Opinion
5:21-CV-00046-FL
02-01-2022
Gail Annette Pizarro, Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social Security, Defendant.
MEMORANDUM & RECOMMENDATION
Robert T. Numbers, II, United States Magistrate Judge
Plaintiff Gail Pizarro challenges Administrative Law Judge (“ALJ”) Joseph Booth, III's denial of her application for social security income. Pizarro claims that ALJ Booth erred in (1) determining her residual functional capacity (RFC) and (2) considering the disability decision from the Department of Veterans Affairs (VA). Both Pizarro and Defendant Kilolo Kijakazi, Acting Commissioner of Social Security, have moved for judgment on the pleadings in their favor. D.E. 18, 23.
After reviewing the parties' arguments, the undersigned has determined that ALJ Booth erred in his determination. The RFC accommodates Pizarro's need for restroom use but fails to specify the frequency and duration she would need the access. And ALJ Booth's reasons for giving less than substantial weight to accord Pizarro's VA disability rating do not comply with Fourth Circuit case law. The undersigned thus recommends that the court grant Pizarro's motion, deny Kijakazi's motion, and remand this matter to the Acting Commissioner for further consideration. 1
The court has referred this matter to the undersigned for entry of a Memorandum and Recommendation. 28 U.S.C. § 636(b).
Pizarro initially argued that the matter should be remanded to a new ALJ due to constitutional problems with the Social Security Administration's structure. But Pizarro later said that the court should only reach this issue if it “does not remand on the other issues” she raised. D.E. 25 at 1. Since this opinion recommends remand on the substantive issues, it will not address the constitutional issue.
I. Background
In August 2018, Pizarro applied for disability benefits alleging a disability that began in December 2012. After the Social Security Administration denied her claim at the initial level and upon reconsideration, Pizarro appeared for a hearing before ALJ Booth to determine whether she was entitled to benefits. ALJ Booth determined Pizarro had no right to benefits because she was not disabled. Tr. at 12-23.
ALJ Booth found that Pizarro's obesity, psoriasis/dermatitis, degenerative disc disease of the lumbar spine, pes planus, degenerative joint disease of the right knee, gastroesophageal reflux disease (GERD), irritable bowel syndrome (IBS) with constipation, and hypertension were severe impairments. Tr. at 14. ALJ Booth also found that Pizarro's impairments, either alone or in combination, did not meet or equal a Listing impairment. Tr. at 16.
ALJ Booth then determined that Pizarro had the RFC to perform medium work with other limitations. Tr. at 17-18. She can frequently climb ramps and stairs. Id. Pizarro can occasionally climb stepladders up to four vertical feet in height but cannot climb higher ladders. Id. And she cannot climb ropes and scaffolds. Id.
Pizarro can frequently balance, stoop, kneel, crouch, and crawl. Id. She can perform frequent handling, fingering, pushing, and pulling with her bilateral upper extremities. Id.
Pizarro can have occasional exposure to extreme cold and heat, wetness, humidity, vibration, and high, exposed places. Id. She needs access to indoor toilet facilities within the work area. Id. And she needs the ability to wear gloves to perform the assigned work as needed. Id. 2
ALJ Booth concluded that Pizarro could not perform her past relevant work as a logistics specialist. Tr. at 21. But considering her age, education, work experience, and RFC, ALJ Booth found that other jobs existed in significant numbers in the national economy that Pizarro could perform. Tr. at 22-23. These jobs include supply worker, dietary aide, and floor technician. Id. Thus, ALJ Booth found that Pizarro was not disabled. Tr. at 21.
After unsuccessfully seeking review by the Appeals Council, Pizarro commenced this action in February 2021. D.E. 5.
II. Analysis
A. Standard for Review of the Acting Commissioner's Final Decision
When a social security claimant appeals a final decision of the Commissioner, the district court's review is limited to determining whether, based on the entire administrative record, there is substantial evidence to support the Commissioner's findings. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is defined as “evidence which a reasoning mind would accept as sufficient to support a particular conclusion.” Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). The court must affirm the Commissioner's decision if it is supported by substantial evidence. Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996).
B. Standard for Evaluating Disability
In making a disability determination, the ALJ engages in a five-step evaluation process. 20 C.F.R. § 404.1520; see Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005). The ALJ must consider the factors in order. At step one, if the claimant is engaged in substantial gainful activity, the claim is denied. At step two, the claim is denied if the claimant does not have a severe impairment or combination of impairments significantly limiting him or her from performing basic work 3 activities. At step three, the claimant's impairment is compared to those in the Listing of Impairments. See 20 C.F.R. Part 404, Subpart P, App. 1. If the impairment is listed in the Listing of Impairments or if it equals a listed impairment, disability is presumed. But if the claimant's impairment does not meet or equal a listed impairment, the ALJ assesses the claimant's RFC to determine, at step four, whether he can perform his past work despite his impairments. If the claimant cannot perform past relevant work, the analysis moves on to step five: establishing whether the claimant, based on his age, work experience, and RFC can perform other substantial gainful work. The burden of proof is on the claimant for the first four steps of this inquiry, but shifts to the Commissioner at the fifth step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
C. Medical Background
As to Pizarro's back and lower extremity impairments, in March 2013, an MRI revealed pes planus in her right foot with fusion of the first metatarsophalangeal joint. Tr. at 19. Treatment notes also reflect Pizarro's obesity. Id.
Two years later, she reported hip pain that extended into her lower extremities and caused a burning sensation across her lower back. Id. An examination found some tenderness and limited range of motion, but no muscle spasms, a normal gait, and negative straight leg raises. Id.
An MRI in June of that year revealed mild degenerative changes in her lumbar spine. Id. And x-rays showed minimal degenerative joint disease in Pizarro's hips. Id. Providers prescribed medication for her joint pain. At follow-up visits in October and November, Pizarro displayed no limitations in mobility, with a normal gait, stance, and balance. Id.
Similar findings were noted in February and August 2016. Id. Records from these visits also reflect full strength in all extremities. Id. 4
An October 2016 x-ray showed mild degenerative joint disease. Id. Pizarro reported hip, knee, and ankle pain at a follow-up appointment two months later, but an examination noted normal findings. Id. Providers directed her to keep using shoe inserts for her pes planus (otherwise known as flat feet) and prescribed medication for her joint pain. Id.
In August 2017, Pizarro reported that she was doing well. Id. She was ambulatory, and examinations revealed benign findings with no restrictions. Id.
Providers have also assessed psoriasis/dermatitis. Id. Pizarro reported itching, burning, stinging, and mild pain from her psoriasis. Id. She treated it with topical creams. Id. And providers advised her to use mild soap and detergent. Id. Pizarro's psoriasis flares improved with treatment. Id. The record shows that psoriasis outbreaks respond well to treatment and resolve quickly. Tr. at 20.
Pizarro has GERD and IBS with constipation. Tr. at 19. She managed these conditions conservatively and treatment notes generally reflect good symptom control. Id.
State agency psychological consultants found that Pizarro's mental impairments were not severe. Tr. at 20. And the state agency medical consultants found that she could perform work at the medium exertional level with manipulative restrictions. Tr. at 20-21.
Pizarro testified that her impairments prevented her from working. Tr. at 18. She uses shoe inserts and a right foot brace for her pes planus. Id. She experiences knee swelling and has arthritis in her lower back. Id. Pizarro cannot walk fast. Id. And she estimated she could stand for 20-30 minutes. Id.
Pizarro's IBS causes constipation and cramping. Id. And her psoriasis produces widespread itching, as well as bleeding and cracking in her skin. Id. So she wears gloves during a psoriasis flare. Id. 5
Pizarro can drive, manage finances, and care for her personal needs. Id.
D. Residual Functional Capacity
Pizarro contends that ALJ Booth erred in determining her RFC by failing to sufficiently address her need to have restroom access. The Acting Commissioner asserts that the RFC sufficiently accounts for her restroom use. The undersigned cannot conclude that substantial evidence supports ALJ Booth's RFC determination because he failed to offer greater specificity about Pizarro's restroom access.
The RFC is a determination, based on all the relevant medical and non-medical evidence, of what a claimant can still do despite her impairments; the assessment of a claimant's RFC is the responsibility of the ALJ. See 20 C.F.R. §§ 404.1520, 404.1545, 404.1546; SSR 96-8p, 1996 WL 374184, at *2. If more than one impairment is present, the ALJ must consider all medically determinable impairments, including medically determinable impairments that are not “severe, ” when determining the claimant's RFC. Id. §§ 404.1545(a), 416.945(a). The ALJ must also consider the combined effect of all impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity. Id. § 404.1523; see Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989) (“[I]n evaluating the effect[] of various impairments upon a disability benefit claimant, the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them.”).
The ALJ must provide “findings and determinations sufficiently articulated to permit meaningful judicial review.” DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983); see also Wyatt v. Bowen, 887 F.2d 1082, 1989 WL 117940, at *4 (4th Cir. 1989) (per curiam). The ALJ's RFC determination “must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g. laboratory findings) and nonmedical evidence 6 (e.g. daily activities, observations).” Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting SSR 96-8p). Furthermore, “[t]he record should include a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence.” Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013). Fourth Circuit precedent “makes it clear that it is not [the court's] role to speculate as to how the ALJ applied the law to [her] findings or to hypothesize the ALJ's justifications that would perhaps find support in the record. Fox v. Colvin, 632 Fed.Appx. 750, 755 (4th Cir. 2015).
Social Security Ruling 96-8p explains how adjudicators should assess residual functional capacity. The Ruling instructs that the residual functional capacity “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” listed in the regulations. “Only after that may [residual functional capacity] be expressed in terms of the exertional levels of work, sedentary, light, medium, heavy, and very heavy.” SSR 96-8p. The Ruling further explains that the residual functional capacity “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).” Id.
There is no “per se rule requiring remand when the ALJ does not perform an explicit function-by-function analysis[.]” Mascio, 780 F.3d at 636. But “[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. (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)). The function-by-function requirement can be satisfied by reference to a properly conducted analysis by a state agency consultant. See, e.g., Linares v. Colvin, No. 5:14-CV-00129, 2015 WL 4389533, at *3 (W.D. N.C. July 17, 2015) 7 (“Because the ALJ based his RFC finding, in part, on the function-by-function analysis of the State agency consultant, the ALJ's function-by-function analysis complied with [Soc. Sec. Ruling] 96-8p.” (citing Lemken v. Astrue, No. 5:07-CV-33-RLV-DCK, 2010 WL 5057130, at *8 (W.D. N.C. July 26, 2010))).
ALJ Booth's RFC found that Pizarro needed access to indoor toilet facilities within the work area. Tr. at 17-18. But Pizarro claims that the failure to state the duration and frequency for restroom breaks prevents the court from engaging in meaningful review of the RFC determination.
The medical record reveals that Pizarro experienced some improvement in her IBS with constipation through conservative measures. Tr. at 18, 19. Although it appeared adequately managed, ALJ Booth determined that work with access to a restroom would address this severe impairment. Tr. at 20.
This court has held that an RFC limitation allowing for ready access to a bathroom, with no finding on the extent of bathroom breaks, warrants remand. Taylor v. Astrue, No. 7:11-CV-162-FL, 2012 WL 3637254, at *11 (E.D. N.C. Aug. 1, 2012), adopted by 2012 WL 3636923 (Aug. 22, 2012). In Taylor, the court noted that the ALJ identified neither the frequency nor the duration of the claimant's need for bathroom breaks, and the vocational expert offered no testimony on whether ready access to a bathroom would affect the claimant's ability to work. Id. Given this unresolved issue, the court could not conclude that substantial evidence supported an ALJ's step four finding that a claimant could return to his past work. Id.
The frequency and duration of restroom use may exceed employers' tolerance for time off-task. So the limitation could affect her ability to perform work activities at a competitive level. ALJ Booth erred by making no findings about the frequency and duration of Pizarro's bathroom use. This oversight warrants remand. See Binder v. Colvin, No. 5:12-CV-517-D, 2013 WL 1686306, at * 3 (E.D. N.C. Mar. 21, 2013) 8 (“When an ALJ finds that a claimant has an impairment that requires him to have access to a bathroom, the ALJ should make specific findings concerning the frequency and duration of Plaintiff's bathroom usage.”), adopted by 2013 WL 1694678 (Apr. 18, 2013); Davis v. Comm'r of Soc. Sec., No. 2:10-CV-30, 2011 WL 442118, at *1 (N.D. W.Va. Feb. 2, 2011) (finding error in an ALJ's inclusion in claimant's RFC “a required accommodation of placing claimant close to the bathroom, ” without including in the RFC “specific findings regarding the frequency and duration of plaintiff's need for the bathroom”); Green v. Astrue, No. 3:09-CV-331, 2010 WL 2901765, at *5 (E.D. Tenn. July 2, 2010) (where an ALJ finds a claimant “has an impairment that requires her to have ‘ready access to a bathroom' and the freedom to use it ‘as needed,' an ALJ should make a specific finding concerning the frequency and duration of [the claimant]'s bathroom usage”) (citation omitted).
Because this matter warrants more consideration, the undersigned recommends that the court grant Pizarro's motion on this issue.
E. Veterans Administration Disability Rating
Pizarro claims that ALJ Booth erred in failing to give more weight to a disability finding by the VA. The Acting Commissioner asserts that this finding is due no presumptive weight under the revised Regulations. The undersigned finds the Acting Commissioner's argument unpersuasive.
1. Applicable Standards Prior to 2017
As provided by 20 C.F.R. § 404.1504 and further explained in Social Security Ruling 06- 03p, “a determination made by another agency that [the claimant is] disabled or blind is not binding on” the Social Security Administration. 20 C.F.R. § 404.1504. Rather, “the ultimate responsibility 9 for determining whether an individual is disabled under Social Security law rests with the Commissioner.” SSR 06-03p.
The Fourth Circuit addressed the value of disability findings by other agencies. Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337 (4th Cir. 2012). It noted that while not binding on the SSA, “another agency's disability determination ‘cannot be ignored and must be considered.'” Bird, 699 F.3d at 343. The Fourth Circuit observed that often times the disability assessments of other agencies, such as the VA, serve the same governmental purpose of providing benefits to persons unable to work, evaluate a claimant's ability to perform full-time work, analyze a claimant's functional limitations, and require extensive medical documentation to support the claims. Bird, 699 F.3d at 343. The Fourth Circuit therefore concluded that “in making a disability determination, the SSA must give substantial weight to a VA disability rating[.]” Id. Assigning less weight to another governmental agency's disability determination may be warranted “when the record before the ALJ clearly demonstrates that such a deviation is appropriate.” Id.
In Woods v. Berryhill, the Fourth Circuit ruled that to show that it is “appropriate” under Bird to give less than substantial weight to the disability ratings of an agency other than the SSA, an ALJ must give “persuasive, specific, valid reasons for doing so that are supported by the record.” 888 F.3d 686, 692 (4th Cir. 2018) (internal quotation marks omitted) (extending Bird's holding to state agency disability determinations). An ALJ's failure to adequately explain his attribution of less than substantial weight to VA disability ratings precludes meaningful review and warrants remand of the case for further administrative proceedings. See Woods, 888 F.3d at 692-93 (citing Radford, 734 F.3d at 295).
General differences between VA disability ratings and Social Security disability determinations are not a sufficient basis for discrediting VA disability ratings. Because these 10 differences exist in all cases, allowing an ALJ to discount a VA disability rating for this reason would eviscerate the presumptive standard established in Bird. See Nguyen v. Colvin, No. 5:14-CV-227-D, 2015 WL 5062241, at *6-7 (E.D. N.C. Aug. 10, 2015) (discussing the Commissioner's analysis of an Office of Personnel Management disability rating and noting “the reasons cited by the Commissioner-different rules and different standards-would apply to every case and thus cannot be relied upon to avoid scrutiny of the OPM's decision under Bird's new presumptive standard”), adopted by 2015 WL 5089060 (Aug. 27, 2015).
ALJ Booth noted the VA disability decision. Tr. at 21. He found the differences between VA and SSA disability programs rendered the VA disability decision of limited relevance to his analysis. Id.
Citing the different agency program inquiries and regulations is unpersuasive and conflicts with the Bird holding. See Stanley v. Berryhill, No. 1:17-CV-913, 2019 WL 919355, at *5 (M.D. N.C. Feb. 25, 2019) (holding that the ALJ failed to meet the requirements in Bird where “the ALJ's rationale [for assigning little weight to the VA determination] relies only on the differences between the VA and SSA disability systems, without making any particular findings as to Plaintiff's case”); Smith v. Berryhill, Civ. A. No. CBD-18-0381, 2018 WL 6249692, at *4 (D. Md. Nov. 29, 2018) (finding an ALJ's reasoning that “the standards utilized for other types of disability claims differ from the standards imposed by Social Security statues, regulations, and rules” could not support assigning little weight to a VA's disability determination); Hildreth v. Colvin, No. 1:14-CV-660, 2015 WL 5577430, at *3 (M.D. N.C. Sept. 22, 2015) (“[T]he ALJ's statement that she was ‘not bound by' the VA's disability ratings because the VA's disability standards differed from those of the Social Security Administration . . . disregards Bird's holding to the contrary.”). 11
An ALJ does not rebut the presumption that such an assessment receives substantial weight by pointing out that the VA and SSA disability assessments apply different criteria. Such reasoning would apply to every case in which the record includes a disability decision from the VA. So remarking that the agencies evaluated impairments differently, using different criteria and standards, without further explanation, would not provide a persuasive basis to discount the VA ratings.
Thus, ALJ Booth's proffered reason fails to “clearly demonstrate” that deviation is proper under Bird. While the holding permits an ALJ to assign lesser weight to a VA disability finding, the reason for doing so must be sound. Here, it is not. So the undersigned cannot find that substantial evidence supports ALJ Booth's consideration of this evidence.
2. 2017 Revised Regulations
In his brief discussion of the VA disability decision, ALJ Booth referenced the revised Regulations, effective to claims filed after March 2017. Tr. at 21. He remarked that the SSA need not articulate its consideration of “evidence that is inherently neither valuable nor persuasive[]” such as other agencies' disability findings. Id.; 20 C.F.R. §§ 404.1504, 416.904.
In revising the Regulations, the Administration rescinded SSR 06-03p, a policy directive which had concluded that “evidence of a disability decision by another governmental or nongovernmental agency cannot be ignored and must be considered.” The new rules try to assure the claimant that SSA will still “consider all of the supporting evidence underlying the other governmental agency or nongovernmental entity's decision....” 20 C.F.R. §§ 404.1504, 416.904.
ALJ Booth did not discuss Pizarro's combined 90% VA disability rating. His decision suggests, and the Acting Commissioner's brief confirms, that SSA consider the new regulations to supersede the Fourth Circuit's decision in Bird. But their position is mistaken. 12
The Bird decision did not interpret a prior regulation, alterable by SSA. Rose v. Saul, No. 7:19-CV-91-BO, 2020 WL 4740479, at *3 (E.D. N.C. Aug. 14, 2020). Instead, it followed a line of cases expounding on how an ALJ must enable a district court to conduct a meaningful review. Id. (noting that two governmental agencies performing similar assessments reached opposite conclusions, leaving a hole in the record that prevented judicial review, which Bird remedied).
The Fourth Circuit's later decision in Woods bolsters this finding. 888 F.3d 686 (4th Cir. 2018). The ALJ must give “persuasive, specific, valid reasons” to assign less than substantial weight to another governmental agency's disability determination. Id. at 692. Lacking such explanation, a court “cannot engage in a meaningful review.” Id. at 692-93. And Woods rejected the SSA's position that an ALJ may dispense with examining another agency's disability decision by merely considering the evidence underlying that decision. Id. at 693-94.
Like these Fourth Circuit cases, the undersigned cannot conduct review by engaging in guesswork about whether the VA disability rating deserved substantial weight. Without a discussion of this evidence, and an assignment of substantial weight or explanation why such weight was not appropriate, judicial review is foreclosed.
Because SSA's new Regulations do not affect Bird, an ALJ's failure to analyze a VA disability rating leaves a logical gap in the decision between that agency's finding that a claimant disabled and the SSA's determination that the same person is not disabled. A failure to address this incongruity and provide the requisite explanations precludes meaningful judicial review.
Mindful of the parallel purpose and inquiry of the VA and SSA programs, coupled with the substantial weight presumed due to the VA finding under Bird, the court cannot conclude that substantial evidence supports ALJ Booth's consideration of this evidence. The explanation centers 13 on different standards between the two programs, an insufficient basis to deviate for the presumed weight due to the VA disability determination.
In sum, the lack of sound reasons to deviate from the VA disability finding and decline to afford substantial weight to it warrants reversal. The undersigned thus recommends that the court grant Pizarro's motion on this issue.
III. Conclusion
For these reasons, the undersigned recommends that the court grant Pizarro's Motion for Judgment on the Pleadings (D.E. 18), deny Kijakazi's Motion for Judgment on the Pleadings (D.E. 23), and remand this matter to the Commissioner for further consideration.
The Clerk of Court must serve a copy of this Memorandum and Recommendation (“M&R”) on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals. 14