Opinion
Civil Action No. 6:20-cv-02852-SAL-KFM
06-04-2021
Julie Oglesby, 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 28 U.S.C. § 636(b)(1)(B). The plaintiff brought this action pursuant to Sections 205(g) and 1631(c)(3) of the Social Security Act, as amended (42 U.S.C. §§ 405(g), 1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security denying her claims for disability insurance benefits and supplemental security income benefits under Titles II and XVI of the Social Security Act.
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.
ADMINISTRATIVE PROCEEDINGS
The plaintiff filed an application for disability insurance benefits ("DIB") on February 10, 2017, and an application for supplemental security income ("SSI") benefits on March 1, 2017, with both applications alleging that she became unable to work on August 8, 2016 (Tr. 359-67). The applications were denied initially (Tr. 143-68) and on reconsideration (Tr. 170-232) by the Social Security Administration. On April 14, 2018, the plaintiff requested a hearing (Tr. 259-60). On March 22, 2019, an administrative hearing was held at which the plaintiff, represented by counsel, appeared and testified by video from Anderson, South Carolina, while Ira Saldivar, an impartial vocational expert, appeared and testified in Houston, Texas, before an administrative law judge ("ALJ") who was presiding over the matter from Houston, Texas (Tr. 87-135). On June 7, 2019, 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. 65-85). 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 June 11, 2020 (Tr. 1-4). The plaintiff then filed this action for judicial review (doc. 1).
The ALJ's decision listed the date as February 9, 2017 (Tr. 65).
The ALJ's decision listed the date as February 24, 2017 (Tr. 65).
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 through December 31, 2021.
(2) The claimant has not engaged in substantial gainful activity since August 8, 2016, the alleged onset date (20 C.F.R. §§ 404.1571 et seq., and 416.971 et seq.).
(3) The claimant has the following severe impairments: arthritis, ulcerative colitis, iron deficiency anemia, depression, and adjustment disorder with anxious mood (20 C.F.R. §§ 404.1520(c) and 416.920(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, 416.920(d), 416.925 and 416.926).
(5) After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) except she is limited to frequently climbing ramps and stairs; occasionally climbing ropes, ladders, or scaffolds; frequently balancing, stooping, kneeling, and crouching; occasionally crawling; never working in extreme cold or at unprotected heights; understanding, remembering, and carrying out simple, 1-2-3 step instructions
in a work environment free of fast paced production requirements; occasional interaction with the general public with no limitation in her ability to interact with coworkers and supervisors; and, must have ready access to restroom facilities.
(6) The claimant is unable to perform any past relevant work (20 C.F.R. §§ 404.1565 and 416.965).
(7) The claimant was born on June 3, 1968, and was 48 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date. The claimant subsequently changed age category to closely approaching advanced age (20 C.F.R. §§ 404.1563 and 416.963).
(8) The claimant has at least a high school education and is able to communicate in English (20 C.F.R. §§ 404.1564 and 416.964).
(9) Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 C.F.R. Part 404, Subpart P, Appendix 2).
(10) Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 C.F.R. §§ 404.1569, 404.1569a, 416.969, and 416.969a).
(11) The claimant has not been under a disability, as defined in the Social Security Act, from August 8, 2016, through the date of this decision (20 C.F.R. §§ 404.1520(g) and 416.920(g)).
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.
APPLICABLE LAW
Under 42 U.S.C. § 423(d)(1)(A), (d)(5) and § 1382c(a)(3)(A), (H)(I), 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), 416.905(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, 416.920. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. §§ 404.1520(a)(4), 416.920(a)(4).
A claimant must make a prima facie case of disability by showing she is unable to return to her past relevant work because of her 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 191-92.
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).
ANALYSIS
The plaintiff argues that the ALJ erred by failing to explain the residual functional capacity ("RFC") findings (doc. 12 at 20-23) and by failing to appropriately assess opinion evidence (id. at 23-29). The Commissioner, on the other hand, asserts that the ALJ's decision is supported by substantial evidence and should be affirmed (doc. 13 at 14-22).
Residual Functional Capacity
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), 416.945(a). It is the ALJ's responsibility to make the RFC assessment, id. §§ 404.1546(c), 416.946(c), and the ALJ does so by considering all of the relevant medical and other evidence in the record, id. §§ 404.1545(a)(3), 416.945(a)(3).
Social Security Ruling 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 [the] RFC be expressed in terms of the exertional levels 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.
As noted above, in evaluating the plaintiff's case, the ALJ set forth the following RFC:
After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) except she is limited to frequently climbing ramps and stairs; occasionally climbing ropes, ladders, or scaffolds; frequently balancing, stooping, kneeling, and crouching; occasionally crawling; never working in extreme cold or at unprotected heights; understanding, remembering, and carrying out simple, 1-2-3 step instructions in a work environment free of fast paced production requirements; occasional interaction with the general public with no limitation in her ability to interact with coworkers and supervisors; and, must have ready access to restroom facilities.(Tr. 72 (footnote defining light work omitted)). The RFC was followed by a discussion of the record evidence by the ALJ (Tr. 72-75).
The plaintiff first argues that the RFC assessment does not account for her ulcerative colitis or explain why a limitation to "ready access to restroom facilities" accounts for her need to go to the restroom frequently because of her ulcerative colitis (doc. 12 at 21-23). The court agrees. As an initial matter, although the ALJ discussed the plaintiff's ulcerative colitis, the ALJ did not explain how a limitation to "ready access to restroom facilities" accounts for the plaintiff's ulcerative colitis and resultant frequent need to use the restroom. The Commissioner argues that the limitation was appropriate because the plaintiff's ulcerative colitis is noted as stable or in remission on three occasions in the record (doc. 13 at 18-20). However, the ALJ's decision, in discussing the plaintiff's ulcerative colitis, only mentioned that the plaintiff's ulcerative colitis was stable upon examination by consultative examiner Lara Smith, M.D., on December 9, 2017, and that the plaintiff's ulcerative colitis was documented when the plaintiff presented to the emergency room for treatment on January 3, 2019 (Tr. 73). For example, the ALJ did not address other record evidence relating to the plaintiff's ulcerative colitis, such as function reports indicating that the plaintiff's ulcerative colitis would flare, causing frequent lengthy restroom breaks (Tr. 428, 429, 441, 442). Moreover, it appears that the ALJ misunderstood the plaintiff's emergency room treatment in January 2019, which resulted in a seven-day hospital stay. For example, the ALJ indicated that during this emergency room visit the plaintiff's ulcerative colitis was "documented," and the ALJ noted other benign examination findings made in the emergency room (Tr. 73). A review of the treatment records from the plaintiff's hospital stay, however, reveals that an ulcerative colitis flare was the basis for the plaintiff's admission to the hospital after the flare did not respond to more conservative treatment (Tr. 775-830). Additionally, although not discussed by the ALJ, the plaintiff's longitudinal medical records note that despite regular infusions to treat the plaintiff's ulcerative colitis, she still reported epigastric pain as well as diarrhea, abdominal pain, and constipation (Tr. 603, 614-17, 636, 749-53, 765-69, 775-830 (hospital stay for ulcerative colitis flare), 831, 839-40, 873-74). These treatment records appear inconsistent with the ALJ's indication that the plaintiff's ulcerative colitis was stable.
The Commissioner attempts to bolster the ALJ's decision by referencing additional medical records that purportedly support the ALJ's conclusion regarding the plaintiff's ulcerative colitis; however, this evidence was not discussed by the ALJ, and, as set out above, the ALJ's decision does not indicate meaningful consideration of that evidence or other medical records discussing the plaintiff's ulcerative colitis.
Moreover, as noted by the Fourth Circuit in Dowling v. Commissioner of Social Security Administration, the "need to visit the bathroom many times throughout the day impacts one's ability to work." 986 F.3d 377, 389 (4th Cir. 2021). As in Dowling, the record in this case contains considerable evidence regarding the plaintiff's ulcerative colitis and its effect on the plaintiff's restroom habits. Here, unlike in Dowling, the RFC assessment included a limitation to "ready access to restroom facilities"; however, much like the decision in Dowling, the ALJ did not evaluate the frequency at which the plaintiff would need to use the restroom, analyze how the restriction would affect the plaintiff's ability to work, or explain how the restriction would account for the plaintiff's increased need to use the restroom (at times unexpectedly). Id. Indeed, it may be that the restroom limitation in the plaintiff's RFC accounts for the plaintiff's ulcerative colitis; however, to provide that explanation on the ALJ's behalf requires this court to step beyond its purview of substantial evidence review. "A necessary predicate to engaging in substantial evidence review is a record" that adequately explains the ALJ's findings and reasoning. Dowell v. Colvin, C/A No. 1:12-cv-1006, 2015 WL 1524767, at *4 (M.D.N.C. Apr. 2, 2015) (requiring that the ALJ "build a logical bridge between the evidence and his conclusions") (citing Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013)). Thus, although the ALJ retains the authority to set forth the plaintiff's RFC, the decision is legally insufficient because it does not explain how the RFC assessment accounts for the plaintiff's ulcerative colitis.
Remaining Allegation of Error
In light of the court's recommendation that this matter be remanded for further consideration as discussed above, the court need not specifically address the plaintiff's remaining allegation of error, as the ALJ will be able to reconsider and re-evaluate the evidence as part of the reconsideration of this claim. Hancock v. Barnhart, 206 F. Supp. 2d 757, 763-64 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); 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). As such, on remand, the ALJ is to also take into consideration the plaintiff's remaining allegation of error.
CONCLUSION AND RECOMMENDATION
As such, 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 June 4, 2021
Greenville, South Carolina
The attention of the parties is directed to the important notice on the following page.
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).