintiff contends that the ALJ committed reversible error by: (1) failing to properly apply the medical improvement standard when evaluating Plaintiff's purported improvement; (2) failing to properly assess Plaintiff's mental impairments; and (3) ignoring the vocational expert's testimony that no jobs would be available to Plaintiff if he needed unscheduled breaks throughout the day. (See generally Dkt. No. 13.) In response, the Commissioner argues that the ALJ's decision is supported by substantial evidence and free from legal error. (See generally Dkt. No. 15.) For the reasons set forth below, the undersigned RECOMMENDS that the Commissioner's decision be REVERSED, and that this case be REMANDED for further consideration and proceedings in accordance with this Report and Recommendation.
I. The ALJ's Decision
The ALJ's decision considers whether Plaintiff's obesity, degenerative joint disease, and restrictive lung disease continued to render him disabled from January 10, 2020, the date of Plaintiff's most recent disability review, through January 27, 2023, the date of the ALJ's decision. (R. at 14-24.) Employing the eight-step evaluation process described above, the ALJ first identified the most recent favorable medical decision finding that Plaintiff was disabled, which was April 26, 2016-also known as the “comparison point decision” or “CPD.” (R. at 14.) The ALJ then confirmed that since the CPD, Plaintiff had not engaged in substantial gainful activity but had developed additional impairments, including cardiac arrhythmias, deep vein thrombosis, and obstructive sleep apnea. (R. at 14.) The ALJ found that the severity of Plaintiff's established impairments did not meet any relevant listings criteria. (R. at 14-16.)
Turning to medical improvement, the ALJ determined that, “by January 10, 2020, there had been a decrease in medical severity of the impairments present at the time of the CPD.” (R. at 16.) The ALJ continued on to give a detailed account of Plaintiff's impairments since January 10, 2020. (R. at 17-18.) The ALJ noted that Plaintiff's severe impairments included cardiac arrythmias, deep vein thrombosis, obesity, sleep apnea, restrictive lung disease, degenerative joint disease, and degenerative disc disease, but explained that Plaintiff did not have a severe mental impairment or combination of mental impairments. (R. at 17.) The ALJ explained that Plaintiff experienced medical improvement since the date of the CPD because he “had lost a significant amount of weight (over 300 pounds), his lungs remained clear, and he did not require any ER visits or hospital admissions in the past year due to COPD/asthma exacerbations.” (R. at 16-17.)
The ALJ then explained that Plaintiff's current impairments caused more than a minimal limitation in Plaintiff's ability to perform basic work activities. (R. at 17.) Nonetheless, the ALJ concluded that Plaintiff was able to perform a limited range of light work. (R. at 19.) In support of this conclusion, the ALJ recounted Plaintiff's hearing testimony, as well as the medical and opinion evidence of record. (R. at 19-22.) The ALJ ultimately concluded that the medical and opinion evidence partially supported Plaintiff's allegations “to the extent that he has severe impairments causing limitations, but none so severe as to be [prohibitive] of all work demands.” (R. at 20.)
After noting that Plaintiff could not perform his past relevant work as a cafeteria cook and cashier, was a younger individual, and had at least a high school education, the ALJ determined that Plaintiff was able to perform a significant number of jobs in the national economy since the date of the CPD. (R. at 23-24.) Thus, the ALJ confirmed that Plaintiff's disability ended on January 10, 2020, and Plaintiff had not become disabled since that date. (R. at 24.)
II. The ALJ's Consideration of Plaintiff's Medical Improvements
As noted above, the Commissioner may not terminate ongoing benefits unless substantial evidence demonstrates sufficient medical improvement in a claimant's impairments such that the claimant is able to engage in substantial gainful activity. To establish such medical improvement, a comparison must be made between the claimant's current condition and his or her condition at the time of the CPD. 20 C.F.R. § 404.1594(b)(7). The ALJ may not simply rely on the current medical evidence or summarize previous records; rather, “[a] determination that there has been medical improvement must be based on improvement in the symptoms, signs and/or laboratory findings associated with [the] impairment(s).” Id. § 404.1594(b)(1); see also Daniel C. v. Berryhill, No. 5:17-cv-00074, 2018 WL 7051034, at *8 (W.D. Va. Dec. 28, 2018) (noting that “a proper finding of medical improvement requires examination of reports and records generated before the CPD”), adopted, 2019 WL 237400 (W.D. Va. Jan. 16, 2019). In other words, “the Commissioner must compare the specifics of a claimant's condition at the time of his disability with more recent findings, not just reevaluate whether the claimant is disabled based on his current condition.” Lemieux v. Saul, No. 1:19-cv-00350-KDB, 2020 WL 5750866, at *4 (W.D. N.C. Sept. 25, 2020).
In the instant case, the ALJ provided the following brief explanation in support of Plaintiff's medical improvement at step 3 of the continuing disability evaluation:
At the time of the CPD, the claimant's BMI was above 73, with a weight of 515 pounds. He also required numerous visits to the ER due to COPD exacerbations, and back pain. Accordingly, it was determined that the claimant could not sustain ambulation for more than one hour in an eight-hour workday. However, as of December 1, 2020, the record show[s] medical improvement as the claimant had lost a significant amount of weight (over 300 pounds), his lungs remained clear, and he did not require any ER visits or hospital admissions in the past year due to COPD/asthma exacerbations. Therefore, there is medical improvement.(R. at 17.)
The ALJ later elaborated on this evidence, providing further insight into his determination that Plaintiff was not disabled after January 10, 2020. For example, the ALJ thoroughly summarized the objective medical evidence of record from 2019 through 2021. (R. at 20-22.) With respect to Plaintiff's COPD and lung function, the ALJ recounted that Plaintiff's September 2021 chest radiographs were normal and that December 2021 spirometry tests showed “restriction and mildly reduced diffusion capacity.” (R. at 20.) The ALJ explained that these medical findings did not support “specific functional limitations” relating to Plaintiff's breathing. (R. at 20.) The ALJ further explained that: “[i]n October 2020, a sleep study showed severe obstructive sleep apnea with good response with the use of the CPAP,” “[w]ith the CPAP, the claimant's snoring was eliminated, there were no arrythmias, and no significant drops in 02 saturation,” 2020 and 2021 physical exams remained stable, and “[a]n ECHO showed normal ejection fraction of 60 to 65 percent.” (R. at 21.)
The ALJ considered the medical evidence pertaining to Plaintiff's other impairments, as well. (R. at 21-22.) Specifically, he explained:
In August 2019, a lower extremity DVT was negative for deep venous thrombosis (14F/11). In October 2019, a lumbar MRI showed minimal lumbar spondylosis without significant spinal canal or foraminal stenosis (14F/19). In May 2020, [] lumbar spine radiographs showed: degenerative changes; normal alignment and no significant loss of vertebral body height or disc space; normal conus and causa equina; small disc bulges at ¶ 1/2, L3/4, L5/S1, and no significant spinal canal stenosis at any level (14F/25). In June 2020 and April 2021, foot radiographs were normal. Right knee radiographs showed significant joint space narrowing and moderate lateral joint space narrowing. Left knee radiographs showed hardware in good alignment without evidence of loosening or failure. Bilateral hips/pelvis radiographs showed osteoarthritis with significant loss of joint space; subchondral cysts, subchordal sclerosis and periarticular osteophytes, and a well-maintained bilateral sphericity of the femoral head (10F/3-4)....
In July 2021, at an appointment to establish care at East Cooper Internal Medicine, the claimant reported he was not taking any diabetes medication or wearing his CPAP. He complained of difficulty waking and falling due to knee and hip pain. An exam showed normal breath sounds, decreased range of motion in the knees, swelling and edema of the bilateral legs, and no neurological deficits (15F/138). In August 2021, the claimant reported he had established care with bariatric surgery for weight loss. His exam was unremarkable (15F/126).... Treatment notes indicated the claimant was currently undergoing work-up for gastric bypass surgery (15F/59).
Regarding the claimant's spine and joint impairments, in November 2019, the claimant reported to Palmetto Spine and Pain Care Consultants to establish new patient care for spine and knee pain. An exam showed that the claimant had a BMI of 35. He was not in acute distress....He had normal gait, motor strength of the upper and lower extremities and intact sensation. He was positive for paraspinal bilateral muscle spasms, left straight leg tests and bilateral lumbar pain with facet joint loading. He had normal cervical range of motion, negative Spurling's tests, no joint tenderness and full range of motion of the extremities. The claimant was treated with bilateral lumbar medial branch nerve blocks (11F/3). As the claimant reported successful reduction of pain by more than 75 percent, and increased mobility, he continued to receive lumbar injections until June 2020 and his exam findings remained stable (11F/12, 22, 24, 29, 31, 34, 41). In July 2020, the claimant reported his back pain had returned to pre-injection levels. He stated that he had not been as active in the prior two months (not [riding his] bike or working out) and his pain had increased with numbness and spasms. His exam essentially remained unchanged except for positive lumbar tenderness with range of motion. The claimant was treated with repeat lumbar radiofrequency ablations (7F/17, 30). In September 2020, the claimant complained he had radiating pain into his buttocks,
hips, legs and feet. His exam remained unchanged except that his core strength was noted to be weak and his BMI had increased to 46.77 (7F/19, 21). He was treated with lumbar trigger point injections and Toradol injections (11F/9, 14). In December 2020, the claimant complained of increased radiating hip pain. An exam showed marked pain in the lower lumbosacral area over the bilateral sacroiliac joints and an abnormal gait. The claimant was prescribed Tizanidine and Meloxicam (7F/8). In January 2021, the claimant reported the medications were not effective. His exam remained unchanged except he had limited range of motion of the left hip and bilateral knee tenderness. The claimant was [] treated for spine, hip and knee pain in February 2021 with hip bursa and Depo Medrol injections (7F/2, 6).
In December 2019, the claimant underwent a physical consultative examination. The claimant reported he had lost 350 pounds in the past three years. He previously had left knee replacement. He currently complained of difficulty squatting, rising from a seated position or sitting and/or standing for an extended period. Upon exam, the claimant weighed 240 pounds. He ambulated to the examination room without much difficulty and was able to get on and off the exam table and up and out of a chair with mild difficulty. He did not require an assistive device for ambulation. He had normal range of motion of the cervical and lumbar spine, shoulders, elbows, wrists, hips and ankles. Moderate kyphosis was noted. He had decreased left knee range of motion, and normal right knee range of motion. He had 5/5 strength throughout, including grip strength. He did not have any muscle atrophy. He performed the heel, toe and tandem walk with mild difficulty. He could only squat down about 50 percent. He had normal sensation and reflexes. His lungs were clear bilaterally. He had regular heart rate and rhythm (9F/2).(R. at 20-22.) Here, the ALJ aptly summarized the medical evidence from 2019 through 2021. (R. at 19-22.)
Noticeably absent from the ALJ's discussion, however, are any references to the evidence underlying Plaintiff's initial disability determination in April of 2016. (R. at 19-22.) Though the ALJ vaguely noted a decrease in the severity of Plaintiff's original impairments, he plainly failed to undertake the necessary comparison of the current medical records and the evidence relied upon in the CPD, as required under 20 C.F.R. § 404.1594(b)(7). Without a clear comparison, “the ALJ's decision reads less like a finding of medical improvement, and more like a finding of no disability in the first instance.” Chmarney v. Kijakazi, No. 4:20-cv-1268, 2022 WL 675800, at *8 (M.D. Pa. Mar. 7, 2022); see also Gustafson v. Saul, No. 5:20-cv-00393-ESC, 2021 WL 3145664, at *6 (W.D. Tex. July 26, 2021) (emphasizing the “presumptive validity” of the original disability decision and the requirement that there only be termination of benefits where “there is substantial evidence of actual improvement” to “avoid re-litigating the evidence presented in support of the initial administrative decision”). Thus, while the ALJ's decision thoroughly discusses Plaintiff's medical impairments from 2019 forward, it does not adequately answer the central question of how his impairments medically improved to that point. See Vaughn v. Heckler, 727 F.2d 1040, 1043 (11th Cir. 1984) (“Without such comparison, no adequate finding of improvement [can] be rendered.”) (emphasis in original).
What is more, the record before the Court is completely devoid of any medical evidence pre-dating the 2016 CPD; the record contains only the disability adjudicators' summaries of the CPD findings.(R. at 59-70, 100-12.) Such a record cannot support the ALJ's finding of medical improvement. See Ambler v. Saul, No. 5:18-cv-553-D, 2020 WL 733183, at *4 (E.D. N.C. Jan. 24, 2020) (“While the record reflects a disability hearing officer's summary of evidence from the CPD, that summary is not evidence and may not form the basis for the ALJ's finding of medical improvement.”), adopted, 2020 WL 728239 (E.D. N.C. Feb. 12, 2020); Daniel C., 2018 WL 7051034, at *8-9 (medical improvement cannot be found in the absence of pre-CPD medical records); Hathaway v. Berryhill, 687 Fed.Appx. 81, 83 (2d Cir. 2017) (“Absent these previous medical records, the administrative record lacks a foundation for a reasoned assessment of whether there is substantial evidence to support the Commissioner's finding that a present condition represents an improvement.” (internal quotation marks omitted)); Veino v. Barnhart, 312 F.3d 578, 587 (2d Cir. 2002) (explaining that disability hearing officer's summary of claimant's disorder at time of prior disability determination is not evidence); Byron v. Heckler, 742 F.2d 1232, 1236 (10th Cir. 1984) (“In order for evidence of improvement to be present, there must also be an evaluation of the medical evidence for the original finding of disability.”). Indeed, the ALJ could not have properly found a decrease in the medical severity of Plaintiff's impairments “based on changes (improvements) in the symptoms, signs and/or laboratory findings associated with his impairment(s),” where he did not review and compare the evidence upon which the CPD was based to Plaintiff's more recent medical records. See 20 C.F.R. § 404.1594(b)(1); see also Vaughn, 727 F.2d at 1043 (concluding the ALJ erred by focusing only on current evidence; “[w]ithout . . . a comparison [of the medical records], no adequate finding of improvement could be rendered”)
The Commissioner's brief does not address the dearth of record evidence pertaining to the CPD. (See generally Dkt. No. 15.)
The undersigned notes that the deficiencies in the record before this Court do not necessarily invalidate the ALJ's overall conclusion regarding Plaintiff's disability status. However, the Court cannot affirm the ALJ's decision without a proper discussion of the necessary medical improvement, as it is unclear whether substantial evidence supports the ALJ's finding of medical improvement. See, e.g., Lemieux, 2020 WL 5750866, at *5 (finding medical improvement analysis inadequate where the Commissioner failed “to compare the specifics of [the claimant's] condition at the time he was disabled to the period when the Commissioner contends that his disability abated”); Ambler, 2020 WL 733183, at *4 (“Without a comparison of the medical records in existence at the time of the CPD and Plaintiff's current medical records, the court is unable to determine whether substantial evidence supports the ALJ's finding that medical improvement occurred.”); Daniel C., 2018 WL 7051034, at *9 (finding that medical improvement analysis was “deficient” in that it “referenced the ultimate findings from prior reports” but did not undertake “a fulsome discussion of the relevant medical evidence as to [the claimant's] condition at the time of the CPD, such as his particular symptoms or functional limitations”); see also Testamark v. Berryhill, 736 Fed.Appx. 395, 398 (4th Cir. 2018) (noting that an ALJ must present “findings and determinations sufficiently articulated to permit meaningful judicial review”). Accordingly, this case must be remanded back to the Commissioner for a proper review and comparison of the entire record, including the evidence underlying Plaintiff's April 2016 disability determination. See Chmarney, 2022 WL 675800, at *6 (“[W]hen an ALJ fails to compare medical records between a claimant's current impairments and the records used by the ALJ to make an initial disability determination, courts routinely remand the issue back to the Commissioner so they can make an adequate comparison.”); Gustafson, 2021 WL 3145664, at *6 (collecting cases).
III. Remaining Allegations of Error
As mentioned above, Plaintiff also argues that remand is necessary because the ALJ failed to properly assess Plaintiff's mental impairments and ignored testimony from the vocational expert regarding jobs that would be available to Plaintiff if he needed unscheduled breaks throughout the day. (See generally Dkt. No. 13.) The undersigned need not address these remaining allegations of error, as they may be rendered moot on remand. Hancock v. Barnhart, 206 F.Supp.2d 757, 76364 n.3 (W.D. Va. 2002) (on remand, the ALJ's prior decision has no preclusive effect as it is vacated and the new hearing is conducted de novo). As part of the overall reconsideration of the claim upon remand, the ALJ should, if necessary, also take into consideration Plaintiff's remaining allegations of error.
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be REMANDED for further consideration and proceedings consistent with this Report & Recommendation.
IT IS SO RECOMMENDED.
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).