Opinion
C/A No. 5:19-02974-RMG-KDW
01-26-2021
Michele Renee Oliver, Plaintiff, v. Andrew Saul, Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This appeal from a denial of social security benefits is before the court for a Report and Recommendation ("Report") pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") pursuant to the Social Security Act ("the Act"). For the reasons that follow, the undersigned recommends that the Commissioner's decision be reversed and remanded for further administrative action. I. Relevant Background
A. Procedural History
On September 28, 2016, Plaintiff protectively applied for DIB and SSI under Title II and Title XVI of the Act. Tr. 317-23; 324-29. She alleged a disability onset date of October 14, 2015. Tr. 317; 324. Plaintiff's application was denied initially, Tr. 139-40, and upon reconsideration, Tr. 176-77, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), Tr. 192-93. The administrative hearing was held on February 7, 2019, Tr. 41-108, and on May 21, 2019, the ALJ issued an unfavorable decision, finding Plaintiff not disabled within the meaning of the Act, Tr. 10-28. Plaintiff requested review of the ALJ's decision, Tr. 184, and on August 15, 2019, the Appeals Council denied Plaintiff's request for review. Tr. 1-5. Thus, the ALJ's decision became final and this case is ripe for judicial review pursuant to 42 U.S.C. § 405(g). Plaintiff brought this action seeking judicial review of the Commissioner's decision in a Complaint filed on October 18, 2019. ECF No. 1.
Although the Application Summaries are dated October 25, 2016, as noted in the Disability Determination and Transmittal, Plaintiff's protected filing date is September 28, 2016. Tr. 139-40.
B. Plaintiff's Background
Plaintiff was born on September 29, 1979, and was 36 years old as of her alleged onset date of October 14, 2015. Tr. 341. In her October 27, 2016 form Disability Report-Adult, Plaintiff indicated that she completed high school and two years of college, and obtained a Medical Assistant Diploma. Tr. 358. She noted her past relevant work ("PRW") included working as a certified nursing assistant ("CNA"), home health aide, retail sales manager, cashier, and security guard. Id. Plaintiff indicated that she stopped working on October 14, 2015 because of her medical conditions which she listed as fibromyalgia, post-concussion syndrome, cervical spine, PTSD, and anxiety/depression. Tr. 357.
In a Disability Report-Appeal dated May 30, 2017, Plaintiff indicated that her medical condition had changed. Tr. 385. She described those changes as "body, legs, shoulders, arms, hands swell[], can't walk when legs & feet are swollen, use my cane. Thinking is harder and makes my head hurt worst [sic], impact on [ ] blood pressure." Id. She also indicated she had new medical conditions of "swelling my over all [sic] body. My eye frequently gets red, the bottom of my feet tingles, my hands shakes." Id. Plaintiff noted changes in her daily activities due to these medical conditions and noted that "hard to stand to cook, can't do household chores. I was at sink while sitting on toilet, hard to get in bath tub." Tr. 390.
C. The Administrative Proceedings
Plaintiff appeared, along with her attorney, for her administrative hearing on February 7, 2019, in Charleston, South Carolina. Tr. 41. Vocational expert ("VE") Courtney Stiles also appeared via video-conference. Tr. 43.
1. Plaintiff's Testimony
Plaintiff was 39 years old at the time of her hearing, and she testified that she lives with her mother and two children in a mobile home. Tr. 47. Plaintiff's mother was 63 years old at the time of her hearing, and her children were 18 and 12 years old. Tr. 47. Plaintiff testified that her mother has some physical problems and difficulties that Plaintiff was able to help out with in the past. Tr. 48. Specifically, Plaintiff was able to help her mother around the home and take her to doctor's appointments, but she can no longer help her mother since her October 2015 accident. Tr. 48-49. Though Plaintiff was able to help with cleaning, laundry, and cooking prior to 2015, she testified she can no longer help at all. Tr. 49. Plaintiff testified she is unable to drive, although she has a current driver's license that expires in 2024. Tr. 49; 61-62. Plaintiff testified that her mother and sister help her with her children. Tr. 49. She testified her mother will accompany her to her son's doctor's appointments and to parent/teacher conferences. Tr. 50. Plaintiff testified she always needs another person to attend meetings or other events with her since the accident—that she never goes anywhere alone. Id.
Plaintiff testified her children are active in their church and are in the youth choir. Tr. 51. She testified she sometimes attends church with her children, but she testified several months have passed since she last went to church. Id. Plaintiff explained that she can longer tolerate the noise because it causes her head to hurt, and she told her neurologist about this new symptom change. Tr. 52. Plaintiff testified she is 5'6" tall and weighs 204 pounds. Tr. 54. She explained that this is not an average weight for her—that she has gained about 15 pounds because she was depressed and eating more. Tr. 54-55.
Plaintiff testified that she completed high school and later received a certificate to be a CNA after completing two years of college. Tr. 55. However, Plaintiff's CNA license is not current because of her work inactivity. Tr. 55-56. Plaintiff testified that since her October 2015 accident she has not worked, except she helped with providing free meals at her church. Tr. 56-57. She testified that she did not prepare the food, and "all [she] did was issue the food." Tr. 57. Plaintiff testified she helped with the free lunch for two hours a day and was paid $100/week for 12 weeks for her service. Tr. 57-58. Plaintiff testified she has not applied for any other work or unemployment benefits since the accident. Tr. 58. She testified that, other than food stamps, she is not receiving any other benefits and she does not receive child support. Id.
Plaintiff testified she is right-handed, and was prescribed a right-hand brace after being diagnosed with De Quervain's tenosynovitis. Tr. 58-59. Plaintiff testified that she did not follow up with doctors about getting injections or a referral after she was given the brace. Tr. 60. Plaintiff explained that the doctor told her to continue wearing the brace until her next appointment, but she agreed that she has not tried to get a follow-up appointment. Tr. 60. Plaintiff testified that she is seeing a therapist, but the therapist is not addressing her hand issues and Plaintiff has not mentioned her hand issues to the therapist. Tr. 61.
De Quervain's tenosynovitis is a painful condition affecting the tendons on the thumb side of your wrist; it will probably hurt when you turn your wrist, grasp anything or make a fist. Chronic overuse of your wrist is commonly associated with de Quervain's tenosynovitis. See https://www.mayoclinic.org/diseases-conditions/de-quervains-tenosynovitis/symptoms-causes/syc-20371332 (last visited Jan. 26, 2021).
The ALJ noted that Plaintiff worked briefly for "the County" earning less than $1000. Tr. 63. Plaintiff confirmed that in 2015 she worked for Advantage Veteran Services at a nursing home facility for veterans for about one month. Id. Additionally, in 2015, she worked for about four to five months for Morning Star Home Care Services doing home health care work. Tr. 63-64. From 2014 into 2015, Plaintiff worked at Fred's Store as a cashier for about a year. Tr. 64. Plaintiff agreed she earned about $ 10,000 while working fulltime at Fred's where she made minimum wage. Tr. 64. Plaintiff became an assistant manager at Fred's and began to earn $10 an hour and later became the acting store manager. Id. Plaintiff confirmed that as the manager she made the hiring and firing decisions, ordered materials and supplies, prepared reports for the company, made deposits, and dealt with customer issues. Tr. 65. Plaintiff confirmed she worked for Angel's Touch in 2013, another home health care job, where she worked as a CNA. Id. Plaintiff testified that in 2014 she worked for customer service of DirecTV as a telephone representative for four months making $9/hour. Tr. 65-66. From 2011 through 2013, Plaintiff worked for Dollar General as a cashier and stocker making minimum wage. Tr. 66. Plaintiff worked for Secured Pass Security Systems as a security guard from 2009 to 2011, making minimum wage. Tr. 66-67. Plaintiff testified she worked for Target in 2008 as a cashier for approximately one month. Tr. 67. Plaintiff testified that from 2007 to 2008, she worked as an overnight stocker for a few months for Family Dollar of Alabama. Tr. 68. From 2005 to 2006, Plaintiff worked as a stocker and cashier for Walmart, and from 2004 to 2005, she worked for W.S. Babcock Corporation as a collections manager and a salesperson. Tr. 68-69. From 2003 to 2004, Plaintiff worked for Target as a cashier. Tr. 70. Plaintiff also worked for Management Analysis and Utilization ("MAU"), a temp agency, in 2003 at a Bosch plant where she worked on an assembly line. Tr. 70-71.
Later in the questioning, Plaintiff recalled working briefly as a hairdresser. Tr. 88. She explained that she worked as an apprentice to get her license, but she never actually got the license. Id. She testified that she does not do any work as a hairdresser "on the side" to earn additional money. Id.
Upon questioning by her lawyer, Plaintiff testified that she could no longer work because of fibromyalgia, her depression, seizures, headaches, and PTSD. Tr. 72. Plaintiff testified that she has a current "seizure disorder diagnosis" and she is taking medications for the disorder; she is also under restrictions because of the disorder. Id. Plaintiff testified she is being treated at MUSC in Charleston for her conditions. Id.
In response to questions from the ALJ, Plaintiff testified her neurologist diagnosed her with fibromyalgia. Tr. 73. She testified that the fibromyalgia causes her to have muscle spasms; pain in her back and legs; and pain in her shoulder going up to her head on the left side of her neck. Tr. 73-74. Plaintiff confirmed that she can move her left hand and arm in all directions, but sometimes she has to limit her movements because of pain. Tr. 74. In response to her attorney, Plaintiff estimated that she experiences muscle spasms three or four times throughout the day. Id. She testified that sometimes the spasms are brief and go away quickly and sometimes they last for "a good ten minutes." Tr. 75. Plaintiff testified she takes her spasm medications at night and sometimes takes two Tylenols when she experiences pain. Id. She confirmed that she was taking cyclobenzaprine, a muscle relaxer. Id.
Plaintiff testified that a psychologist at MUSC diagnosed her with depression, and she first started seeing someone for treatment in 2018. Tr. 75-77. Plaintiff testified she sees someone for her treatment once a week. Tr. 77. Additionally, she testified that she takes medication, Aripiprazole, for her depression which has helped her symptoms. Tr. 78-79. Plaintiff testified that when she feels depressed, she gets "an overall feeling" and secludes herself. Tr. 78. She estimated that she feels these symptoms "two or three days out of the week." Id. Plaintiff testified that the symptoms can last all day, and sometimes she will spend the majority of the day alone in her room. Tr. 79. She explained that the medication helps her feel calm. Id. Plaintiff testified the depression was a lot worse before she sought counseling and started taking medication. Tr. 80. Plaintiff testified that she was a patient at All Seasons Counseling before she was treated at MUSC for her depression. Id.
Plaintiff confirmed that when she refers to seizures, she means blackouts, but she has not been diagnosed as being epileptic. Tr. 80-81. She testified that she was hospitalized in November of 2018 for a few days while doctors tried to "get a handle on the blackouts." Tr. 81. Plaintiff testified she was prescribed medication after this hospitalization and has not experienced anything like what led her to seek treatment since then—that the medication has helped. Tr. 81-82. Plaintiff testified her cousin told her she blacked out—that Plaintiff became quiet and non-responsive and then "just came to [herself]." Tr. 82. Plaintiff does not remember this blackout incident happening. Id. Plaintiff testified that prior to November of 2018, she had more regular blackouts, and she estimated they occurred about two or three times a month. Tr. 82-83. She estimated the seizures would last between two and three minutes. Tr. 83. She testified she felt tired and drained after experiencing one and would lie down afterwards. Id.
Plaintiff confirmed that she is being treated for her headaches at MUSC, and she is being prescribed two medications for them. Tr. 83-84. Plaintiff testified that she experiences a headache every morning, but some days are worse than others. Tr. 84. On a ten-point scale, Plaintiff rated her worst headaches at a level seven. Id. She rated other headaches—those that she wakes up with in the mornings—at a three or four on the same scale. Tr. 85. Plaintiff explained that her worst headaches last all day, and they sometimes go away at night when she takes her medicine. Id. She testified she has had to go to the ER at times. Id. When she does not go to the ER, she testified that she will lie down and seclude herself in her room. Tr. 85-86. She explained that after an hour or two she will feel better. Tr. 86. Plaintiff explained that a counselor at All Seasons diagnosed her with PTSD. Id. She testified that her depression diagnosis is the symptom of the PTSD. Id.
The ALJ asked Plaintiff if her motor vehicle accident claim had settled, and Plaintiff confirmed that it had. Tr. 86-87. Plaintiff estimated she netted around $25,000 from the lawsuit in 2017. Tr. 87. Plaintiff testified she sometimes watches television shows like Judge Judy or Fix My Life. Tr. 88. She testified she has a smart phone she uses to talk and text. Tr. 88-89. She testified she does not use the phone for social networking—that she deleted her Facebook and Instagram accounts. Tr. 89. She testified she does not have an iPad or a computer. Id.
Upon further questioning by her attorney, Plaintiff testified that she experiences issues sitting because she will get muscle spasms in her lower back and legs. Tr. 89. She estimated she can sit for about 30 minutes before she starts having spasms. Id. Plaintiff testified she was experiencing muscle spasms in her lower back during the hearing. Tr. 90. Plaintiff testified she is able to stand for 15- to 20-minute increments. Id. She explained that after that time she will experience pain in her legs, and her legs start to feel heavy. Id. Plaintiff estimated she would be able to walk two blocks, and it would take her about 45 minutes. Id. She testified she would hurt and be in pain afterwards. Id. Plaintiff testified she cannot lift more than five pounds, and if she does, she will experience pain in her back, arms, left shoulder, and left side of her neck. Tr. 91. Plaintiff testified that on days she is not experiencing headaches she tries not to lie down during the day. Id. Plaintiff testified that she will sometimes sit in a recliner during the day to elevate her legs to prevent pain from muscle spasms. Tr. 91-92. Plaintiff testified that she does not drive, and she last drove in November of 2018. Tr. 92. Plaintiff stated that prior to that, she drove herself on a regular basis. Id.
Plaintiff testified she lives about 45 minutes to an hour away from her doctors at MUSC, and prior to November of 2018, either she or her mother would drive her to her appointments. Tr. 93. Plaintiff testified she was told she had to stop driving because of her blackout condition in November of 2018. Id. She testified she experiences fatigue and sleepiness because of the medications she takes. Id. She also testified she has concentration, retention, and reading/writing problems because of the medicine she takes. Tr. 93-94. Plaintiff testified she sometimes sleeps well at night, but sometimes sharp pains in her back or a muscle spasm will keep her awake. Tr. 94. Plaintiff testified that she typically sleeps a total of five hours at night. Id. With regard to her personal needs Plaintiff testified that her daughter helps her with washing her feet. Tr. 95. Plaintiff testified on a typical day she gets up between 6:00 and 6:30, takes her medicine, eats, and then has to lie down again because of muscle spasms and because her medication makes her sleepy. Id. She testified that she wakes again between 12:30 and 1:30. Id. Plaintiff stated that her 12-year-old son rides the bus to and from school; when he gets home, she spends 30 minutes helping him with his homework. Tr. 96. Plaintiff testified that she sometimes prepares dinner and does laundry. Id. Plaintiff stated that she grocery shops with her mother, and that her niece and older sister also shop. Tr. 97. Counsel asked Plaintiff if her doctors had talked with her about a condition called focal cortical dysfunction. Plaintiff responded that she believed that was the result from an EEG when she was hospitalized. Id.
2. VE's Testimony
Courtney Stiles testified as the VE at Plaintiff's administrative hearing and described Plaintiff's PRW as a nursing assistant as medium with a specific vocational preparation ("SVP") of four and Dictionary of Occupational Titles ("DOT") number 355.674-010. Tr. 99. The VE testified that Plaintiff's work as a home health aide was medium, SVP of three, and DOT number 354.377-014; and cashier/checker was light, with an SVP of three, and DOT number 211.462-014. Id. She indicated that Plaintiff's work as a customer service representative was sedentary, with an SVP of 5, and DOT number 239.362-014, and when she was promoted to an assistant manager position, the DOT number changed to 299.137-010, medium, and an SVP of 7. Tr. 99-100. For her work in collections, the VE classified her work as a collections clerk, with an SVP of 5, sedentary, and a DOT number of 241.357-010. Tr. 100. For her work doing sales for the furniture company, the VE classified the work as retail sales and assigned it as light, with an SVP of 3, and a DOT number of 290.477-014. Id. Finally, for Plaintiff's work installing batteries into cars, the VE classified this work as a motor vehicle assembler, with a medium exertional level, an SVP of 2, and a DOT number of 806.684-010. Id.
The ALJ asked the VE to consider a person of Plaintiff's age, education, and work experience with the following restrictions: light exertional work levels; frequent operation of right-hand controls; frequent overhead bilateral reaching; frequent reaching, handling, and fingering on the right side; occasionally climbing ramps and stairs; never climbing ladders, ropes, or scaffolds; occasional balancing, stopping, kneeling, and crouching; never crawling; no working on unprotected heights, dangerous machinery, or moving mechanical parts; never operating a motor vehicle as an occupational requirement; avoiding concentrated exposure to extremes of cold and heat; limited noise intensity level of no greater than a code three moderate, such a business office where typewriters or keyboards are used, department store, grocery store, light traffic, fast food restaurant, but in off hours; never work around open flames or open bodies of water; be limited to simple routine tasks; be limited to simple work-related decisions with regard to use of judgment as well as dealing with changes in the work setting; occasional interaction with supervisors and coworkers; limited to incidental contact with the public; off-task time would be accompanied by normal breaks; limited to unskilled work and no previous past work with a light exertional level. Tr. 101-02. The VE testified there appeared to be work for an individual as described by the ALJ in the following positions: an electronics worker, DOT number 726.687-010, light, SVP of 2, with 41,000 positions in the national economy; a laundry folder, DOT number 369.687-018, light, SVP of 2, with 397,000 positions in the national economy; and a shipping and receiving weigher, DOT number 222.387-074, light, SVP of 2, and 80,000 positions in the national economy. Tr. 102.
The ALJ then asked the VE to consider the first hypothetical but changed the exertional level to sedentary. Tr. 103. The VE testified that there would be work in the following positions in the ALJ's altered hypothetical: sorter, DOT number 521.687-086, sedentary, SVP of 2, with 15,000 jobs in the national economy; document preparer, DOT number 249.587-018, sedentary, SVP of 2, and 103,000 jobs in the national economy; and final assembler, DOT number 713.687-018, sedentary, SVP of 2, and 6,900 jobs in the national economy. Tr. 103-04.
The ALJ altered the second hypothetical to include a sit/stand option or a brief postural change at or near a workstation that would occur less than twice in an hour for no longer than five minutes at a time. Tr. 104. The VE testified that, under the third hypothetical, light and sedentary positions could still be performed. Id. The ALJ asked whether all jobs would be eliminated in the national economy if the individual, because of either the combination of the symptoms, the severity or the unpredictability, the individual would be off task beyond the normal breaks or 15 percent or more of the working day. Tr. 104-05. The VE affirmed all work would be eliminated with the added off-task alteration to the hypothetical. Tr. 105. Additionally, the VE confirmed that if the individual were absent from work on a consistent basis—two or more days a month—it would render the individual "unemployable." Id.
The ALJ asked whether all work would be eliminated if the individual in the hypothetical experienced a "marked loss" in one of the basic mental demands for unskilled work, including understanding, remembering, carrying out simple instructions; using judgment; responding appropriately to supervisors and coworkers; and dealing with change in the routine work setting. Tr. 106. The VE affirmed all work would be eliminated. Id. Finally, the ALJ asked whether all work for the hypothetical individual would be eliminated if the individual were unable to work eight hours a day on a consistent basis. Tr. 107. The VE testified all work would be eliminated under the altered hypothetical. Id. II. Discussion
A. The ALJ's Findings
In his May 21, 2019 decision, the ALJ made the following findings of fact and conclusions of law:
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2020.
2. The claimant has not engaged in substantial gainful activity since October 14, 2015, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: Fibromyalgia Syndrome (FMS) vs. Chronic Pain Syndrome (CPS), Post Traumatic Stress Disorder (PTSD), Major Depressive Disorder, Anxiety Disorder, and Unspecified Cognitive Slowing (20 CFR 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 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform a range of sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except: No more than frequent overhead and directional reaching, operating hand controls, handling, fingering, or feeling with the right (dominant) upper extremity. No more than frequent overhead reaching with the left upper extremity. No more than occasional balancing, climbing (ramps and stairs), stooping, kneeling, or crouching. Never climb ladders, ropes, or scaffolds. No work on unprotected heights. No operation of a motor vehicle as an occupational requirement. No work around open flames or open bodies of water. Never crawl. No work around dangerous machinery or moving mechanical parts. No exposure on a concentrated basis to extremes of cold and heat. Limited to simple and routine tasks, simple work-related decisions as to the use of judgement and dealing with changes in the work setting. No more than incidental public contact, and no more than occasional interaction with supervisors and coworkers. No work where the noise intensity is greater than a level of 3 (moderate) or less. Off-task up to 5% of the workday in addition to normal breaks.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).Tr. 12-13, 15, 19, 26-28.
7. The claimant was born on September 29, 1979 and was 36 years old, which is defined as a younger individual age 18-44, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 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 CFR 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 CFR 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 October 14, 2015, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).
B. Legal Framework
1. The Commissioner's Determination-of-Disability Process
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," defined as:
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 12 months[.]42 U.S.C. § 423(d)(1)(A); see also 42 U.S.C. § 1382c(a)(3)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (discussing considerations and noting "need for efficiency" in considering disability claims). An examiner must consider the following: (1) whether the claimant is working; (2) whether the claimant has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents the claimant from performing specific jobs that exist in significant numbers in the national economy. See 20 C.F.R. §§ 404.1520, 416.920. These considerations are sometimes referred to as the "five steps" of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).
The Commissioner's regulations include an extensive list of impairments ("the Listings" or "Listed impairments") the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. §§ 404.1525, 416.925. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, he will be found disabled without further assessment. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that his impairments match several specific criteria or be "at least equal in severity and duration to [those] criteria." 20 C.F.R. §§ 404.1526, 416.926; Sullivan v. Zebley, 493 U.S. 521, 530-31 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
A claimant is not disabled within the meaning of the Act if he can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, §§ 404.1520(a), (b), 416.920(a), (b); Social Security Ruling ("SSR") 82-62 (1982). The claimant bears the burden of establishing his/her inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the regional economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that he is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen, 482 U.S. at 146 n.5 (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of "any final decision of the Commissioner made after a hearing to which he was a party." 42 U.S.C. § 405(g). The scope of that federal court review is narrowly tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See Id., Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to "try these cases de novo or resolve mere conflicts in the evidence." Vitek v. Finch, 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings, and that the conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed "even should the court disagree with such decision." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
C. Analysis
Plaintiff argues (1) the ALJ did not explain his findings regarding her residual functional capacity ("RFC") as required by SSR 96-8p, and (2) improperly evaluated Plaintiff's subjective symptomology. Pl.'s Br. 18, 33; ECF No. 14. The Commissioner contends that substantial evidence supports the ALJ's finding that Plaintiff was not under a disability. Def.'s Br. 16, ECF No. 16.
1. The ALJ's RFC Determination
An RFC assessment is a determination of an individual's ability to perform sustained work-related activities on a regular and continuing basis. SSR 96-8p, 1996 WL 374184 at *1. "RFC is not the least an individual can do despite his or her limitations or restrictions, but the most." Id. (emphasis in original). At the administrative hearing level the ALJ is responsible for assessing a claimant's RFC. 20 C.F.R. § 404.1546(c); § 416.946. An ALJ's RFC assessment should be based on all relevant evidence and will consider the claimant's ability to meet the physical, mental, sensory, and other requirements of work. 20 C.F.R. § 404.1545(a)(3)-(4); § 419.945(a)(3)-(4).
The Administration's policy interpretation on assessing an individual's RFC emphasizes that 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 paragraphs (b), (c), and (d) of 20 CFR 404.1545 and 416.945. Only after that may 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 functions identified in the cited regulations include physical abilities, mental abilities, and other abilities affected by impairments. 20 C.F.R. § 404.1545(b)-(d); § 416.945(b)-(d).
Here, at Step Two of the sequential evaluation process, the ALJ determined that Plaintiff had the severe impairments of "Fibromyalgia Syndrome (FMS) vs. Chronic Pain Syndrome (CPS), Post Traumatic Stress Disorder (PTSD), Major Depressive Disorder, Anxiety Disorder, and Unspecified Cognitive Slowing." Tr. 13. Further, the ALJ found Plaintiff has the following non-severe impairments: "Spine Impairment (including degenerative disc disease), Headache/Seizure Impairment, Obesity, and Hypertension. Id. The ALJ explained why certain impairments were labeled accordingly, and cited support for the determinations. Tr. 13-15. At Step Three the ALJ determined that Plaintiff does not have an impairment, or combination of impairments, that meets or medically equals the severity of a listed impairment. Tr. 15.
The ALJ determined that Plaintiff has the RFC to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.1567(a) with several physical and cognitive limitations. Tr. 19. The ALJ noted that in making his RFC assessment he "considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence, based on the requirements of 20 CFR 404.1529 and CFR 416.929 and SSR 16-3p." Tr. 20. The ALJ also indicated that he considered opinion evidence in accordance with the regulations. Id.
Plaintiff asserts that in formulating his RFC assessment the ALJ did not satisfy SSR 96-8p, which provides:
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.Pl.'s Br. 18-19 (quoting SSR 96-8p, 1996 WL 374184, at *7). The court notes, though, that ALJs are not required to specifically discuss and analyze every piece of evidence in the case in their narrative opinions so long as it is possible for the reviewing court to realize that all relevant evidence was considered, though not written about, in reaching the ultimate decision. Phillips v. Barnhart, 91 F. App'x 775, 780 n.7 (3d Cir. 2004) ("[T]he ALJ's mere failure to cite specific evidence does not establish that the ALJ failed to consider it."); Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998) ("Although required to develop the record fully and fairly, an ALJ is not required to discuss every piece of evidence submitted."); Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (finding that "there is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision, so long as the ALJ's decision ... is not a broad rejection" insufficient to enable the reviewing court to conclude that the ALJ considered the claimant's medical condition as a whole).
Plaintiff argues that the ALJ did not consider all of her physical and mental impairments on a function-by-function basis to determine how they affect her ability to work as required by SSR 96-8p and as set forth in Thomas v. Berryhill, 916 F.3d 307 (4th Cir. 2019) (finding that a proper RFC analysis has three components: evidence, logical explanation, and conclusion). Pl.'s Br. 19-20. Plaintiff describes three impairments she contends the ALJ failed to properly consider: her IQ test scores and traumatic brain injury ("TBI"); her headaches; and her moderate limitations in concentration, persistence, and pace.
a. Plaintiff's IQ Test Scores and TBI
Plaintiff argues the ALJ failed to properly consider the results of psychological testing performed by Dr. Ronald Nappi in February 2016. Pl.'s Br. 20-23. The Commissioner argues that substantial evidence supports that Plaintiff's IQ-related diagnoses are not generally persuasive. Def.'s Br. 16.
On February 23, 2016, Ronald Nappi, Ed.D. performed psychological testing on Plaintiff. Tr. 476-82. Dr. Nappi noted that Plaintiff reported being struck by a truck while walking through a parking lot in 2015, and suffered a head trauma with loss of consciousness. Tr. 476. Additionally, Dr. Nappi noted that Plaintiff reported memory loss affecting her daily functioning and chronic headaches. Id. Dr. Nappi noted that Plaintiff reported she began outpatient psychological treatment in 2016, and treats at All Seasons Counseling once a week, though, he also noted that Plaintiff has not had previous psychological testing, only medical hospitalizations, and no psychiatric hospitalizations. Id. Dr. Nappi conducted a mental status exam of Plaintiff noting that her "behavior was open, but somewhat distracted by pain and headache as she reported often her head hurt and this has occurred since the accident and she periodically would rub the sides of her head and close her eyes." Tr. 477. He also noted that Plaintiff had difficulty concentrating. Id. With regard to Plaintiff's cognitive functioning, Dr. Nappi noted "poor remote and recent memory." Tr. 478. He found her insight to be poor, her judgment was "fair to poor," her concentration was poor, her ability to abstract was fair, her impulsivity and energy level were low, and her appetite and sleep were poor. Id. Dr. Nappi diagnosed Plaintiff with "309.81, [PTSD]; 296.23, Major depressive disorder, recurrent, severe; 300.02, generalized anxiety disorder;" and an unidentified finding of "S06.2XGS followed by 294.10 neurocognitive disorder due to [TBI] and loss of consciousness." Id. Dr. Nappi administered ten subtests of the Wechsler Adult Intelligence Scale-4th Edition ("WAIS-IV") testing on Plaintiff to derive her composite scores. Tr. 479. He determined Plaintiff's general cognitive abilities were "within the extremely low range of intellectual functioning" as measured by her full-scale IQ score of 67. Id. He found that her verbal and nonverbal reasoning abilities were in the borderline range as measured by her Verbal Comprehension Index ("VCI") score of 72 and her Perceptual Reasoning Index ("PRI") score of 75. Id. Dr. Nappi indicated that Plaintiff's ability to sustain attention, concentrate, and exert mental control was in the borderline range with a Working Memory Index ("WMI") score of 77, and her ability to process simple or routine visual material without making errors was in the "extremely low range when compared to her peers" with a Processing Speed Index ("PSI") score of 62. Tr. 481. Dr. Nappi noted that her "WAIS-IV Testing indicated a significant decline in cognitive functioning having previously graduated high school, in regular classes. She had also completed training and worked as a medical assistant and additional certification as a CNA following school and training." Tr. 481. He also noted that the WRAT-IV was not administered "due to complaints of severe headache, pain, and discomfort." Id.
In his discussion of Plaintiff's impairments, the ALJ addressed in detail Plaintiff's alleged TBI and found it to be a non-medically determinable impairment ("MDI"). Tr. 14. Citing to Plaintiff's Disability Report-Adult, her Pre-Hearing Brief, and her hearing testimony, the ALJ noted that Plaintiff "made numerous TBI-related allegations. This includes complaints about potentially related headaches, seizures, cognitive-deficits, blurry vision, dizziness, memory-loss, and confusion." Tr. 14. The ALJ determined, however, that without objective medical confirmation Plaintiff's subjective allegations did not prove that an impairment exists and "the record as a whole is more consistent with a finding of non-MDI TBI." Id. The ALJ cited the following:
This includes multiple imaging/signal studies that were not consistent with brain damage (See e.g. Exhibits 4F/3, 10, 17; 14F/30 ("within normal limits"), 57; 17F/3; 18F/5). Additionally, according to the emergency room staff that responded to the
alleged MVA, there was no head injury (E.g. Exhibit 3F/50. See e.g. Exhibit 3F/48 (" . . . atraumatic . . . no signs of skull injury . . .")). Likewise, contrary to the allegations (e.g. Exhibit 4F/3), contemporaneous medical sources said that there was no loss of consciousness (E.g. Exhibit 1F/24).Id. The ALJ recognized that "subsequent medical sources (arguably) endorsed TBI or related problems like post-concussion syndrome" but found this evidence to be unpersuasive and inconsistent with the objective medical records. Id. The ALJ also noted that "much of the 'medical support' for the alleged TBI-related problems is, in context, from various sources like non-medical doctors or mental health counselors who did not perform (or were not qualified to perform) full physical examinations and assess for a traumatic brain injury." Id. The ALJ concluded:
Subjective allegations included by a medical source in a medical record without medically documented findings do not provide a[n] evidentiary sustainable diagnosis in the absence of MRI results, EEG results, clinically observed deficits, or other objective evidence. The claimant bears the burden of proving the presence of a TBI, and in this case the evidence does not support a conclusion that there is a medically determinable impairment of a traumatic brain injury under the rules and regulations of the Social Security Administration. Social Security Ruling 96-4p states, "No symptom or combination of symptoms can be the basis for a finding of disability, no matter how genuine the individual's complaints may appear to be, unless there are medical signs and laboratory findings demonstrating the existence of a medically determinable physical or mental impairment." As a result, the undersigned finds this condition not medically determinable.Tr. 15.
Citing to Dr. Nappi's mental status exam, Plaintiff argues that "Dr. Nappi performed medically acceptable clinical diagnostic techniques in finding [Plaintiff] suffered from traumatic brain injury." Pl.'s Br. 22. However, Dr. Nappi did not diagnose Plaintiff with TBI—he diagnosed her with neurocognitive disorder. The Commissioner argues that "[s]ubstantial evidence supports the ALJ's finding that the record as a whole supported that 'TBI' was not a medically determinable impairment (Tr. 14, citing Exhs. 4F, 14F, 17F, 18F)." Def.'s Br. 17. The Commissioner notes upon discharge from the emergency room on the date of her accident Plaintiff was diagnosed with muscle strain with a return to work in two days; at her three-day follow-up appointment her treating physician released her to return to light duty work with no lifting over five pounds. Id. (citing Tr. 537, 468). The Commissioner also cites to other evidence which "supported the ALJ assessment that [Plaintiff] had no medically determinable brain injury on which to base her low scores" including a treating neurologist report that explicitly noted Plaintiff's cognitive assessment was limited by her poor effort. Id. (citing Tr. 556).
Plaintiff asserts that although "the ALJ may disagree with Dr. Nappi's diagnosis of traumatic brain injury, there is no basis to the statement that the objective test results are influenced by subjective reports." Pl.'s Br. 21. The Commissioner maintains that "because Dr. Nappi assessed [Plaintiff's] IQ score based on [Plaintiff's] self-made diagnosis of TBI/post-concussive syndrome, his perspective was skewed or, as the ALJ noted, 'not generally persuasive' (Tr. 16)." Def.'s Br. 18.
The ALJ discussed the IQ-related evidence and considered Dr. Nappi's examination report, including all of Plaintiff's IQ and cognitive test scores. Tr. 16. However, the ALJ reasoned that Dr. Nappi's IQ-related diagnoses and test results were not generally persuasive because, in part, he appeared to be relying on the subjective allegations from Plaintiff about TBI. Id. The ALJ determined:
There is little objective etiology for the nature and degree of the low scores; symptoms are not impairments, and the claimant bears the burden of proving the existence of an underlying impairment. Furthermore, even if one were to assume arguendo that there was still sufficient evidence here for a medically determinable cognitive-type impairment, the record would not support this degree of low IQ. In addition to the previously discussed factors (e.g., education and training), this conclusion is supported by the admitted driving and childcare, as well as by the prevalence of Axis I rather than Axis II diagnoses from the treating and subsequent
examining sources. This conclusion is also supported by the State agency opinion evidence, and by the nature and frequency of the benign/silent clinical evidence regarding memory, cognition, and fund of knowledge signs (See e.g. Exhibits 6A; 4F/4, 10, 13; 7F/4; 12F/4; 14F/44; 16F/5).Id.
Mental disorders are diagnosed according to a manual published by the American Psychiatric Association called the Diagnostic and Statistical Manual of Mental Disorders. A diagnosis under the fourth edition of this manual, which was often referred to as simply the DSM-IV, had five parts, called axes. Each axis of this multi-axial system gave a different type of information about the diagnosis. Axis I: Clinical disorders; Axis II: Personality disorders; Axis III: General medical disorders; Axis IV: Psychosocial and environmental factors; and Axis V: The Global Assessment of Functioning. When the fifth edition, the DSM-5, was compiled, it was determined that there was no scientific basis for dividing the disorders in this manner, so the multi-axial system was done away with. Instead, the new non-axial diagnosis combines the former Axes I, II and III and include separate notations for the type of information which would have previously fallen into Axes IV and V. See https://www.verywellmind.com/five-axes-of-the-dsm-iv-multi-axial-system-1067053 (last visited Jan. 26, 2021).
The ALJ relied on Plaintiff's medical records following the October 14, 2015 accident, including records from Colleton Medical Center. Tr. 487-548. These records indicate Plaintiff was a pedestrian and was hit by a vehicle in a parking lot. Tr. 529. Emergency Room notes from the day of the accident indicate Plaintiff's head and neck were "atraumatic," and "[n]o head injury" is indicated in Plaintiff's evaluation. Tr. 529-30; 532. "[N]o signs of skull injury" is noted in Plaintiff's physical examination following the accident. Tr. 530. Upper back pain is the main injury noted in medical records following the accident. Tr. 487-535. At the point of discharge (the same day as the accident) Plaintiff complained that "she now hurts in her mid back" and wanted x-rays. Tr. 532. The x-ray of Plaintiff's spine revealed no fractures and no disc abnormalities. Tr. 535.
The next day, a record from a follow-up with Plaintiff's treating physician, Dr. Haynes, indicates Plaintiff was struck in the parking lot, but was not knocked to the ground and "did not lose consciousness." Tr. 471. Further, the record indicates that Plaintiff was able to get up and was then transported to the emergency room where she had x-rays and was discharged with diagnoses of contusions and muscle strain. Id. At an October 23, 2015 follow-up Dr. Haynes indicated Plaintiff had discomfort in her chest wall, improvement in her abdominal discomfort, and continued neck pain. Tr. 467. Plaintiff indicated she would "like to try to return to light-duty next week," and Dr. Haynes cleared her for light-duty work as of October 27, 2015. Id. A medical record from December 21, 2015 indicates that Plaintiff was "[b]othered mostly by pain and stiffness in the neck which causes headaches." Tr. 498. Plaintiff indicated that her other injuries had "fairly well resolved" and she had no significant lower back or shoulder pain. Id.
Records from the Medical University of South Carolina ("MUSC") from 2016, indicate Plaintiff had normal or "negative" MRIs of the head and spine. Tr. 549-570. Though these post-accident records indicate that Plaintiff experienced "loss of consciousness" following the 2015 accident, medical records contemporaneous to the accident noted no loss of consciousness. Id. A review of neurological medical records from MUSC do not indicate a medically-determinable brain injury. See id. Dr. Schmitt, noting Plaintiff had a normal MRI of her brain, assigned Plaintiff a score of 26/30 on the Montreal Cognitive Assessment Test ("MCAT"), and mentioned the score was "limited by poor effort." Tr. 555-56. Additionally, Plaintiff's neurological exams were normal with the following comments: "oriented to person, place, and time," "fluent and cogent; able to follow commands appropriately," "good recall of personal information," and "fund of knowledge is appropriate." Tr. 558. The report from a September 2017 psychological evaluation indicates that Plaintiff scored a 27 out of 30 on the Mini-Mental State Examination which fell within normal limits. Tr. 628. As noted by the Commissioner, Plaintiff "never alleged an intellectual impairment in her application [for disability] or elsewhere in the voluminous record (Tr. 357)." Def.'s Br. 18. In spite of the medical record, the ALJ still gave Plaintiff's symptoms of memory loss and confusion special consideration and found Plaintiff had "unspecified cognitive slowing." Tr. 13.
The ALJ determined that the record is not consistent with a marked mental limitation, and her limitations, whether considered singly and in combination, do not meet or medically equal a listing. Tr. 16. The ALJ considered the record in its entirety in rendering this determination, including a review of Plaintiff's medical records and treatment notes. Contrary to Plaintiff's assertion that the ALJ failed to explain how he discounted Plaintiff's cognitive scores, the ALJ thoroughly explained why he discounted the scores, while explaining the relevant portions of the record and citing many sections of same.
The ALJ has the duty to weigh the evidence, resolve material conflicts in the record, and decide the case accordingly. See Richardson v. Perales, 402 U.S. at 399. This court may not reweigh the evidence or substitute its own judgment for the Commissioner's, even if it finds the evidence is susceptible to more than one rational interpretation. See Hays, 907 F.2d at 1456. Here, the ALJ examined the impact of a possible TBI several times in his order, and "[a]bsent evidence to the contrary, the court takes the ALJ at his word." Stufft v. Saul, No. 5:18-CV-1651-KDW, 2019 WL 3561877, at *9 (D.S.C. Aug. 6, 2019) (citing Reid v. Comm'r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014)). Accordingly, the undersigned finds the ALJ's decision, specifically regarding his decision to discount Plaintiff's TBI allegations and her IQ score, is supported by substantial evidence. In Mascio v. Colvin, the Fourth Circuit addressed whether an ALJ's failure to perform a function-by-function assessment necessitates remand. Mascio v. Colvin, 780 F.3d 632, 636-37 (4th Cir. 2015). The court held that "a per se rule [requiring remand] is inappropriate given that remand would prove futile in cases where the ALJ does not discuss functions that are 'irrelevant or uncontested.'" Id. at 636. Nevertheless, the court "agree[d] with the Second Circuit that '[r]emand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review.'" Id. Here, there is no deficient analysis of Plaintiff's alleged TBI symptoms and IQ score. Accordingly, the undersigned recommends affirming the ALJ on this issue.
b. Plaintiff's Headaches
Plaintiff argues that the ALJ failed to explain how he determined her headaches were non-severe impairments, or how he accounted for them in his RFC assessment. Pl.'s Br. 23, 25. The Commissioner contends that "[w]ith specific reference to the evaluation of [Plaintiff's] complaints of headache symptoms, substantial evidence supports that they were not separate and apart from her severe fibromyalgia/chronic pain impairment." Def.'s Br. 22. The Commissioner recognizes that the ALJ noted Plaintiff's headaches and other symptoms were documented complaints, but were not verified by objective testing. Id.
As noted above, at Step Two the ALJ found that, in addition to several severe impairments, Plaintiff had the non-severe impairments of spine impairment, headache/seizure impairment, obesity, and hypertension. Tr. 13. The ALJ determined that "the totality of the record regarding these conditions is most consistent with nonseverity." Id. The ALJ noted that claimant's doctors "explained that the claimant's brain and brain activity studies were either inconclusive or inconsistent with headache/seizure activity. 'Inconclusive' is insufficient; the claimant bears the burden of proof (See e.g. Exhibits 4F/3, 10, 17; 14F/2, 12, 30 ('within normal limits'), 57; 17F/3, 5; 18F/5)." Id. The ALJ indicated that another factor supporting non-severity was the overall clinical record, noting that Plaintiff's "medical sources usually made no mention of objective, clinically confirmed signs of headache . . .. Additionally, many of the related diagnoses or clinical reports are, in context, either from less-qualified sources (e.g., non-medical doctors, therapists, or mental counselors trying to address physical issues), or overly based/reliant-on subjective allegations . . .." Tr. 13-14. The ALJ stated that he accounted for most of Plaintiff's non-severe symptoms in his consideration of Plaintiff's severe symptoms. Tr. 15.
For example, several of the claimant's medical sources explained that her FMS and/or severe mental impairments could cause the alleged headaches, (pain-related) high blood pressure, and seizure-like symptoms (See e.g. Exhibits 4F/10; 18F/5). .
. . To the extent that the record supports significant pain-related and other physical problems, these problems are accounted for and subsumed with the FMS/CPS impairments for purposes of this decision.Id.
In his discussion of his RFC assessment, the ALJ noted Plaintiff's testimony regarding her symptoms, including headaches/migraines and her sensitivity to noise; "potentially related clinical examination abnormalities" including signs or reports about headaches; and the lack of objective diagnostic imaging or nerve study results consistent with allegations of regular, debilitating headaches. Tr. 20-22. The ALJ noted that, consistent with the opinions of the State agency physicians, the record contains "little in the way of objective clinical proof of problems with . . . (headache-related) noise restrictions . . .." Tr. 24. However, the ALJ recognized the new evidence contained in the updated record that included evidence of FMS symptoms, including migraines, from doctors who treated or examined Plaintiff. Id. The ALJ determined the updated records were more consistent with his RFC findings—which included a limitation on noise intensity level. Id., Tr. 19.
Based upon the foregoing, the undersigned finds that the ALJ explained how he determined Plaintiff's headaches were non-severe impairments, and how he accounted for them in his RFC assessment. Furthermore, to the extent that the ALJ may have erred in finding any of Plaintiff's alleged impairments not to be severe, any such error was harmless. See Mickles v. Shalala, 29 F.3d 918, 921 (4th Cir. 1994) (affirming denial of benefits when ALJ erred in evaluating a claimant's pain because "he would have reached the same result notwithstanding his initial error"). "As long as a claim is not denied at step two, it is generally unnecessary for the ALJ to have specifically found any additional alleged impairment to be severe." Bryant v. Comm'r, Soc. Sec. Admin., No. 2:15-CV-4786-RMG-MGB, 2017 WL 394500, at *9 (D.S.C. Jan. 10, 2017), report and recommendation adopted sub nom. Bryant v. Colvin, No. CV 2:15-4786-RMG, 2017 WL 384302 (D.S.C. Jan. 25, 2017)). See also Martinez v. Astrue, No. CA 1:11-850-CMC-SVH, 2012 WL 3580675, at *10 (D.S.C. July 30, 2012), report and recommendation adopted, No. CA 1:11-850-CMC-SVH, 2012 WL 3582799 (D.S.C. Aug. 17, 2012) ("A finding of a single severe impairment at step two of the sequential evaluation is enough to ensure that the factfinder will progress to step three."). In other words, "[a]s long as the ALJ determines that the claimant has at least one severe impairment and proceeds to discuss all of the medical evidence, any error regarding failure to list a specific impairment as severe at step two is harmless." McClain v. Colvin, No. 1:12CV1374, 2014 WL 2167832, at *4 (M.D.N.C. May 23, 2014) (citations omitted).
c. Plaintiff's Moderate Limitations in Concentration, Persistence and Pace
Plaintiff first asserts that the ALJ failed to explain how he found that she had only moderate difficulties in concentration, persistence, and pace given that two specialists found she had "borderline abilities to sustain attention, concentration, and exert mental control, and fair to poor concentration levels (Tr. 481, 629)." Pl.'s Br. 28. Plaintiff also argues the ALJ's decision does not reflect that he acted in accordance with Mascio v. Colvin, 780 F.3d 632, nor did he consider the evidence regarding Plaintiff's psychomotor retardation and side effects of her medications. Pl.'s Br. 31-32. The Commissioner contends that substantial evidence "supports the ALJ's well-explained assessment of [Plaintiff's] residual functional capacity for concentration, persistence, or pace." Def.'s Br. 25. The Commissioner further argues that Plaintiff's psychomotor retardation—which the Commissioner notes is a not a medical condition but is a symptom—did not cause disabling difficulties in concentration persistence, or pace; and the ALJ noted in detail "each treatment sought and recommended [to Plaintiff], including all prescribed medications, and each alleged side effect (Tr. 20)." Id. at 25, 28.
At Step Three of the sequential evaluation the ALJ evaluated Plaintiff's mental impairments and determined that Plaintiff had moderate limitation in the category of concentrating, persisting, or maintaining pace. Tr. 18. The ALJ noted that parts of the record supported problems in this category; however, the overall record was "more consistent with a moderate rather than a greater long-term finding." Id. The ALJ explained:
This includes overlap with previously discussed mitigating factors, such as the admitted driving, the admitted childcare, and the nature and frequency of the silent/benign mood/behavior-related clinical evidence in the record (See e.g. Exhibits 5E; 15/57; 16F/5). Additionally, the claimant's medical sources commonly described her as normal or unremarkable in areas like alertness and attention (See e.g. Exhibits 3F/61; 4F/10, 13; 6F/12; 7F/4; 15F/57). The record also does not reflect significant, regular, and long-term problems in terms of her ability to sustain conversations or complete examinations with medical sources (See e.g. Exhibits 3F; 4F; 6F; 7F; 15F).Id.
In his RFC assessment the ALJ determined that Plaintiff has the RFC to perform sedentary work with some postural and environmental limitations. Tr. 19. He noted Plaintiff is limited to "simple and routine tasks, simple work-related decisions as to the use of judgement and dealing with changes in the work setting. No more than incidental public contact, and no more than occasional interaction with supervisors and coworkers. No work where the noise intensity is greater than a level of 3 (moderate) or less. Off-task up to 5% of the workday in addition to normal breaks." Id. In explaining his assessment the ALJ noted that his RFC finding was supported by Plaintiff's activities of daily living ("ADLs") which included "tasks like cooking, childcare, driving, and shopping; albeit even on a less than regular basis (See e.g. Exhibit 5E)." Tr. 23. The ALJ determined these activities supported a finding that Plaintiff had "sufficient basic mobility and mental acumen to operate a motor vehicle, to maintain a driver's license, and to safely look after minor children." Id. The ALJ considered the opinions of the State agency psychiatrists and found their assessments of mild-to-moderate Paragraph B rating to be persuasive citing again to Plaintiff's admitted activities and "the evidence of improvement with treatment, the general reliance on routine outpatient treatment modalities, and the prevalence of conservative or silent objective clinical signs in areas like alertness, memory, cognition, and behavior/cooperation . . . ." Tr. 24. The ALJ also considered the opinions of Plaintiff's two mental consultative examiners. Tr. 25. The ALJ noted that Dr. Nappi endorsed a "reduction to simple tasks and significant limitations in areas like social functioning, concentration, and persistence" but found that the medical evidence of record does not substantially support the limitations at the level found by Dr. Nappi. Id. The ALJ noted that Dr. Spivey also endorsed a "reduction to simple tasks, as well as problems in areas like social interaction, concentration, and persistence/reliability/remaining-on-task" but for the same reasons attributed to Dr. Nappi's opinion, the ALJ gave Dr. Spivey's opinion limited weight. Id.
In Mascio, the Fourth Circuit agreed with other circuits that an "ALJ does not account 'for a claimant's limitations in concentration, persistence, and pace by restricting the hypothetical question to simple, routine tasks or unskilled work.'" Mascio v. Colvin, 780 F.3d at 638 (quoting Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011) (joining the Third, Seventh, and Eighth Circuits)). The court determined that "the ability to perform simple tasks differs from the ability to stay on task. Only the latter limitation would account for a claimant's limitation in concentration, persistence, or pace." Id.
Here, the ALJ explained why he found Plaintiff had moderate limitations in her ability to concentrate, but his explanation does not offer enough detail regarding persistence and/or pace. The ALJ's specific percentage limitation to being off task is the type of limitation that properly accounts for a claimant's difficulties in persistence and pace in that it accounts for the claimant's ability to stay on task. Mascio v. Colvin, 780 F.3d at 638. However, the ALJ erred by failing to explain the source of his finding that Plaintiff would be off task 5% percent of the workday. Carter v. Berryhill, No. 2:17-CV-04399, 2018 WL 4169108, at *3 (S.D.W. Va. Aug. 30, 2018) (remanding the case because "the ALJ settled on a number for the off-task time without tying the finding to the evidence" and therefore "did not build a bridge from the evidence regarding [the plaintiff's] limitations to the conclusion that she would be off-task fifteen percent (15%) of the day, in addition to regular breaks."). Accordingly, the undersigned recommends remand on this issue because the ALJ's RFC assessment does not contain the necessary explanation that allows for meaningful judicial review. Mascio v. Colvin, 780 F.3d at 636.
2. Evaluation of Plaintiff's Subjective Symptomology
In her final argument Plaintiff asserts that the ALJ erred in finding that there was a lack of objective evidence to support her subjective reports and her "reports of disabling pain." Pl.'s Br. 33-34.
SSR 16-3p provides a two-step process for evaluating an individual's symptoms. First, the ALJ must determine whether the individual has a medically determinable impairment "that could reasonably be expected to produce the individual's alleged symptoms." SSR 16-3p, 2017 WL 5180304, at *3. In the second step the ALJ must "evaluate the intensity and persistence of an individual's symptoms such as pain and determine the extent to which an individual's symptoms limit his or her ability to perform work-related activities . . .." Id. at *4.
The ALJ considered Plaintiff's subjective statements by using the two-step process outlined above. The ALJ discussed Plaintiff's claims regarding her symptoms and side effects contained in her Function Reports, Pre-hearing Brief, records from MUSC, and hearing testimony. Tr. 20. The ALJ also discussed Plaintiff's allegations regarding the effect of her health problems on her ADLs and work-related functional limitations. Tr. 20-21. The ALJ noted that the record contained supportive diagnostic evidence, potentially related clinical examination abnormalities, and related treatment. Tr. 21. After considering this evidence, the ALJ determined that:
the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms. However, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely
consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.Id. The ALJ addressed specifically the diagnostic record regarding the lack of persuasiveness of the IQ/cognitive-related evidence, "including reliance on unsupported TBI-related allegations" and inconsistencies in vocational factors. Id. The ALJ also noted benign brain imaging/activity study results and the lack of objective diagnostic imaging or nerve study results. Tr. 22. The ALJ found that the overall clinical record was "not entirely consistent with the full extent of the subjective allegations" and noted normal findings or minor abnormalities reported by Plaintiff's medical sources. Id. The ALJ stated that the clinical record lacked "secondary abnormalities commensurate with the reported allegations" and the some of the outlined clinical abnormalities were "not fully documented with consistency or reflected as short-term in nature." Id. The ALJ noted that Plaintiff's "overall treatment histories are also not entirely consistent with the level of limitations reported." Tr. 23. The ALJ provided citations to the record to support the inconsistencies he cited. Tr. 21-23. The ALJ also discussed and weighed the opinion evidence. Tr. 23-25. After discussing the evidence, the ALJ concluded:
In sum, the above RFC assessment is supported by substantial evidence from subjective allegations, diagnostic and other objective medical evidence, treatment history, opinion evidence, and other relevant factors. Although limited, the claimant retains the ability to perform work activity within the range allowed by this finding.Tr. 26 (emphasis added).
Based on the undersigned's review of the record and applicable law, the undersigned finds that the ALJ's decision reflects that he followed the two-step process in evaluating Plaintiff's symptoms. The ALJ also pointed to evidence in the record to support his conclusion. However, because the undersigned recommends remand based on the ALJ's lack of explanation regarding Plaintiff's moderate limitations in concentration, persistence, and pace, the ALJ should take the opportunity to revisit the record evidence regarding Plaintiff's claims of secondary abnormalities, lack of improvement of symptoms, and worsening conditions reflected in increased medical treatments. See Pl.'s Br. 34-35. III. Conclusion and Recommendation
The court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported as a matter of fact and law. Based on the foregoing, the undersigned cannot determine that the Commissioner's finding is supported by substantial evidence or is without legal error.
Accordingly, pursuant to the power of the court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in Social Security actions, it is recommended that the Commissioner's decision be reversed and remanded for further administrative action as detailed within.
IT IS SO RECOMMENDED. January 26, 2021
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge