Opinion
No. 2:19-CV-7-FL
02-04-2020
WILLIAM JESSE RANDALL, Plaintiff/Claimant, v. ANDREW SAUL, Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-21, -27] pursuant to Fed. R. Civ. P. 12(c). Claimant William Jesse Randall ("Claimant") filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of his application for a period of disability and Disability Insurance Benefits ("DIB"). The time for filing responsive briefs has expired, and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Claimant's Motion for Judgment on the Pleadings be allowed, Defendant's Motion for Judgment on the Pleadings be denied, and the matter be remanded to the Commissioner for further proceedings.
I. STATEMENT OF THE CASE
Claimant protectively filed an application for a period of disability and DIB on June 5, 2015, alleging disability beginning July 3, 2014. (R. 19, 211-12). His claim for a period of disability and DIB was denied initially and upon reconsideration. (R. 19, 93-118). A hearing before the Administrative Law Judge ("ALJ") was held on October 3, 2017, at which Claimant, represented by a counsel, and a vocational expert ("VE") appeared and testified. (R. 19, 41-81). On January 5, 2018, the ALJ issued a decision denying Claimant's request for benefits. (R. 16-40). Claimant sought review from the Appeals Council (R. 205-10) and submitted additional evidence (R. 9-12). The Appeals Council found the new evidence did not show a reasonable probability that it would change the outcome of the decision and denied Claimant's request for review on December 10, 2018. (R. 1-8). Claimant then filed a complaint in this court seeking review of the now-final administrative decision.
II. STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act ("Act"), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). "The findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive . . . ." 42 U.S.C. § 405(g). Substantial evidence is "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a "large or considerable amount of evidence," Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is "more than a mere scintilla . . . and somewhat less than a preponderance." Laws, 368 F.2d at 642. "In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the "substantial evidence" inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. § 404.1520 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in "substantial gainful activity," i.e., currently working; and (2) must have a "severe" impairment that (3) meets or exceeds [in severity] the "listings" of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity to (4) perform . . . past work or (5) any other work.Albright v. Comm'r of the SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). "If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps." Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy that the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the "special technique" described in 20 C.F.R. § 404.1520a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. Id. § 404.1520a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the "special technique." Id. § 404.1520a(e)(3).
In this case, Claimant alleges the following errors: (1) the Appeals Council failed to properly consider new evidence; (2) the ALJ failed to find that Claimant's impairments met or equaled Listing 11.02, Epilepsy; (3) the ALJ found Claimant is capable of performing a reduced range of light work; (4) the ALJ failed to properly assess Claimant's symptoms and credibility; and (5) the ALJ failed to accurately set forth all of Claimant's physical and mental limitations in the hypothetical to the VE. Pl.'s Mem. [DE-22] at 25-35.
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Claimant "not disabled" as defined in the Act. At step one, the ALJ found Claimant had not engaged in substantial gainful employment since July 3, 2014, the alleged onset date. (R. 21). Next, the ALJ determined Claimant had the following severe impairments: degenerative arthritis in the right shoulder with limited range of motion and pain; epilepsy; and back pain. (R. 21-22). The ALJ also found that Claimant's neurocognitive disorder was non-severe. (R. 21). At step three, the ALJ concluded these impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 22-23). Applying the technique prescribed by the regulations, the ALJ found that Claimant's mental impairments have resulted in mild limitations in understanding, remembering, or applying information; concentrating, persisting, or maintaining pace; and adapting or managing oneself, and no limitation in interacting with others. (R. 21-22).
Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding Claimant had the ability to perform light work with the following limitations:
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If an individual can perform light work, he or she can also perform sedentary work, unless there are additional limiting factors such as the loss of fine dexterity or the inability to sit for long periods of time. 20 C.F.R. § 404.1567(b).
He can less than occasionally use the upper extremities to engage in overhead lifting, reaching, pulling, and pushing bilaterally and can otherwise frequently use the upper extremities to lift, reach, pull, and push in all other directions. He can frequently use the upper extremities to handle, finger, feel, and grasp bilaterally. He can occasionally crawl, kneel, and crouch. He can occasionally use the lower extremities to operate foot and leg controls. He cannot climb stairs, ramps, ladders, ropes, or scaffolds. He can have occasional exposure to temperature extremes. He cannot work around dangerous, moving mechanical parts and unprotected heights. He cannot drive an automobile. He cannot perform occupations requiring him to swim. He possesses the commonsense ability to understand and complete detailed but uninvolved oral and written instructions in two-hour intervals with a reasoning level of "three". He can have occasional direct interaction with the general public and frequently work in teams and with coworkers and supervisors. He can perform low stress occupations that do not require him to complete a fixed number of production quotas on a fixed timeline basis and/or to perform fast-paced assembly line work.(R. 23-35). In making this assessment, the ALJ found Claimant's statements about the intensity, persistence, and limiting effects of his symptoms were not entirely consistent with the medical and other evidence in the record. (R. 24).
At step four, the ALJ concluded Claimant did not have the RFC to perform the requirements of his past relevant work. (R. 35). Nonetheless, at step five, upon considering Claimant's age, education, work experience, and RFC, the ALJ determined Claimant was capable of adjusting to the demands of other employment opportunities that exist in significant numbers in the national economy through the date last insured. (R. 35-36).
V. DISCUSSION
A. The Appeals Council's Consideration of the New Evidence
Claimant argues that the Appeals Council erred by (1) failing to give considerable weight to a Medicaid decision concluding Claimant's seizure disorder equaled Listing 11.02, and (2) failing to explain its rationale. Pl.'s Mem. [DE-22] at 25-27. The Appeals Council will review a case if the claimant submits additional evidence that is "new, material, and relates to the period on or before the date of the hearing decision, and there is a reasonable probability that the additional evidence would change the outcome of the decision." 20 C.F.R. § 404.970(a)(5); Wilkins v. Sec'y, Dep't of Health & Human Servs., 953 F.2d 93, 95 (4th Cir. 1991). The claimant must also show good cause for not timely submitting the evidence to the ALJ. Id. § 404.970(b); Hawks v. Berryhill, No. 1:17-CV-1021, 2018 WL 6728037, at *4 (M.D.N.C. Dec. 21, 2018). "Evidence is new if it is not duplicative or cumulative, and it is material if there is a 'reasonable possibility that the new evidence would have changed the outcome of the case.'" Stanley v. Berryhill, No. 7:17-CV-207-FL, 2018 WL 6730552, at *7 (E.D.N.C. Nov. 13, 2018) (quoting Wilkins, 953 F.2d at 96), adopted by 2018 WL 6729787 (E.D.N.C. Dec. 21, 2018). New and material evidence "need not have existed during [the relevant] period, but rather must be considered if it has any bearing upon whether the claimant was disabled during the relevant period of time." Outlaw v. Colvin, No. 5:11-CV-647-FL, 2013 WL 1309372, at * 2 (E.D.N.C. Mar. 28, 2013) (citing Wooldridge v. Bowen, 816 F.2d 157, 160 (4th Cir. 1987)).
Claimant submitted to the Appeals Council new evidence in the form of a May 21, 2018 DHHS decision (the "Medicaid decision") reversing a prior denial of Medicaid benefits and finding Claimant's impairment equaled Listing 11.02. (R. 9-12). The Appeals Council found the Medicaid decision did not show a reasonable probability that it would change the outcome of the ALJ's decision and did not exhibit it. (R. 2).
The Appeals Council denied Claimant's request for review, (R. 1), and, as a result, was not required to make findings of fact or explain its reasoning. See Sutton v. Berryhill, No. 5:17-CV-48-FL, 2017 WL 7053966, at *2 (E.D.N.C. Dec. 19, 2017) (when a claimant challenged the Appeals Council's failure to consider additional evidence, the court held, "Here, the Appeals Council did not grant review, and therefore, it was not required to explain its reasoning for determining that the evidence submitted after the ALJ's decision did not warrant changing the ALJ's decision."), adopted by 2018 WL 576847 (E.D.N.C. Jan. 26, 2018). "Only if the Appeals Council grants a request for review and issues its own decision on the merits is the Appeals Council required to make findings of fact and explain its reasoning." Meyer v. Astrue, 662 F.3d 700, 705 (4th Cir. 2011) (citing 20 C.F.R. §§ 404.979, 404.1527(f)(3)). Although the Appeals Council was not required to explain its reasoning, the court still must consider whether the Medicaid decision was new, material, and relates to the period on or before the date of the ALJ's decision and whether there is a reasonable probability that the additional evidence would change the outcome of the decision. Wilkins, 953 F.2d at 95; see also Coleman v. Berryhill, No. 6:17-CV-2613-TMC, 2019 WL 850902, at *3 (D.S.C. Feb. 22, 2019); Kiro v. Berryhill, No. CV 18-89 SCY, 2019 WL 1331903, at *5 (D.N.M. Mar. 25, 2019) ("Whether evidence qualifies for consideration by the Appeals Council is a question of law subject to our de novo review."). If so, the Appeals Council erred in failing to consider the Medicaid decision, and the matter must be remanded.
In the Medicaid decision, the DHHS state hearing officer made findings of fact, in relevant part, as follows:
Appellant has a history of seizures which have been intractable despite treatment with a vagus nerve stimulation (VNS) and medications which equals the intent of listing 11.02. Appellant was seen for neurological follow up in September 2015. He was tolerating his medications but was complaining of more memory problems. Although he was stable on his medications he continued to have breakthrough seizures. He had two in July but none in [A]ugust. He had not used the magnet since June. He continued to be on three medications in addition to the VNS. A fourth medication was added. Appellant attended a psychological consultative examination in November 2015 which showed a mild neurocognitive disorder due to history of intractable generalized epilepsy. At neurological follow up in August 2016 he reported only one seizure in the past four months after the most recent medication adjustment. Appellant was seen by neurology in March 2018. He reported that he lost his insurance and had only been able to get one of his
medications. He was living on his own after his long-term partner died the previous year. He was not able to keep a job because his seizures had worsened and he was having seizures almost daily. He reported shoulder and hip pain due to seizures and injury. He was using the VNS but said it did not help much. He was restarted on three additional medications. Appellant presented to the emergency department in April 2018 with a flurry of seizures and was admitted. He was only able to afford one of the prescribed anticonvulsants. He was prescribed additional medications.(R. 10). The hearing officer concluded that Claimant's impairments equaled Listing 11.02, which directs a finding of disabled. (R. 11).
The hearing officer's findings regarding Claimant's history of seizures is largely consistent with that of the ALJ up until the time of the ALJ's January 5, 2018 decision. (R. 10, 26-31). However, the hearing officer also considered evidence post-dating the ALJ's decision. Treatment notes from March and April 2018 demonstrated that Claimant's seizures worsened when he lost his insurance and was able to afford only one of his medications, and he could not keep a job due to having seizures almost daily. (R. 10). Although not apparent from the Medicaid decision itself, Claimant testified at the administrative hearing before the ALJ on October 3, 2017, that he had not had insurance, treatment from his neurologist, or certain medication due to cost since the prior year. (R. 54). Therefore, the Medicaid decision informs of Claimant's condition during the relevant time period before the ALJ's decision.
The fact that the Medicaid decision itself post-dates the ALJ's decision does not mean it is automatically irrelevant. "Evidence may relate back to the period on or before the ALJ's decision even if it postdates the decision." Shuman v. Berryhill, No. 3:16-CV-62, 2017 WL 3476972, at *3 (N.D.W. Va. Aug. 14, 2017) (citation omitted). The Medicaid decision indicates Claimant's condition deteriorated after he lost his insurance, which occurred during the relevant period, to the point that his seizure disorder equaled Listing 11.02. (R. 10). The Medicaid decision corroborates Claimant's testimony that the frequency of his seizures increased after he lost his insurance and was unable to afford treatment and certain medication. (R. 54). The Medicaid decision is new, material, and relates back to the relevant period, and the court cannot agree with the Appeals Council's conclusion that there was no reasonable probability it would change the outcome of the ALJ's decision. See Briggs v. Berryhill, No. 4:16-CV-240-FL, 2017 WL 4230584, at *7 (E.D.N.C. Aug. 30, 2017) (finding a Medicaid decision post-dating the ALJ's decision was "new, relevant to the period at issue in the ALJ's decision, and material such that there is a 'reasonable possibility that the new evidence would have changed the outcome of the case.'" (quoting Wilkins, 953 F.2d at 96)), adopted by 2017 WL 4226040 (E.D.N.C. Sept. 22, 2017); Perry v. Berryhill, No. 2:16-CV-00058-D, 2017 WL 3044573, at *3 (E.D.N.C. June 28, 2017) (finding the Medicaid approval was relevant in time because it overlapped the period of time at issue before the ALJ), adopted by 2017 WL 3038222 (July 17, 2017); Gentry v. Colvin, No. 2:13-CV-66-FL, 2015 WL 1456131, at *3 (E.D.N.C. Mar. 30, 2015) (concluding the date of the Medicaid decision is not determinative and the decision was relevant because it concerned, in part, the time period beginning with the effective date, which was two months prior to the ALJ's decision). Accordingly, it is recommended that the matter be remanded for consideration of the Medicaid decision.
B. Listing 11.02, Epilepsy
Claimant argues his history of seizures meets or equals the severity required by Listing 11.02. Pl.'s Mem. [DE-22] at 27-29. To show disability under the listings, a claimant may present evidence either that the impairment meets or medically equals a listed impairment. Kellough v. Heckler, 785 F.2d 1147, 1152 (4th Cir. 1986); 20 C.F.R. §§ 404.1525, 404.1526. Disability is conclusively established if a claimant's impairments meet all the criteria of a listing or are medically equivalent to a listing. 20 C.F.R. §§ 404.1520(d), 404.1525(c)(3); S.S.R. 17-2p, 2017 WL 3928306, at *2 (Mar. 27, 2017). In order to determine whether a medical impairment equals a listing, the ALJ is bound to "consider all evidence in [claimant's] case record about [an] impairment(s) and its effects on [claimant] that is relevant to this finding. . . . [The ALJ] also consider[s] the opinion given by one or more medical or psychological consultants designated by the Commissioner." 20 C.F.R. § 404.1526(c). "For a claimant to qualify for benefits by showing that his . . . combination of impairments[] is 'equivalent' to a listed impairment, he must present medical findings equal in severity to all the criteria for the one most similar listed impairment." Sullivan v. Zebley , 493 U.S. 521, 531 (1990) (citation omitted).
The Fourth Circuit has found error where there is evidence in the record that would support a finding that a claimant's impairments meet a listing but the ALJ fails to provide a full explanation in support of a contrary determination. See Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013) (concluding the ALJ's "insufficient legal analysis makes it impossible for a reviewing court to evaluate whether substantial evidence supports the ALJ's findings") (citing Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986)). Where there are inconsistencies in the record and the ALJ fails to conduct the requisite analysis, the court cannot conduct a meaningful review. See Fox v. Colvin, 632 F. App'x 750, 755 (4th Cir. 2015) (remanding where the ALJ failed to explain the claimant's failure to meet a listing and there was contradictory evidence in the record (citing Mascio v. Colvin, 780 F.3d 632, 638 (4th Cir. 2015); Radford, 734 F.3d at 296)).
The ALJ determined Claimant's seizure disorder did not meet or equal Listing 11.02 or 11.03, explaining as follows:
The claimant has a seizure disorder but does not have episodes of convulsive epilepsy (grand mal or psychomotor), documented by detailed description of a typical seizure pattern, including all associated phenomena, occurring more frequently than once a month, in spite of at least three months of prescribed treatment, with daytime episodes (loss of consciousness and convulsive seizures) or nocturnal episodes manifesting residuals which interfere significantly with activity during the day, as required by Listing 11.02; or episodes of nonconvulsive
epilepsy (petit mal, psychomotor, or focal) documented by detailed description of a typical seizure pattern including all associated phenomena, occurring more frequently than once weekly in spite of at least three months of prescribed treatment, with alteration of awareness or loss of consciousness and transient postictal manifestations of unconventional behavior or significant interference with activity during the day, as required by Listing 11.03.(R. 22). The ALJ erred at step three because he applied an outdated version of Listings 11.02 and 11.03.
Prior to September 29, 2016, there were two listings for epilepsy: Listing 11.02 related to convulsive epilepsy (grand mal or psychomotor), and Listing 11.03 related to nonconvulsive epilepsy (petit mal, psychomotor, or focal). 20 C.F.R. pt. 404, subpt. P, app. 1, §§ 11.02, 11.03 (effective May 24, 2016 to Sept. 28, 2016). Listing 11.02 required
convulsive epilepsy, (grand mal or psychomotor), documented by detailed description of a typical seizure pattern, including all associated phenomena; occurring more frequently than once a month in spite of at least 3 months of prescribed treatment.Id. § 11.02. Listing 11.03 required
A. Daytime episodes (loss of consciousness and convulsive seizures) or
B. Nocturnal episodes manifesting residuals which interfere significantly with activity during the day.
nonconvulsive epilepsy (petit mal, psychomotor, or focal), documented by detailed description of a typical seizure pattern, including all associated phenomena; occurring more frequently than once weekly in spite of at least 3 months of prescribed treatment. With alteration of awareness or loss of consciousness and transient postictal manifestations of unconventional behavior or significant interference with activity during the day.Id. § 11.03. Effective, September 29, 2016, Listing 11.03 was removed and combined with Listing 11.02, and the revised Listing 11.02 applied to claims pending on or after the effective date. Hill v. Berryhill, No. CV 6:17-3198-BHH, 2019 WL 1232634, at *3 (D.S.C. Mar. 18, 2019) (citing 81 Fed. Reg. 43048-01, 2016 WL 3551949 (July 1, 2016)).
To satisfy the revised Listing 11.02, in effect when the ALJ rendered the decision in this case, a claimant must show epilepsy documented by a detailed description of a typical seizure and characterized by A, B, C, or D:
A. Generalized tonic-clonic seizures (see 11.00H1a), occurring at least once a month for at least 3 consecutive months (see 11.00H4) despite adherence to prescribed treatment (see 11.00C); or
B. Dyscognitive seizures (see 11.00H1b), occurring at least once a week for at least 3 consecutive months (see 11.00H4) despite adherence to prescribed treatment (see 11.00C); or
C. Generalized tonic-clonic seizures (see 11.00H1a), occurring at least once every 2 months for at least 4 consecutive months (see 11.00H4) despite adherence to prescribed treatment (see 11.00C); and a marked limitation in one of the following:
1. Physical functioning (see 11.00G3a); or
2. Understanding, remembering, or applying information (see 11.00G3b(i)); or
3. Interacting with others (see 11.00G3b(ii)); or
4. Concentrating, persisting, or maintaining pace (see 11.00G3b(iii)); or
5. Adapting or managing oneself (see 11.00G3b(iv)); or
D. Dyscognitive seizures (see 11.00H1b), occurring at least once every 2 weeks for at least 3 consecutive months (see 11.00H4) despite adherence to prescribed treatment (see 11.00C); and a marked limitation in one of the following:
20 C.F.R. pt. 404, subpt. P, app. 1, §§ 11.02 (effective Sept. 29, 2016). A tonic-clonic seizure is "characterized by loss of consciousness accompanied by a tonic phase (sudden muscle tensing causing the person to lose postural control) followed by a clonic phase (rapid cycles of muscle contraction and relaxation, also called convulsions)." Id. § 11.00H1a. A dyscognitive seizure is "characterized by alteration of consciousness without convulsions or loss of muscle control." Id. § 11.00H1b. Other courts have recognized that the outdated Listings 11.02 and 11.03 and revised Listing 11.02, while "similar, [] are not entirely the same, and because the ALJ did not apply the correct law, it would be inappropriate for the Court to do so in the first instance, as it is not this Court's role to engage in fact-finding, to weigh the evidence, or to otherwise substitute its judgment for that of the Commissioner." Hill, 2019 WL 1232634, at *4 (remanding the case for further consideration where the court "cannot determine whether substantial evidence supports the ALJ's step three findings for the simple reason that the ALJ did not apply the revised Listing 11.02, which was in effect prior to the ALJ's decision"); see also Brown v. Berryhill, No. CV 6:17-3039-DCC-KFM, 2018 WL 6928737, at *11 (D.S.C. Dec. 11, 2018) ("Compared to the previous version of the listing, revised Listing 11.02 'lowers the claimant's burden, reducing the necessary amount of seizures from more than one per month (i.e. at least two per month) to one per month.'") (quoting Coston v. Comm'r of Soc. Sec., C.A. No. 16-10232, 2017 WL 522837, at *10 (E.D. Mich. Jan. 20, 2017)).1. Physical functioning (see 11.00G3a); or
2. Understanding, remembering, or applying information (see 11.00G3b(i)); or
3. Interacting with others (see 11.00G3b(ii)); or
4. Concentrating, persisting, or maintaining pace (see 11.00G3b(iii)); or
5. Adapting or managing oneself (see 11.00G3b(iv)).
Here, the ALJ's discussion as to whether Claimant's seizure disorder met a listing consisted of reciting elements of the outdated listings and summarily concluding they were not met. (R. 22). Based on the evidence of record regarding the frequency of Claimant's seizures, discussed in detail below in relation to the ALJ's RFC determination, it would be improper for the court to conduct an analysis in the first instance as to whether Claimant's seizure disorder meets or equals the revised Listing 11.02 applicable to this claim. Radford, 734 F.3d at 296. Accordingly, it is recommended that the matter be remanded for the ALJ to consider whether Claimant's seizure impairment meets or equals the applicable version of Listing 11.02.
C. The RFC Determination
Claimant argues the frequency and duration of his worsening seizures prevent him from performing a reduced range of light work as determined by the ALJ. Pl.'s Mem. [DE-22] at 29-32. Claimant also argues that the ALJ failed to properly assess his symptoms and credibility in determining the RFC. Id. at 32-34.
An individual's RFC is the capacity he possesses despite the limitations caused by physical or mental impairments. 20 C.F.R. § 404.1545(a)(1); see also S.S.R. 96-8p, 1996 WL 374184, at *1 (July 2, 1996). "[T]he 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." Mascio, 780 F.3d at 636 (quoting S.S.R. 96-8p). The RFC is based on all relevant medical and other evidence in the record and may include a claimant's own description of limitations arising from alleged symptoms. 20 C.F.R. § 404.1545(a)(3); see also S.S.R. 96-8p, 1996 WL 374184, at *5. Where a claimant has numerous impairments, including non-severe impairments, the ALJ must consider their cumulative effect in making a disability determination. 42 U.S.C. § 423(d)(2)(B); see Hines v. Brown, 872 F.2d 56, 59 (4th Cir. 1989) ("[I]n determining whether an individual's impairments are of sufficient severity to prohibit basic work related activities, an ALJ must consider the combined effect of a claimant's impairments.") (citations omitted). The ALJ has sufficiently considered the combined effects of a claimant's impairments when each is separately discussed by the ALJ and the ALJ also discusses a claimant's complaints and activities. Baldwin v. Barnhart, 444 F. Supp. 2d 457, 465 (E.D.N.C. 2005) (citations omitted). The RFC assessment "must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence" and also "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)." S.S.R. 96-8p, 1996 WL 374184, at *7; see also Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000) (observing that the ALJ "must build an accurate and logical bridge from the evidence to his conclusion").
When assessing a claimant's RFC, it is within the province of the ALJ to determine whether a claimant's statements are consistent with the medical and other evidence. See Shively v. Heckler, 739 F.2d 987, 989-90 (4th Cir. 1984) ("Because he had the opportunity to observe the demeanor and to determine the credibility of the claimant, the ALJ's observations concerning these questions are to be given great weight.") (citation omitted). Federal regulation 20 C.F.R. § 404.1529(a) provides the authoritative standard for the evaluation of subjective complaints of pain and symptomology, whereby "the determination of whether a person is disabled by pain or other symptoms is a two-step process." Craig, 76 F.3d at 593-94. First, the ALJ must objectively determine whether the claimant has medically documented impairments that could cause his or her alleged symptoms. S.S.R. 16-3p, 2016 WL 1119029, at *3 (Mar. 16, 2016); Hines v. Barnhart, 453 F.3d 559, 564 (4th Cir. 2006). If the ALJ makes that determination, he must then evaluate "the intensity and persistence of the claimant's pain[,] and the extent to which it affects her ability to work," Craig, 76 F.3d at 595, and whether the claimant's statements are supported by the objective medical record. S.S.R. 16-3p, 2016 WL 1119029, at *4; Hines, 453 F.3d at 564-65.
Objective medical evidence may not capture the full extent of a claimant's symptoms, so where the objective medical evidence and subjective complaints are at odds, the ALJ should consider all factors concerning the "intensity, persistence and limiting effects" of the claimant's symptoms. S.S.R. 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. § 404.1529(c)(3) (showing a complete list of factors). The ALJ may not discredit a claimant solely because his or her subjective complaints are not supported by objective medical evidence, Craig, 76 F.3d at 595-96, but neither is the ALJ required to accept the claimant's statements at face value; rather, the ALJ must "evaluate whether the statements are consistent with objective medical evidence and the other evidence." S.S.R. 16-3p, 2016 WL 1119029, at *6; see Taylor v. Astrue, No. 5:10-CV-263-FL, 2011 WL. 1599679, at *4-8 (E.D.N.C. Mar. 23, 2011), adopted by 2011 WL 1599667 (E.D.N.C. Apr. 26, 2011).
The ALJ summarized Claimant's testimony regarding his seizures as follows:
[Claimant] indicated his insurance doubled and he could not afford it, and Dr. Sheth stopped treating him. He noted Dr. Sheth told him not to drive, work with heavy machinery, or swim due to epilepsy. He explained he kept a book of his seizures. He said sometimes he went to the hospital. He stated he had a seizure one to five times a month and did not go to the hospital every time. He reported the hospital did not do anything for him. He indicated he is taking two of the medications he was prescribed. He said he is out of one medication. He stated he broke a screw in his right shoulder having grand mal seizures. . . .(R. 24). The ALJ concluded that Claimant's statements about the intensity, persistence, and limiting effects of his symptoms were inconsistent with the medical and other evidence of record "because the claimant's seizure disorder is stable with only intermittent breakthrough seizures . . . ." (R. 24).
The claimant testified he gets fired when his bosses see him have a seizure. He said a seizure last[s] five to 10 minutes. He stated he had one Saturday and chewed his tongue. He reported he has a hard time speaking. He indicated recovery time is from three to five hours to three to four days, depending on how bad he hurts himself. He noted a month ago, he broke a rib, and it still hurts. He said he still hurts from Saturday's seizure. He stated he did not know he has a seizure until he got up. He reported he does not remember his seizures and wakes up hours later. He said he has a problem with his memory.
The ALJ went on to discuss Claimant's epilepsy and treatment history for seizures. (R. 26-31). The ALJ noted that, prior to the alleged onset date, Claimant had a history of intractable generalized epilepsy, but on April 4, 2013, he was stable on a combination of three medications and had not had any breakthrough seizures since September 2012. (R. 26, 416-17). Claimant was treated in the emergency department on April 14, 2013 for a seizure that lasted two to five minutes with loss of consciousness and was treated for facial wounds. (R. 26, 309). Claimant reported his last seizure was two months prior, although his neurologist had indicated his last seizure was in September 2012. (R. 311, 416). On June 18, 2013, Claimant's neurologist continued his medications where Claimant's dosage had been increased in April and he reported no additional seizures after the April 14 incident. (R. 27, 414-15). Claimant's next reported seizure occurred on May 14, 2014, he had used his magnet to stop one or two other possible seizures, and his neurologist characterized his seizures as stable and well controlled. (R. 27, 410-11).
After the alleged onset date, on July 31, 2014, Claimant was treated in the emergency department after he was riding a moped without a helmet and was found unresponsive on the ground with a bottle of alcohol nearby. (R. 27, 669). Claimant may have had a seizure but was also combative and appeared intoxicated. Id. Claimant was treated for a facial fracture and laceration. (R. 27, 676). Claimant was treated on November 23, 2014 by EMS for confusion and disorientation after having two consecutive grand mal seizures, but he refused transport. (R. 27-28, 502). On January 15, 2015, Claimant's neurologist reported Claimant was stable on his medications, he had two breakthrough seizures since his last visit that could be triggered from lack of sleep due to pain, and he was started on a new medication. (R. 28, 464-65). Claimant saw his neurologist thereafter every two to four months through April 14, 2016, and was generally noted to be stable on his medications while still experiencing two to three breakthrough seizures between visits, and his medications were adjusted at each visit. (R. 28-30, 460-63, 511-18). In the interim, EMS treated Claimant on February 8, 2016 after he again had a seizure while driving his moped. (R. 30, 695). On August 11, 2016, it was noted that Claimant's seizure frequency was improved since starting a new medication, and he had only one seizure in the last four months. (R. 30, 508-10). Claimant was treated at urgent care on August 29, 2016 for a migraine lasting all day after having a seizure and stated he had been having migraines with seizures with increasing severity. (R.30-31, 538). Finally, Claimant was seen on May 6, 2017 at the emergency department after he yet again had a seizure while riding his moped and crashed, and the doctor noted Claimant was previously told not to drive. (R. 31, 714, 717).
The ALJ explained how he considered and accounted for Claimant's seizures in the RFC as follows:
Regarding the claimant's seizures, he has a VNS and is on a combination of medications to control his seizures. Dr. Sheth has stated that his seizure disorder is stable, but he continued to have intermittent breakthrough seizures, approximately two per month, though he only had one seizure between April 14, 2016, and August 11, 2016. Dr. Sheth has noted normal physical exams (Ex. 5F, 9F). The claimant has injured himself twice due to having a seizure while driving (Ex. 11F, 12F), which is against Dr. Sheth's recommendations (Ex. 5F, 9F). I have provided environmental limitations with regard to his seizures, which seemingly would sufficiently address safety concerns and not be work restrictive.(R. 33). The ALJ imposed environmental limitations of no climbing stairs, ramps, ladders, ropes, or scaffolds, only occasional exposure to temperature extremes, no working around dangerous, moving mechanical parts and unprotected heights, no driving an automobile, and no performing occupations requiring him to swim. (R. 23, 33-34).
At the October 3, 2017 hearing, Claimant testified he stopped epilepsy treatment with Dr. Sheth sometime in 2016 because his insurance almost doubled to $850.00 per month, and he could no longer afford it. (R. 54). Claimant also testified he kept a seizure log in which he documented having seizures anywhere from one to five times per month from the period of February 12, 2015 through September 2017. (R. 58). Claimant explained that he did not go to the hospital every time he had a seizure because he did not receive any treatment at the hospital for his seizures, and for the last year he had no insurance. (R. 58-59). Claimant had stopped taking one of his seizure medications because it was too expensive but was continuing to take two other medications. (R. 59). Claimant testified his seizures typically last five to ten minutes and can take anywhere from a few hours to a few days to recover depending on how badly he injures himself during the seizure. (R. 63-64). Claimant believed that when he was on his medications his seizures did not get worse or better but that his seizures were getting worse at that time, possibly because he did not have all the medications he was supposed to take. (R. 69).
For example, Claimant broke a rib during a seizure about a month prior to the hearing. (R. 64).
Claimant's testimony regarding his loss of insurance, lack of treatment, and inability to afford certain medication to control his seizures corresponds to his increased frequency of seizures, appears unrefuted in the record, and is supported by the lack of treatment notes from his neurologist in late 2016 and 2017. (R. 24). In discrediting Claimant's testimony and determining the RFC, the ALJ focused on the fact that, after several months of medication adjustments, Claimant's seizures were controlled and limited in frequency as of August 2016, (R. 24, 33), but failed to address Claimant's increased frequency in seizures after he lost his insurance and was unable to afford continued treatment with his neurologist and certain medication during the latter part of 2016 and throughout 2017. See Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017) ("An ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding.") (citation omitted). The ALJ cannot discredit a Claimant's testimony without building "an accurate and logical bridge from the evidence to his conclusion," Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting Clifford, 227 F.3d at 872), and the ALJ did not explain why he rejected Claimant's testimony regarding the increase in frequency of seizures after he lost his insurance. Furthermore, the ALJ is required to consider a claimant's inability to afford treatment, but he failed to do so here. See Gordon v. Schweiker, 725 F.2d 231, 237 (4th Cir. 1984) ("It flies in the face of patent purposes of the SSA to deny benefits to someone because he is too poor to obtain medical treatment that may help him"). Accordingly, it is recommended that this matter be remanded for the ALJ to further consider Claimant's seizure disorder, including the increase in frequency of his seizures after the loss of his insurance, treatment, and certain medication due to affordability, in formulating the RFC.
D. The ALJ's Step Five Determination
Claimant contends the ALJ failed to set forth all of Claimant's physical and mental limitations in the hypothetical to the VE. Pl.'s Mem. [DE-22] at 34-35. The hypothetical to the VE expressed the limitations the ALJ found appropriate in the RFC determination. However, because remand is recommended for further consideration of the RFC, which could impact the hypothetical to the VE, it is also recommended that the ALJ reconsider his hypothetical to the VE as necessary. See Jones v. Astrue, No. 5:11-CV-206-FL, 2012 WL 3580482, at *8 (E.D.N.C. Apr. 19, 2012) ("Because this court finds that remand on the issue of the treating physician's opinion will affect the remaining issues raised by Claimant, it does not address those arguments."), adopted by 2012 WL 3580054 (E.D.N.C. Aug. 17, 2012).
VI. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Claimant's Motion for Judgment on the Pleadings [DE-21] be ALLOWED, Defendant's Motion for Judgment on the Pleadings [DE- 27] be DENIED, and the matter be remanded for further consideration.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until February 18, 2020 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C. Any response to objections shall be filed by within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985).
Submitted, the 4 day of February, 2020.
/s/_________
Robert B. Jones, Jr.
United States Magistrate Judge