Opinion
C/A No.: 1:17-2442-DCC-SVH
09-28-2018
Nicole Taneka Sapp, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
This appeal from a denial of social security benefits is before the court for a Report and Recommendation ("Report") pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pro se pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether she applied the proper legal standards. For the reasons that follow, the undersigned recommends that the Commissioner's decision be reversed and remanded for further proceedings as set forth herein. I. Relevant Background
A. Procedural History
On or about January 24, 2013, Plaintiff protectively filed applications for DIB and SSI in which she alleged her disability began on December 26, 2012. Tr. at 61-62, 192-201. Her applications were denied initially and upon reconsideration. Tr. at 99-104, 111-18. On May 11, 2016, Plaintiff had a hearing before Administrative Law Judge ("ALJ") Arthur L. Conover. Tr. at 35-60 (Hr'g Tr.). The ALJ issued an unfavorable decision on July 12, 2016, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 8-26. Subsequently, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. Tr. at 1-7. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on September 13, 2017. [ECF No. 1].
B. Plaintiff's Background and Medical History
1. Background
Plaintiff was thirty-five years old at the time of the hearing. Tr. at 39. She weighed 214 pounds and was five feet and eight inches tall. Tr. at 40. She completed the tenth grade and obtained certification as a nurse's aide. Tr. at 42. Her past relevant work ("PRW") was as a deli worker, a cashier, and a certified nursing assistant. Tr. at 57. She alleges she has been unable to work since July 1, 2013. Tr. at 45.
Plaintiff amended her alleged onset date prior to the hearing because she had engaged in work activity after her original alleged onset date, and this date was clarified during the hearing. Tr. at 37, 45.
2. Medical History
Plaintiff reported to the emergency room ("ER") at Palmetto Health Baptist ("PHB") on March 3, 2009, with a complaint of pain in the right rhomboid area of her back. Tr. at 289. She indicated a client had hit her in the back with a trophy during a home visit. Id. The attending physician assessed a "very minor soft tissue contusion" and administered Motrin. Id.
On November 10, 2009, Plaintiff underwent arthroscopic synovectomy of the radiocapitellar joint and posterior lateral recess of the left elbow. Tr. at 361-62.
On April 15, 2010, Coleman Fowble, M.D. ("Dr. Fowble"), reviewed magnetic resonance imaging ("MRI") of Plaintiff's cervical spine. Tr. at 292-93. He indicated it showed an area of increased signal in the left area of the brainstem, just as the cord entered the foramen magnum. Id. He assessed neck pain with soft radicular signs and referred Plaintiff to a neurologist due to the discovered brainstem lesion. Id.
On January 24, 2011, Dr. Fowble noted Plaintiff had not been examined by a neurologist. Tr. at 296. Plaintiff complained of frequent headaches and muscle spasms in her neck that she rated as a seven on a 10-point scale. Id. Dr. Fowble assessed cervical spine pain without radicular symptoms and gliosis with possible multiple sclerosis. Tr. at 297.
Plaintiff presented to neurologist Brett C. Gunter, M.D. ("Dr. Gunter"), for an evaluation of neck pain on March 9, 2011. Tr. at 300. Dr. Gunter noted severe limited range of motion ("ROM") of Plaintiff's neck, particularly with extension. Id. He assessed cervical spondylosis and referred Plaintiff to a physical therapist. Tr. at 302.
Plaintiff participated in physical therapy in March and April 2011 and met eighty-three percent of her goals. Tr. at 303. She demonstrated ability to lift twenty pounds from floor to waist, but still demonstrated slight limitations in her ROM and strength. Id.
On July 14, 2011, the South Carolina Workers' Compensation Commission approved Plaintiff's workers' compensation settlement agreement. Tr. at 179. Plaintiff accepted a sum of $19,900 in compensation for "an approximate 15% permanent partial disability to the [left] upper extremit[y] and 10% permanent partial disability to the spine." Tr. at 180.
Plaintiff presented to Stephen A. Schacher, M.D. ("Dr. Schacher"), for a consultative examination on May 24, 2013. Tr. at 304-06. She reported she was unable to work because of frequent headaches and neck and back spasms. Tr. at 305. Dr. Schacher observed Plaintiff to have normal cranial nerves, gait, motor strength, sensation, and balance. Tr. at 306. He stated Plaintiff demonstrated normal mood and cognition. Id. He indicated Plaintiff had reduced cervical extension and bilateral rotation. Tr. at 307. ROM testing was otherwise normal in her cervical spine, lumbar spine, shoulders, elbows, wrists, knees, hips, and ankles. Id. A straight-leg raising ("SLR") test was normal. Id. X-rays of Plaintiff's lumbar and cervical spine were normal. Tr. at 310-11. Dr. Schacher noted no abnormalities in Plaintiff's hands or in her abilities to perform tandem and heel/toe walking and squatting. Tr. at 308. He assessed a history of assault with resultant neck and left elbow injuries. Tr. at 306. He noted Plaintiff had indicated an MRI of her brain showed an abnormality, but he had not received a copy of the MRI. Id. He assessed "neck and back pain after an assault while at work" and stated Plaintiff was capable of handling her own finances. Id.
On June 13, 2013, state agency medical consultant Darla Mullaney, M.D. ("Dr. Mullaney"), reviewed the record and found Plaintiff had the following physical residual functional capacity ("RFC"): occasionally lift and/or carry 50 pounds; frequently lift and/or carry 25 pounds; stand and/or walk for a total of about six hours in an eight-hour workday; and sit for about six hours in an eight-hour workday. Tr. at 67-68, 74-75. A second state agency medical consultant, Antoinette Thaxton-Brooks, M.D. ("Dr. Thaxton- Brooks"), assessed the same physical RFC on January 22, 2014. Tr. at 82-84, 92-94.
On September 11, 2013, Plaintiff complained of neck and back pain. Tr. at 335. She reported persistent, dull, aching, and cramping pain, especially in her right shoulder and the right side of her neck. Id. She indicated Flexeril made her feel tired and endorsed abdominal pain. Id. She denied weakness and radicular symptoms. Id. Tammi B. Pavey, PA-C ("Ms. Pavey"), described Plaintiff as anxious due to pain. Tr. at 336. She instructed Plaintiff on methods for treating muscle spasms and instructed her to follow up if her symptoms worsened or failed to improve. Id.
On September 13, 2013, Plaintiff reported to the ER at MCG Health after having sustained an injury while working. Tr. at 313. She complained of pain in her right upper back and neck areas. Id. The attending physician noted reproducible spasms with tenderness in the right upper back/trapezius area, but normal ROM and no midline spinal tenderness. Tr. at 314. She assessed back strain and prescribed Mobic and Robaxin. Tr. at 315.
On October 3, 2013, Plaintiff complained of a headache, muscle stiffness, and pain in her right shoulder and neck. Tr. at 332. Julie N. Buird, PA-C ("Ms. Buird"), observed Plaintiff to have right cervical paraspinous and trapezium tenderness to palpation and assessed muscle spasm of right shoulder. Tr. at 333. Plaintiff demonstrated intact cervical and shoulder ROM and normal upper and lower extremity muscle strength. Id. Ms. Buird prescribed ibuprofen for headaches and referred Plaintiff to a neurologist. Id.
Plaintiff presented to Fredric Woriax, M.D. ("Dr. Woriax"), to establish treatment on December 2, 2013. Tr. at 364. She complained of problems with her blood pressure and a history of two work-related injuries. Id. She endorsed back pain and spasms. Tr. at 365. Dr. Woriax assessed lumbago, arthralgias at multiple sites, muscle spasms, isolated elevated blood pressure, gastroesophageal reflux disease ("GERD"), family history of diabetes, and obesity. Tr. at 366. He indicated Plaintiff would benefit from physical therapy, but had no insurance. Id. He instructed Plaintiff to continue to use muscle relaxers and nonsteroidal anti-inflammatory drugs ("NSAIDs"), to exercise, and to incorporate dietary changes for weight loss. Id. He referred Plaintiff to a gynecologist. Id.
Plaintiff reported hypertension and fluid retention on July 1, 2014, and was aware she needed to schedule an appointment for all other issues. Tr. at 363. Jeneaurey Melendez, FNP ("Ms. Melendez"), noted no abnormalities on physical examination. Tr. at 363-64.
On July 25, 2014, Plaintiff presented to the ER at Lexington Medical Center ("LMC") for neck spasms and headache. Tr. at 422. Paul Shahbahrami, M.D. ("Dr. Shahbahrami"), observed paraspinous muscle spasms and tenderness in Plaintiff's neck, but no other abnormalities on physical examination. Tr. at 423. He diagnosed chronic neck pain and prescribed Ultram, Valium, and Zanaflex. Tr. at 423-24.
On November 28, 2014, Plaintiff presented to the ER at LMC for a panic attack, neck spasms, and constipation. Tr. at 432-33. Aubrey Bryant, M.D. ("Dr. Bryant"), indicated Plaintiff was nervous or anxious and assessed muscle spasm, anxiety, and constipation. Tr. at 434-35.
On December 11, 2014, Plaintiff presented to the ER at PHB, complaining of neck pain and noting "Valium ha[d] not helped her spasms at all." Tr. at 403. She reported sharp, stabbing neck pain, but denied weakness, numbness, tingling, and fever. Id. She indicated she was experiencing nausea and some pain in her upper abdomen. Id. Sarah Broeker, D.O. ("Dr. Broeker"), observed Plaintiff had some hypertonicity in her left trapezius and sternocleidomastoid. Tr. at 403-04. X-rays were unremarkable. Tr. at 404. A urinalysis was positive for hematuria, pyuria, and bacteria consistent with cystitis. Id. Dr. Broeker prescribed Flexeril and Macrobid and advised Plaintiff to establish primary care treatment through Richland Care. Id.
On January 9, 2015, Plaintiff presented to the ER at PHB for chest pain and neck spasms. Tr. at 410. She indicated she had walked from West Columbia because she did not want to take an ambulance. Id. She described spasms that radiated down either side of her neck. Id. She stated the left side was worse than the right. Id. Jennifer Matzner-Abrams, D.O. ("Dr. Matzner- Abrams"), observed no evidence of palpitations while Plaintiff was in the ER. Tr. at 411. Id. She diagnosed palpitations, neck spasms, history of gastritis, and history of hypertension. Id. She prescribed Flexeril and a Holter monitor. Id.
Plaintiff presented to the ER at PHB on January 26, 2015, for heart palpitations. Tr. at 388. She complained of stress and anxiety. Id. She indicated she had developed pain on the left side of her chest after she lifted a window. Id. Objective testing, such as lab x-rays and lab tests, yielded unremarkable results. Tr. at 389. Dr. Broeker assessed palpitations, left pectoralis muscle strain, and anxiety. Id. In addition, she arranged transportation for Plaintiff to obtain a Holter monitor. Id.
On March 25, 2015, Plaintiff complained of anemia, hypertension, pain in her feet and joints, muscle spasms, possible hernia, heart racing, and tooth pain. Tr. at 373. The attending provider added prescriptions of Hydrochlorothiazide for hypertension, Flexeril for muscle spasms, and Nexium for GERD. Id.
On April 16, 2015, Plaintiff complained of edema in her legs, arthritis in her lower extremities, sinus congestion and cough, constipation, heart palpations, and dental issues, seeking a dental referral. Tr. at 374. Michael T. Crump, M.D. ("Dr. Crump"), noted poor dentition and left upper quadrant abdominal pain, but no edema, and 2+ pulses. Id. He instructed Plaintiff to stop smoking and use Colace for constipation and Claritin for allergies. Id. He prescribed an antibiotic for a dental infection and referred Plaintiff for lab work and an electrocardiogram ("EKG"). Id. On April 17, 2015, a chest x-ray showed no active pulmonary disease. Tr. at 376.
A nurse practitioner examined Plaintiff and diagnosed microcytic anemia on April 20, 2015. Tr. at 378. She prescribed an iron supplement. Id. Plaintiff complained of a cyst, rash, and fatigue on May 26, 2015. Tr. at 379. The attending provider noted Plaintiff's blood pressure was good and she was not taking the daily iron supplement. Id. She encouraged Plaintiff to stop smoking and to be more active and referred her to a dermatologist. Tr. at 379-80.
Plaintiff complained of pain on her right side on July 8, 2015. Tr. at 381. The attending provider refilled Plaintiff's medications. Id.
On January 21, 2016, Plaintiff complained of a rash on her neck and requested medication refills. Tr. at 382. The attending provider instructed her to continue taking ibuprofen and Flexeril for back spasms, Hydrochlorothiazide for hypertension, an iron supplement and Colace for anemia, and Zyrtec and Nasonex for allergies. Id. She switched Plaintiff to Protonix for GERD. Id.
On March 10, 2016, Plaintiff complained that Protonix was not controlling her GERD symptoms. Tr. at 383. The attending provider continued Protonix and instructed Plaintiff on proper diet, exercise, and smoking cessation. Id. She refilled Triamcinolone cream for eczema. Id.
On March 22, 2016, Plaintiff returned to the Free Medical Clinic to request a larger sample of Triamcinolone cream. Tr. at 385. She complained of increased pain and spasms in her neck that caused headaches, but noted she had been sleeping on a different pillow. Id. The attending provider noted stiffness and paraspinal muscle tenderness to touch in Plaintiff's neck, but stated she had full active ROM. Id. She continued Plaintiff's medications and instructed her to take two Flexeril tablets per day, if necessary. Id. She also referred Plaintiff to physical therapy for neck and back spasms. Tr. at 386.
C. The Administrative Proceedings
1. The Administrative Hearing
a. Plaintiff's Testimony
At the hearing on May 11, 2016, Plaintiff testified she had sustained a work-related injury in 2009 and received a settlement. Tr. at 40. She stated she last worked on June 30, 2013. Tr. at 45-46. She indicated she received a second workers' compensation settlement for an injury to her back she sustained in 2013. Tr. at 46.
Plaintiff indicated she experienced problems with her lower back, neck, and right shoulder. Tr. at 47. She testified she had applied for a program that would provide free physical therapy, but her application had been denied. Tr. at 47. She endorsed numbness in her legs and left elbow and spasms in her neck and back. Tr. at 49. She indicated her providers at the Free Clinic had prescribed Flexeril and instructed her to take ibuprofen for back pain. Id. She explained Flexeril was only sometimes effective. Id. She stated numbness in two fingers of her left hand caused her to drop items. Tr. at 51-52. She indicated she had arthritis in her right hand. Tr. at 52. She stated muscle spasms interfered with her memory and sometimes caused migraines. Tr. at 53.
Plaintiff testified she experienced spasms if she sat for more than twenty to thirty minutes. Tr. at 50. She indicated she could lift three pounds. Tr. at 51. She stated her boyfriend helped her to dress. Tr. at 52. She endorsed difficulty with bending, stooping, tying shoes, and buttoning buttons. Tr. at 52-53.
Plaintiff testified she had lived in a car with her boyfriend for ten months, but had recently moved to a mobile home. Tr. at 39-40 and 56. She indicated her boyfriend typically shopped for groceries and performed household chores. Tr. at 51 and 55. She stated she was able to drive, but had to stop often because of back spasms. Tr. at 54.
b. Vocational Expert's Testimony
Vocational Expert ("VE") William Stewart, Ph.D., reviewed the record and testified at the hearing. Tr. at 56-59. The VE categorized Plaintiff's PRW as a deli worker, Dictionary of Occupational Titles ("DOT") number 290.477-018, as light with a specific vocational preparation ("SVP") of three; a cashier, DOT number 211.462-014, as light with an SVP of three; and a certified nursing assistant, DOT number 355.674-014, as medium with an SVP of four. Tr. at 57. The ALJ described a hypothetical individual of Plaintiff's vocational profile who could perform work at the light exertional level with the following additional restrictions: occasionally pushing and pulling with the lower extremities; no kneeling, crawling, or climbing of ladders, ropes, or scaffolds; occasionally climbing ramps and stairs, balancing, stooping, and crouching; occasionally reaching overhead with the dominant arm; frequently fingering with the left non-dominant hand; no working at heights or around dangerous, unguarded machinery; no exposure to vibration; and limited to routine, simple work activity. Tr. at 58. The VE testified that the hypothetical individual would be unable to perform Plaintiff's PRW, but could perform light work with an SVP of two as an inspector/hand packager, DOT number 559.687-074, with 114,000 positions in the national economy, and an office helper, DOT number 239.567-010, with 145,000 positions in the national economy. Id.
The ALJ asked the VE to consider that the individual would be off task for 25 percent of the workweek due to pain. Tr. at 58-59. He asked if the jobs identified in response to the prior question would allow for such absenteeism. Tr. at 59. The VE stated they would not. Id.
2. The ALJ's Findings
In his decision dated July 12, 2016, the ALJ made the following findings of fact and conclusions of law:
1. The claimant meets the insured status requirements of the Social Security Act through June 30, 2016, but not thereafter.
2. The claimant has not engaged in substantial gainful activity since July 1, 2013, the amended alleged onset date (20 CFR 404.1571 et seq. and 416.971 et seq.).
3. The claimant has the following severe impairments: neck, back and right shoulder degeneration, obesity and history of left elbow surgery (20 CFR 404.1520(c) and 416.920(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform less than the full range of light work as defined in 20 CFR 404.1567(b) and 416.967(b) except the claimant could only perform routine, simple work activity. The claimant could occasionally balance, stoop, crouch, climb ramps/stairs and push/pull with legs; and should never kneel, crawl and climb ladders, ropes and scaffolds. The claimant could frequently perform fingering with the left non-dominant hand and occasionally perform overhead reaching with the right dominant arm. The claimant should avoid all exposure to hazards including unprotected heights and dangerous machinery, and all exposure to vibration.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on May 22, 1980 and was 32 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
8. The claimant has a limited education and is able to communicate in English (20 CFR 404.1564 and 416.964).Tr. at 13-21. II. Discussion
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from July 1, 2013, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).
Plaintiff argues a conspiracy exists between the ALJ, the state, and her former representative to prevent her from receiving adequate compensation or treatment for her injuries. [ECF Nos. 1 at 4, 33 at 1]. She claims her doctor did not release her to return to work. Id. She asserts she has provided all of her documentation and was unable to obtain additional treatment due to her financial issues. [ECF Nos. 33 at 1, 35 at 1].
The undersigned declines to address this allegation and others, such as whether Plaintiff was misled regarding a workers' compensation settlement agreement or not, due to the recommendation that this matter be remanded. [ECF No. 33 at 1].
The record contains no statement that Plaintiff was to remain out of work, aside from a January 24, 2011 work status form from Dr. Fowble that indicated she was to remain out of work until her next appointment. See Tr. at 291. Although Plaintiff sustained an on-the-job injury in 2009, she returned to work from 2011 until 2013. See Tr. at 45, 219-20, and 313.
Plaintiff submitted additional medical documents covering the period of March 2009 to April 2011 and filed a DVD with her response brief. The undersigned directed the Clerk of Court to return the DVD to Plaintiff, as the Clerk's office was unable to access the information on the DVD and there was no indication a copy was sent to the Commissioner. [ECF No. 36]. Plaintiff was advised any evidence she wished to have considered by the court should be filed in documentary form by August 21, 2018, but no additional documents have been received as of September 28, 2018. [ECF Nos. 36-38].
The Commissioner argues substantial evidence supports the ALJ's findings and the ALJ committed no legal error in his decision.
A. Legal Framework
1. The Commissioner's Determination-of-Disability Process
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a "disability." 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability as:
inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458 (1983) (discussing considerations and noting "need for efficiency" in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity; (2) whether she has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents her from doing substantial gainful employment. See 20 C.F.R. §§ 404.1520, 416.920. These considerations are sometimes referred to as the "five steps" of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at any step, Commissioner may make a determination and not go on to the next step).
The Commissioner's regulations include an extensive list of impairments ("the Listings" or "Listed impairments") the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. §§ 404.1525, 416.925. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, he will be found disabled without further assessment. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that his impairments match several specific criteria or are "at least equal in severity and duration to [those] criteria." 20 C.F.R. §§ 404.1526, 416.926; see Sullivan v. Zebley, 493 U.S. 521, 530-31 (1990); see also Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's PRW to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. §§ 404.1520(h), 416.920(h).
A claimant is not disabled within the meaning of the Act if she can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. §§ 404.1520(a), (b), (f), 416.920(a), (b), (f); Social Security Ruling ("SSR") 82-62 (1982). The claimant bears the burden of establishing her inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence the claimant can perform alternative work and such work exists in the national economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that he is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of "any final decision of the Commissioner . . . made after a hearing to which he was a party." 42 U.S.C. § 405(g). The scope of that federal court review is narrowly tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See id.; Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to "try [these cases] de novo or resolve mere conflicts in the evidence." Vitek v. Finch, 438 F.2d 1157, 1157 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. Richardson, 402 U.S. at 390. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. at 401 (citation omitted); Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). "In reviewing for substantial evidence, we do not undertake to reweigh conflicting evidence, make credibility determinations, or substitute our judgment for that of the [ALJ]." Johnson, 434 F.3d at 653 (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996)). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed "even should the court disagree with such decision." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
B. Analysis
1. RFC Assessment
Plaintiff claims there is a conspiracy preventing her from receiving compensation or treatment for her injuries and argues she has provided all of the documentation in her possession for review. [ECF No. 33 at 1].
The Commissioner responds to Plaintiff's argument in the context of the assigned RFC and asserts substantial evidence supports the ALJ's decision. [ECF No. 34 at 1-7]. In particular, she argues the ALJ included all of the credibly-established functional limitations in the RFC assessment, and the ALJ's findings are supported by the objective medical evidence, conservative treatment history, and Plaintiff's ADLs. Id. at 7.
The Commissioner previously filed a nearly identical brief on April 9, 2018, which has been considered as well. [ECF No. 20].
Plaintiff replies the ALJ should not have denied her claims due to a lack of medical history because she was unable to afford treatment. [ECF No. 35 at 1]. In addition, she argues the ALJ incorrectly relied upon inaccurate evidence in his decision. Id.; see also Tr. at 286.
The undersigned notes Plaintiff's filings have been liberally construed to allow for development of a potentially meritorious claim because she is proceeding pro se. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) ("A document filed pro se is 'to be liberally construed,' and 'a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" (internal citations omitted)); see also Evans v. Commissioner of Social Security Administration, 670 F. App'x 156, 2016 WL 6575081 (4th Cir. 2016) (remanding case because Plaintiff's complaint could be liberally construed to raise the possibility that he sought relief in the form of a writ of mandamus).
Before determining whether a claimant is capable of performing her PRW or other work that exists in the economy, the ALJ must determine the claimant's RFC. 20 C.F.R. §§ 404.1520(e), 416.920(e). To adequately assess a claimant's RFC, the ALJ must determine the limitations imposed by her impairments and how those limitations affect her ability to perform work-related physical and mental abilities on a regular and continuing basis. SSR 96-8p. The ALJ should consider all the claimant's allegations of physical and mental limitations and restrictions, including those that result from severe and non-severe impairments. Id. The RFC assessment must include a narrative discussion describing how all the relevant evidence in the case record supports each conclusion and must cite specific medical facts (e.g., laboratory findings) and non-medical evidence (e.g., daily activities, observations). Id. The ALJ must also consider and explain how any material inconsistencies or ambiguities in the record were resolved. Id. "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." Id. "[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." Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (citing Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)).
The Social Security Administration uses a two-step process to evaluate a claimant's subjective symptoms. First, the ALJ must determine whether the claimant has a medical impairment that results from anatomical, physiological, or psychological abnormalities and that could reasonably be expected to produce the pain or other symptoms alleged. 20 C.F.R. §§ 404.1529(b), 416.929(b) (effective Jun. 13, 2011, to Mar. 26, 2017). After having determined that the medical signs or laboratory findings support the existence of a medically-determinable impairment that could reasonably be expected to produce the alleged symptoms, the ALJ should evaluate the intensity and persistence of the claimant's symptoms to determine how they affect her capacity for work. 20 C.F.R. §§ 404.1529(c), 416.929(c) (effective Jun. 13, 2011, to Mar. 26, 2017).
In evaluating the intensity, persistence, and limiting effects of an individual's symptoms and the extent to which they limit an individual's ability to perform basic work activities, adjudicators are to consider all record evidence, which can include the following: the objective medical evidence; the individual's activities of daily living ("ADLs"); the location, duration, frequency, and intensity of the individual's pain or other symptoms; factors that precipitate and aggravate the symptoms; the type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms; treatment, other than medication, the individual receives or has received for relief of pain or other symptoms; any measures other than treatment the individual uses to relieve pain or other symptoms; and any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) (effective Jun. 13, 2011, to Mar. 26, 2017); see also SSR 96-7p, SSR 16-3p (superseding SSR 96-7p for all decisions issued on or after March 28, 2016, as noted in the Federal Register); 82 Fed. Reg. 49462 n.27, 2017 WL 4790249.
a. Plaintiff's Inability to Afford Treatment
Although the Commissioner contends the objective medical evidence and conservative treatment history support the ALJ's assessment, Plaintiff correctly points out the ALJ should not have denied her claims for lack of consistent treatment without addressing her alleged inability to afford it.
"If the frequency or extent of the treatment sought by an individual is not comparable with the degree of the individual's subjective complaints, or if the individual fails to follow prescribed treatment that might improve symptoms, we may find the alleged intensity and persistence of an individual's symptoms are inconsistent with the overall evidence of record." SSR 16-3p. However, "[w]e will not find an individual's symptoms inconsistent with the evidence in the record on this basis without considering possible reasons he or she may not comply with treatment or seek treatment consistent with the degree of his or her complaints." Id. The ALJ is specifically required to consider physical, mental, educational, and linguistic limitations or the claimant's explanations for a failure to follow prescribed treatment before drawing negative inferences about his or her symptoms and their functional effects. 20 C.F.R. §§ 404.1530(c), 416.930(c).
In addition, pursuant to SSR 16-3p, "we will consider and address reasons for not pursuing treatment that are pertinent to an individual's case," including whether "[a]n individual may not be able to afford treatment and may not have access to free or low-cost medical services." The Court of Appeals for the Fourth Circuit ("Fourth Circuit") also prohibits ALJs from denying benefits based on a failure to follow prescribed treatment where the claimant lacks the financial resources to obtain treatment. See Lovejoy v. Heckler, 790 F.2d 1114, 1117 (4th Cir. 1986) (holding the ALJ erred in determining the plaintiff's impairment was not severe based on her failure to seek treatment where the record reflected she could not afford treatment); Gordon v. Schweiker, 725 F.2d 231, 237 (4th Cir. 1984) ("[I]t flies in the face of the patent purposes of the Social Security Act to deny benefits to someone because he is too poor to obtain medical treatment that may help him."). This court has found an ALJ's credibility assessment was flawed and warranted remand where the ALJ considered the plaintiff's failure to seek treatment as a factor in the disability determination and the record reflected the plaintiff did not have the financial resources to obtain treatment. Fleming v. Astrue, No. 5:11-304-DCN-KDW, 2012 WL 3686622 (D.S.C. Jul. 10, 2012), adopted as modified by 2012 WL 3679628 (D.S.C. Aug. 24, 2012).
Here, details of Plaintiff's financial struggles are provided throughout the record. See, e.g., Tr. at 39-41, 48, 56 (stating she tried to keep her home, but lost it and had been living in a car for almost a year); Tr. at 47-49 (explaining she was obtaining treatment from a free clinic); Tr. at 47 (noting she attempted to go to therapy, but the program denied her request to pay for it); Tr. at 49 (taking only Flexeril or ibuprofen for her pain because the free medical clinic did not provide narcotic medication); Tr. at 51 (stating she qualified for and received food stamps); Tr. at 40, 50, 55 (noting workers' compensation was not paying for treatments or specialists and was denying her request for treatment); Tr. at 40, 48 (testifying she had obtained an apartment just three days before the hearing); Tr. at 108-110, 271 (writing "I do not have money to go to the doctors or get medicine" in a disability report); Tr. at 366 (indicating Plaintiff would benefit from therapy, but had no insurance); Tr. at 410 (noting Plaintiff walked from West Columbia to the ER to avoid taking an ambulance). In addition, on July 11, 2014, Plaintiff's representative filed a "Request for Dire Need Consideration" to the Chief ALJ, requesting a hearing as soon as possible and explaining Plaintiff was "homeless and has no income or family support. She has re-applied for the indigent care program in order to see a doctor, but is still waiting approval. In the meantime, she cannot purchase any medications that were previously prescribed for her chronic impairments." Tr. at 140.
The ALJ stated,
The record does not contain documentation or any other treatment notes, office records, hospital records or mental health records indicating the claimant received any specialized medical care. . . . The record shows that the claimant had not purs[u]ed treatment on a consistent basis for any of her alleged conditions and symptoms. This failure to maintain any consistent treatment does not support the claimant's allegations.Tr. at 18. The ALJ's decision relied upon Plaintiff's lack of consistent treatment to discount her allegations, but failed to address the "reasons for not pursuing treatment" pursuant to SSR 16_3p. In particular, the ALJ failed to address the evidence in the record relaying Plaintiff was "not be able to afford treatment" as required by SSR 16-3p and Fourth Circuit precedent. See, e.g., Lovejoy, 790 F.2d at 1117 ("Lovejoy testified at the hearing before the ALJ that she had very little income and lacked the funds to seek medical help or medication for her ailments. . . . Her testimony that she simply could not afford further treatment is uncontradicted on the record. A claimant may not be penalized for failing to seek treatment she cannot afford . . . .").
In light of the foregoing, the undersigned recommends the court find the ALJ did not evaluate Plaintiff's pain and other symptoms in accordance with the relevant ruling, regulations, and Fourth Circuit precedent.
b. Inaccurate Summary of Plaintiff's ADLs
Moreover, the ALJ referred to Plaintiff's ADLs to support her "described daily activities are indicative of a fairly active and varied lifestyle and are not representative of a significant restriction of activities, constriction of interests, or impaired social functioning." Tr. at 18. However, there were several inconsistencies between the ALJ's decision and Plaintiff's testimony at the hearing.
For example, Plaintiff testified she did not do her own grocery shopping and, when asked if she had problems taking care of her personal needs like bathing or dressing, she testified her boyfriend "helps [her] out a lot." Tr. at 52; Tr. at 51 (stating her boyfriend did the grocery shopping); Tr. at 52 (stating her boyfriend helps dress her); Tr. at 53-54 (explaining she does not cook because she "can't stand like that" and her boyfriend would heat up her food); Tr. at 42, 54 (explaining she can't drive for long distances due to spasms in her back and she had to stop six times while traveling from Columbia to Augusta for the hearing); and Tr. at 55 (stating her boyfriend does the household chores). Yet, the ALJ's decision states:
Although the evidence shows that the claimant has a medically determinable impairments that could reasonably be expected to produce the symptoms alleged, the evidence does not support the claimant's allegations of symptoms that render her totally disabled from employment. The evidence shows that the claimant is able to care for her own personal needs, handling her own financial and legal affairs and had no indication of any mental impairment. She continues to drive and is able to independently perform activities of daily living. The claimant can complete an impressive spectrum of activities of daily living including household chores, cleaning, preparing meals, shopping in stores, tending to personal care, following television programming, socializing with family and driving/riding in a car. There are no cognitive difficulties noted in any of the treatment records. The claimant's described daily activities are indicative of a fairly active and varied lifestyle and are not representative of a significant restriction of activities, constriction of interests, or impaired social functioning.Tr. at 18. Furthermore, the undersigned notes the record reveals Plaintiff stood during the hearing, but the ALJ's decision states, "[d]uring the hearing, the claimant sat without any visible signs of discomfort . . . ." Tr. at 18; see Tr. at 47 ("Your Honor, I have to stand. She told me, she said I could stand."). These inconsistencies cannot be ignored. See Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 269 (4th Cir. 2017) (reversing and remanding the case after noting "instances of inaccuracy and unreasonableness in the ALJ's adverse credibility finding" and "[t]he ALJ also improperly relied on his own observations[, such as the plaintiff was able to sit through the hearing,] in finding . . . his pain was not as limiting as he claimed"). "Because the ALJ's credibility assessment is flawed, it cannot be upheld." Fleming v. Astrue, No. 5:11-304-DCN, 2012 WL 3686622, at *17 (D.S.C. July 10, 2012) adopted as modified, 2012 WL 3679628 (D.S.C. Aug. 24, 2012).
"[SSR] 96-8p explains that the RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations)." Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (internal quotation marks and citations omitted); 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"). The Fourth Circuit has "held that '[a] necessary predicate to engaging in substantial evidence review is a record of the basis for the ALJ's ruling,' including 'a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence.'" Monroe, 826 F.3d at 189 (quoting Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013)). "[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." Mascio, 780 F.3d at 636 (citing Cichocki, 729 F.3d at 177).
Because the ALJ's credibility assessment is flawed and he failed to comply with SSR 16-3p, applicable regulations, and Fourth Circuit precedent, the undersigned recommends his decision is not supported by substantial evidence and this case should be remanded.
2. Additional Errors
In an effort to ensure other possible errors are addressed on remand, the undersigned notes an apparent conflict appears to exist between the DOT and the VE's testimony, and this conflict remains unresolved.
During the fifth step in the sequential evaluation process, "the Commissioner bears the burden to prove that the claimant is able to perform alternative work." Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015) (citing Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987)). While assessing the claimant's ability to perform other jobs existing in significant numbers in the national economy, the ALJ should take administrative notice of job information contained in the DOT. 20 C.F.R. §§ 404.1566(d), 416.966(d); see also SSR 00-4p (providing that "we rely primarily on the DOT (including its companion publication, the [Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles]), for information about the requirements of work in the national economy"). In some cases, ALJs obtain testimony from VEs to address how certain restrictions affect claimants' abilities to perform specific jobs. 20 C.F.R. §§ 404.1566(e), 416.966(e).
Acknowledging that VE's opinions sometimes conflict with the information contained in the DOT, the SSA promulgated SSR 00_4p to explain how these conflicts should be resolved. The SSR 00-4p's purpose is to "require the ALJ (not the [VE]) to '[i]dentify and obtain a reasonable explanation' for conflicts between the [VE]'s testimony and the [DOT], and to 'explain in the determination or decision how any conflict that has been identified was resolved.'" Pearson, 810 F.3d at 208 (citing SSR 00-4p (emphasis in original)). According to SSR 00-4p, the ALJ has two responsibilities to fulfill. Id. "First, the ALJ must '[a]sk the [VE] . . . if the evidence he or she has provided conflicts with information provided in the [DOT].'" Id. (citing SSR 00-4p). "[S]econd, '[i]f the [VE]'s . . . evidence appears to conflict with the [DOT],' the ALJ must 'obtain a reasonable explanation for the apparent conflict.'" Id. (citing SSR 00-4p). "SSR 00-4p directs the ALJ to 'resolve the conflict by determining if the explanation given by the [VE] is reasonable'" and "to 'explain the resolution of the conflict irrespective of how the conflict was identified.'" Id. (citing SSR 00-4p (emphasis in original)). Therefore, "[t]he ALJ independently must identify conflicts between the expert's testimony and the [DOT]." Id. at 209. Furthermore, "an ALJ has not fully developed the record if it contains an unresolved conflict between the VE's testimony and the DOT," and "an ALJ errs if he ignores an apparent conflict on the basis that the VE testified that no conflict existed." Henderson, 643 F. App'x 273, 277 (4th Cir. 2016) (citing Pearson, 810 F.3d at 210).
The court explained that an "apparent conflict" existed when the VE's testimony "appear[ed] to conflict with the [DOT]," but an explanation from the VE may show that no actual conflict exists. Pearson, 810 F.3d at 209. ALJs must resolve both obvious and apparent conflicts between the VE's testimony and the DOT.
In this case, the ALJ limited Plaintiff's RFC to "only perform routine, simple work activity." Tr. at 14. "Following the Fourth Circuit's decision in Henderson, this court considered restrictions to simple, routine tasks in several cases and found that a conflict existed between the restrictions and GED reasoning level two," and, thus, a plaintiff with this restriction was limited to jobs with a GED reasoning level of one. Austin v. Berryhill, No. 1:17-1797-JMC-SVH, 2018 WL 2392209, at *19 (D.S.C. Apr. 24, 2018) (collecting cases), adopted by 2018 WL 2389595 (D.S.C. May 24, 2018). However, the two jobs provided by the VE, inspector and hand packager or office helper, require a GED reasoning level of two, not one. See 559.687-074 INSPECTOR AND HAND PACKAGER, DOT (4th ed., revised 1991), 1991 WL 683797; 239.567-010 OFFICE HELPER, DOT (4th ed., revised 1991), 1991 WL 672232. In addition, the ALJ limited Plaintiff to "frequently perform fingering with the left non-dominant hand and occasionally perform overhead reaching with the right dominant arm." Tr. at 14. Yet, both of these jobs require frequent fingering and frequent reaching. Thus, the ALJ failed to recognize any conflict existed between the VE's testimony and the job descriptions provided in the DOT. Tr. at 20.
As explained by the Fourth Circuit previously, in cases involving apparent conflicts, "testimony may only appear to conflict with the [DOT], and the vocational expert may be able to explain that, in fact, no conflict exists." Pearson, 810 F.3d at 209. Yet, "if the ALJ does not elicit this explanation," the VE's testimony "cannot provide substantial evidence to support the ALJ's decision." Id. "An expert's testimony that apparently conflicts with the [DOT] can only provide substantial evidence if the ALJ has received this explanation from the expert and determined that the explanation is reasonable and provides a basis for relying on the testimony rather than the [DOT]." Id. at 209-10 (citing SSR 00-4p). It may be possible that the VE's testimony does not actually conflict with the DOT's descriptions of inspector and hand packager or office helper; however, the undersigned is unable to make that determination because the ALJ failed to recognize the apparent conflict and elicit an explanation from the VE. Instead, the ALJ's decision only states that he has determined the VE's testimony was consistent pursuant to SSR 00-4p, Tr. at 20. Without an explanation or independent determination, the ALJ erred in relying on the jobs that the VE identified to meet the burden at the fifth step.
Moreover, although the ALJ's decision states the VE testified that his testimony was consistent with the DOT, a review of the hearing transcript reveals this assertion by the VE did not occur. Compare Tr. at 20, with Tr. at 35-60.
In light of the foregoing, the undersigned recommends the court find that substantial evidence does not support the ALJ's reliance on the VE's testimony to meet the burden at the fifth step. III. Conclusion and Recommendation
The court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported as a matter of fact and law. Based on the foregoing, the court cannot determine that the Commissioner's decision is supported by substantial evidence. Therefore, the undersigned recommends, pursuant to the power of the court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in Social Security actions under sentence four of 42 U.S.C. § 405(g), that this matter be reversed and remanded for further administrative proceedings.
IT IS SO RECOMMENDED. September 28, 2018
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).