Opinion
5:20-CV-00204-D
07-31-2021
Ceasar Roberts, Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social Security Defendant.
MEMORANDUM & RECOMMENDATION
Robert T. Numbers, II United States Magistrate Judge
Plaintiff Ceasar Roberts challenges Administrative Law Judge (“ALJ”) Tammy Georgian's denial of his application for social security income. Roberts claims that ALJ Georgian erred in (1) weighing his disability rating from the Department of Veterans Affairs (“VA”) and (2) determining his residual functional capacity (“RFC”). Both Roberts and Defendant Kilolo Kijakazi, Acting Commissioner of Social Security, have moved for a judgment on the pleadings in their favor. D.E. 17, 20.
After reviewing the parties' arguments, the court has determined that ALJ Georgian erred in her determination. ALJ Georgian failed to evaluate Roberts's VA disability rating. And she did not adequately explain why she excluded Roberts's use of a cane from the RFC. So the undersigned recommends that the court grant Roberts's motion, deny the Acting Commissioner's motion, and remand this matter to the Acting Commissioner for further consideration.
The court has referred this matter to the undersigned for entry of a Memorandum and Recommendation. 28 U.S.C. § 636(b).
I. Background
In May 2018, Roberts applied for disability benefits alleging a disability that began in August 2016. After the Social Security Administration denied his claim at the initial level and upon reconsideration, Roberts appeared before ALJ Georgian for a hearing to determine whether he was entitled to benefits. ALJ Georgian determined that Roberts had no right to benefits because he was not disabled. Tr. at 17-30.
ALJ Georgian found that Roberts's chronic pain syndrome, post traumatic stress disorder (“PTSD”), inflammatory arthritis, and degenerative joint disease of the bilateral knees were severe impairments. Tr. at 19. ALJ Georgian also found that Roberts's impairments, either alone or in combination, did not meet or equal a Listing impairment. Tr. at 20.
ALJ Georgian then determined that Roberts had the residual functional capacity (“RFC”) to perform light work with other limitations. Tr. at 23. He can occasionally climb, kneel, crouch, and crawl, and occasionally reach overhead with his right upper extremity. Id. Roberts can perform simple and routine tasks, which are defined as jobs having a maximum specialized vocational preparation of two and reasoning level of three. Id. He can sustain these activities for two-hour periods. Id. And Roberts can have occasional, superficial contact with coworkers and the public. Id.
ALJ Georgian concluded that Roberts could not perform his past work as a shipping/receiving supervisor or shipping/receiving clerk. Tr. at 28. But considering his age, education, work experience, and RFC, ALJ Georgian found that jobs existed in significant numbers in the national economy that Roberts could perform. Tr. at 29. These include marker, cleaner/housekeeper, and router. Id. Thus, ALJ Georgian found that Roberts was not disabled. Tr. at 29-30.
After unsuccessfully seeking review by the Appeals Council, Roberts began this action in May 2020. D.E. 1.
II. Analysis
A. Standard for Review of the Acting Commissioner's Final Decision
When a social security claimant appeals a final decision of the Acting Commissioner, the district court's review is limited to determining whether, based on the entire administrative record, there is substantial evidence to support the Acting 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 Acting 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 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 is equivalent to 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
Treatment records from August 2016 note Roberts's diagnoses of anxiety, depression, and PTSD. Tr. at 25. Symptoms included anxiety in traffic and crowds, irritability, nightmares, forgetfulness, and trouble focusing. Id. Medications stabilized Roberts's symptoms. Id. The results of a mental status examination contained generally normal findings. Id. Three months later, Roberts reported that he was doing well, and his symptoms improved with medication. Id.
Despite reporting memory trouble, an April 2018 record noted no obvious memory deficits. Id. Roberts denied feelings of hopelessness. Id. One month later, he had a depressed mood but appropriate affect and normal concentration and memory. Id.
Roberts reported decreased nightmares with medication the next month. Id. But he continued to experience hypervigilance and avoided crowds and bridges. Id. He again claimed forgetfulness, poor memory, and PTSD later that month. Id. Although he had a depressed mood, other mental status examination findings were generally unremarkable. Id.
The next month, providers noted similar findings. Tr. at 26. Testing showed Roberts had difficulty with memory and attention. Id. Later that month, Roberts reported that he was doing well. Id.
A September 2018 MRI revealed mild cerebral microvascular disease. Id. Providers found Roberts's poor memory to be multifactorial, with poor sleep, PTSD, and lack of activity as possible causes. Id.
In March 2019, Roberts denied depression and reported his mood had improved with medication. Id. One month later, his attention and concentration were within normal limits, and other mental status examination findings were unremarkable. Id.
The next month, Roberts was doing fairly well, with intermittent anxiety and irritability. Id. Although his PTSD symptoms limited him, Roberts slept well. Id. Medication and therapy helped his symptoms. Id. Dr. Shang Joong Lee concluded that Roberts's PTSD symptoms prevented him from working. Id. That summer, Roberts participated in an eight-week therapy course to treat his anger and PTSD. Id.
Roberts also has a history of physical impairments. Imaging from January 2017 revealed mild degenerative changes in his bilateral knees. Id. The next year, he reported back, elbow, and knee pain as well as trouble sleeping. Tr. at 26-27. He had no difficulty functioning at work or performing activities of daily living. Id. An examination found reduced range of motion but normal knee joints with no swelling and normal gait. Tr. at 27.
In August 2018, providers assessed inflammatory polyarthropathy, although Roberts did not complain of knee pain. Id. Four months later, Roberts reported pain in his back, shoulder, and knees, with difficulty reaching overhead. Id.
In June 2019, Roberts noted that medications controlled his pain, but his joint pain increased with extended activity. Id. He had no trouble walking. Id.
At a Veterans Administration examination later that month, Roberts denied musculoskeletal or psychological issues. Id. He had full strength and full range of motion. Id. The next month, Roberts showed a normal gait despite his knee and back pain. Id.
In 2019, Roberts reported improvement with medication. Id. In March, he had chronic knee pain and displayed gait instability. Id. Providers prescribed him a cane. Id. Three months later, Roberts reported worsening shoulder pain, and an examination found tenderness. Id. Providers assessed tenosynovitis and other synovitis of the right shoulder and lateral epicondylitis of the right elbow. Id.
Roberts testified that he limits his driving to short distances during the day. Tr. at 23. He claimed memory issues and trouble completing tasks. Id. Roberts can sit for 30 minutes and stand for ten minutes. Id. He can lift five pounds but cannot lift anything above his shoulder. Tr. at 24.
On a typical day, it takes Roberts 40 minutes to get out of bed, as his nighttime medication make him lethargic. Id. He remarked that his pain is elevated, and it limits his activities. Id. He spends several hours in a recliner. Id.
Medications cause side effects including headaches and somnolence. Id. He has irritability and becomes fatigued when performing household chores. Id. Roberts shops off times to avoid crowds. Id.
Roberts uses a right knee brace and single-point cane. Id. He uses the cane daily. Id. Roberts noted his pain symptoms worsened in 2017 and 2018. Id. He relies on his wife to remind him to take medications. Id. And Roberts reported that he had trouble following conversations. Id.
D. VA Disability Rating
Roberts argues that ALJ Georgian failed to weigh the VA's 100% disability rating. The Commissioner argues that recent Regulations relieve ALJ Georgian from having to do so. The undersigned cannot agree with the Commissioner's position.
The Fourth Circuit has 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 an ALJ must give “persuasive, specific, valid reasons . . . that are supported by the record” before he may give less than substantial weight to the disability ratings of another agency. 888 F.3d 686, 692 (4th Cir. 2018) (internal quotation marks omitted). 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 v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013)).
General differences between VA disability ratings and Social Security disability determinations are not a sufficient basis for discrediting VA disability ratings. Because these 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), adopted by, 2015 WL 5089060 (E.D. N.C. Aug. 27, 2015).
ALJ Georgian stated that the SSA will not defer or give specific evidentiary weight to prior administrative medical findings or medical opinions. Tr. at 27. But she noted that she fully considered such evidence. Tr. at 27-28.
ALJ Georgian's statement references the January 2017 final rules titled “Revisions to Rules Regarding the Evaluation of Medical Evidence.” 82 Fed. Reg. 5844; see also 82 Fed. Reg. 15132 (March 27, 2017) (amending and correcting the final rules published at 82 Fed. Reg. 5844). Among other things, these final rules amended the Regulations addressing decisions by other governmental agencies and nongovernmental entities. 20 C.F.R. §§ 404.1504 and 416.904. For disability claims filed after March 27, 2017, the SSA “will not provide any analysis in [its] determination or decision about a decision made by any other governmental agency or a nongovernmental entity about whether you are disabled, blind, employable, or entitled to any benefits.” 20 C.F.R. §§ 404.1504, 416.904.
The Administration also 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 attempt 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.
As noted above, ALJ Georgian did not discuss Roberts's 100% VA disability rating. Her decision suggests, and the Commissioner's brief confirms, that SSA believe the new regulations supersede the Fourth Circuit's decision in Bird. But their position is mistaken.
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 what an ALJ must do to 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 court 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 address a VA disability rating leaves a logical gap in the decision between that agency's finding 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 Georgian's lack of consideration of this evidence. The lack of analysis of the VA disability finding warrants reversal.
The undersigned thus recommends that the court grant Roberts's motion on this issue.
E. Residual Functional Capacity
Roberts contends that ALJ Georgian erred in determining his RFC because she failed to include his use of a cane. The Commissioner asserts that the RFC sufficiently reflects all Roberts's well-supported limitations. The undersigned cannot find that substantial evidence supports ALJ Georgian's RFC determination.
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; Social Security Ruling (“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 (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, 734 F.2d at 295. 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) (“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))).
“The requirement to use a hand-held assistive device may ... impact ... [an] individual's functional capacity by virtue of the fact that one or both upper extremities are not available for such activities as lifting, carrying, pushing, and pulling.” 20 C.F.R. Part 404, Subpt. P, App. 1, § 1.00J4. Thus, an ALJ must consider the effect of “medically required” hand-held assistive devices. Eason v. Astrue, No. 2:07-CV-30-FL, 2008 WL 4108084, at *16 (E.D. N.C. Aug. 29, 2008); SSR 96-9, 1996 WL 374185, at *7 (July 2, 1996).
A hand-held assistive device is “medically required” if “medical documentation establish[es] the need for a hand-held assistive device to aid in walking or standing, and describing the circumstances for which it is needed.” SSR 96-9p, 1996 WL 374185, at *7. “The claimant bears the burden of presenting ‘medical evidence establishing the need for a cane and describing the circumstances for which it is needed.'” Gilmer v. Berryhill, No. 3:17-CV-539-FDW, 2018 WL 3518470, at *2 (W.D. N.C. July 20, 2018) (quoting SSR 96-9p). “[A] prescription or the lack of a prescription for an assistive device is not necessarily dispositive of medical necessity.” Fletcher v. Colvin, No. 1:14-CV-380, 2015 WL4506699, at *8 (M.D. N.C. July 23, 2015) (citing Staples v. Astrue, 329 Fed.Appx. 189, 191-92 (10th Cir. 2009)).
Whether the need for a hand-held assistive device affects functional capacity depends on the particular circumstances of the case. For example, an individual who requires a hand-held assistive device in one hand to walk may be able to use the other hand to perform requirements of many occupations. SSR 96-9p. “On the other hand, the occupational base for an individual who must use such a device for balance because of significant involvement of both lower extremities ... may be significantly eroded.” Id.
ALJ Georgian noted that providers prescribed Roberts a cane in March 2019. Tr. at 24. But Roberts displayed a normal and steady gait in later exams. Id.
Despite the cane prescription, ALJ Georgian's decision does not explicitly assess its medical necessity. ALJ Georgian omitted use of a cane from the RFC. Her review of the medical evidence noted normal gait and no swelling. Tr. at 27. And at times, Roberts denied difficulty walking and claimed his pain was under control. Id.
But the evidence also showed that Roberts's knee condition was a constant problem for him. In December 2016, Roberts complained of knee swelling and pain. Tr. at 778-79. An examination revealed swelling and tenderness. Id. Roberts again reported knee pain two months later. Tr. at 583-86. An MRI showed mild to moderate chondromalacia/cartilage loss in his right knee. Tr. at 545-47.
At a June 2017 visit, Roberts again claimed knee pain along with locking and giving way. Tr. at. 570. Two months later, Roberts reported constant knee pain with swelling, locking, and giving way. Tr. at 580, 1241. At the end of the year, Roberts again told providers that he had chronic knee pain that medications had not controlled. Tr. at 714, 1236.
In February 2018, Roberts reported that cold weather aggravated his chronic knee pain. Tr. at 1387. The next month, Roberts's knee pain continued, and he displayed a reduced range of motion. Tr. 690-96, 1212, 1214-16. Providers administered injections. Id. But his knee pain persisted. Tr. at 1393.
Roberts complained of continuing knee pain in August 2018. Tr. at 879, 1066, 1087, 1101. He reported morning stiffness lasting up to an hour. Id. And his knee pain worsened with extended activity. Tr. at 1382. Through the rest of that year, Roberts continued to report chronic knee pain, that worsened with prolonged sitting or standing. Tr. at 1021, 1025-26, 1037. He rated his knee pain as eight out of ten in intensity. Tr. at 1410.
Records from February 2019 show that Roberts ambulated slowly. Tr. 987, 991, 994, 998. One month later, he graded his pain as nine out of ten. Tr. at 990. Roberts experienced buckling knees, and an examination noted pain with bending. Tr. at 997-98. Because of his unsteady gait, providers prescribed him a cane. Tr. at 960-61.
The next month, Roberts was using a cane to ambulate. Tr. at 592. He again reported knee pain that worsened with activity. Tr. at 1416. And an examination showed a decreased range of motion in his knees. Tr. at 1419-20.
So the evidence does not show that Roberts's bilateral knee condition posed little limitation. There were some positive findings in the record, such as a normal gait. But the evidence also shows that Roberts sometimes displayed an abnormal gait. And he consistently reported pain in both knees that was not effectively addressed by pain medication. Objective testing confirmed degenerative joint disease. The VA rated Roberts 10% disabled based on his bilateral knee condition. And providers prescribed Roberts a cane, which he used to relieve knee pressure.
In sum, the evidence arguably supports a finding that Roberts's use of a cane was medically necessary. ALJ Georgian's lack of an explicit discussion of this matter leaves the court unable to determine whether substantial evidence supports a conclusion that Roberts did not require a cane.
This matter, too, warrants more consideration. So the undersigned recommends that the court grant Roberts's motion on this issue.
III. Conclusion
For these reasons, the undersigned recommends that the court grant Roberts's Motion for Judgment on the Pleadings (D.E. 17), deny Kijakazi's Motion for Judgment on the Pleadings (D.E. 20), and remand this matter to the Acting 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.