Opinion
Civil Action 8:21-cv-03411-SAL-JDA
10-26-2022
Sherry D., Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Jacquelyn D. Austin United States Magistrate Judge
This matter is before the Court for a Report and Recommendation pursuant to Local Civil Rule 73.02(B)(2)(a), D.S.C., and Title 28, United States Code, Section 636(b)(1)(B). Plaintiff brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the Commissioner of Social Security ("the Commissioner"), denying Plaintiff's claim for supplemental security income ("SSI"). For the reasons set forth below, it is recommended that the decision of the Commissioner be reversed and remanded for administrative action consistent with this recommendation, pursuant to sentence four of 42 U.S.C. § 405(g).
A Report and Recommendation is being filed in this case, in which one or both parties declined to consent to disposition by a magistrate judge.
PROCEDURAL HISTORY
Plaintiff filed an application for SSI in October 2019, alleging a disability onset date of May 17, 2018, which Plaintiff subsequently amended to October 8, 2019, the application date. [R. 14, 168-75.] The claim was denied initially and on reconsideration by the Social Security Administration (“the Administration”). [R. 83-91, 94-103, 107-10.] Plaintiff requested a hearing before an administrative law judge (“ALJ”) and on November 9, 2020, ALJ Alice Jordan conducted a telephone hearing on Plaintiff's claim. [R. 27-56.]
The ALJ issued a decision on February 18, 2021, finding Plaintiff not disabled within the meaning of the Social Security Act (the “Act”) since October 8, 2019, the date the application was filed. [R. 11-26.] At Step 1, the ALJ found Plaintiff has not engaged in substantial gainful activity since October 8, 2019, the alleged onset date. [R. 16, Finding 1.] At Step 2, the ALJ found Plaintiff had the following severe impairments: cardiomyopathy and mild congestive heart failure. [R. 16, Finding 2.] At Step 3, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 17, Finding 3.]
The five-step sequential analysis used to evaluate disability claims is discussed in the Applicable Law section, infra.
Before addressing Step 4, Plaintiff's ability to perform his past relevant work, the ALJ found Plaintiff retained the following residual functional capacity (“RFC”):
[Plaintiff] has the [RFC] to perform light work as defined in 20 CFR 416.967(b) except she can lift up to 20 pounds occasionally, 10 pounds frequently; can sit, stand, and walk for 6 hours each of an 8-hour day; but needs the ability to change positions as needed, allowing for position change or where she could stand or sit as needed without losing production or being off task; never ladders, ropes, or scaffolds; occasional climb ramps and stairs; can frequently stoop, kneel, crouch, and crawl; must avoid concentrated exposure to temperature extremes of heat, cold, high humidity, and avoid concentrated
exposure to hazards, usually meaning dangerous machinery or unprotected heights.[R. 17, Finding 4.] Based on this RFC finding, the ALJ determined at Step 4 that Plaintiff was unable to perform her past relevant work as an assembler, automotive industry. [R. 21, Finding 5.] Considering Plaintiff's age, education, work experience, RFC, and the testimony of the vocational expert (“VE”), however, the ALJ determined that there were jobs that existed in significant numbers in the national economy that the Plaintiff could perform. [R. 21, Finding 9.] Thus, the ALJ found that Plaintiff had not been under a disability, as defined in the Act, since October 8, 2019, the date the application was filed. [R. 22, Finding 10.]
Plaintiff requested Appeals Council review of the ALJ's decision, and the Appeals Council declined review. [R. 1-6.] Plaintiff filed the instant request for review in this Court on October 18, 2021. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff contends the ALJ's decision is not supported by substantial evidence and contains multiple legal errors warranting the reversal and remand of the case. [Doc. 10.] Specifically, Plaintiff contends the ALJ failed to properly evaluate multiple opinions supporting greater limitations than those found by the ALJ, specifically limitations found by Dr. Wheeler. [Id. at 8-11.] Additionally, Plaintiff argues the ALJ erred in evaluating her RFC by failing to consider her need to use the restroom three or four times every two hours as a side effect of her medication. [Id. at 12-14.]
The Commissioner contends the decision should be affirmed because the ALJ reasonably and correctly concluded that Plaintiff remained capable of a limited range of light work. [Doc. 11.] Specifically, the Commissioner contends the statements provided by Dr. Wheeler are not medical opinions under governing regulations applicable to this case and the ALJ did not need to evaluate their persuasiveness under 20 C.F.R. § 416.920c as Plaintiff suggests. [ Id. at 8-12.] Additionally, the Commissioner contends the ALJ was not required to include limitations with respect to bathroom frequency based on Plaintiff's subjective complaints alone. [Id. at 12-14.]
STANDARD OF REVIEW
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla-i.e., the evidence must do more than merely create a suspicion of the existence of a fact and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966).
Where conflicting evidence “allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ),” not on the reviewing court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991) (stating that where the Commissioner's decision is supported by substantial evidence, the court will affirm, even if the reviewer would have reached a contrary result as finder of fact and even if the reviewer finds that the evidence preponderates against the Commissioner's decision). Thus, it is not within the province of a reviewing court to determine the weight of the evidence, nor is it the court's function to substitute its judgment for that of the Commissioner so long as the decision is supported by substantial evidence. See Bird v. Comm'r, 699 F.3d 337, 340 (4th Cir. 2012); Laws, 368 F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).
The reviewing court will reverse the Commissioner's decision on plenary review, however, if the decision applies incorrect law or fails to provide the court with sufficient reasoning to determine that the Commissioner properly applied the law. Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980); see also Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner's decision “is in clear disregard of the overwhelming weight of the evidence, Congress has empowered the courts to modify or reverse the [Commissioner's] decision ‘with or without remanding the cause for a rehearing.'” Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971) (quoting 42 U.S.C. § 405(g)). Remand is unnecessary where “the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no purpose.” Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974).
The court may remand a case to the Commissioner for a rehearing under sentence four or sentence six of 42 U.S.C. § 405(g). Sargent v. Sullivan, 941 F.2d 1207 (4th Cir. 1991) (unpublished table decision). To remand under sentence four, the reviewing court must find either that the Commissioner's decision is not supported by substantial evidence or that the Commissioner incorrectly applied the law relevant to the disability claim. See, e.g., Jackson v. Chater, 99 F.3d 1086, 1090-91 (11th Cir. 1996) (holding remand was appropriate where the ALJ failed to develop a full and fair record of the claimant's residual functional capacity); Brenem v. Harris, 621 F.2d 688, 690-91 (5th Cir. 1980) (holding remand was appropriate where record was insufficient to affirm but was also insufficient for court to find the claimant disabled). Where the court cannot discern the basis for the Commissioner's decision, a remand under sentence four is usually the proper course to allow the Commissioner to explain the basis for the decision or for additional investigation. See Radford v. Comm'r, 734 F.3d 288, 295 (4th Cir. 2013);see also Smith v. Heckler, 782 F.2d 1176, 1181-82 (4th Cir. 1986) (remanding case where decision of ALJ contained “a gap in its reasoning” because ALJ did not say he was discounting testimony or why); Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (remanding case where neither the ALJ nor the Appeals Council indicated the weight given to relevant evidence). On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. See Smith, 782 F.2d at 1182 (“The [Commissioner] and the claimant may produce further evidence on remand.”). After a remand under sentence four, the court enters a final and immediately appealable judgment and then loses jurisdiction. Sargent, 941 F.2d 1207.
In contrast, sentence six provides:
The court may . . . at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding ....42 U.S.C. § 405(g). A reviewing court may remand a case to the Commissioner on the basis of new evidence only if four prerequisites are met: (1) the evidence is relevant to the determination of disability at the time the application was first filed; (2) the evidence is material to the extent that the Commissioner's decision might reasonably have been different had the new evidence been before him; (3) there is good cause for the claimant's failure to submit the evidence when the claim was before the Commissioner; and (4) the claimant made at least a general showing of the nature of the new evidence to the reviewing court. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985), superseded by amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec'y, Dep't of Health & Human Servs., 925 F.2d 769, 774 (4th Cir. 1991). With remand under sentence six, the parties must return to the court after remand to file modified findings of fact. Melkonyan, 501 U.S. at 98. The reviewing court retains jurisdiction pending remand and does not enter a final judgment until after the completion of remand proceedings. See Allen v. Chater, 67 F.3d 293 (4th Cir. 1995) (unpublished table decision) (holding that an order remanding a claim for Social Security benefits pursuant to sentence six of 42 U.S.C. § 405(g) is not a final order).
Though the court in Wilkins indicated in a parenthetical that the four-part test set forth in Borders had been superseded by an amendment to 42 U.S.C. § 405(g), courts in the Fourth Circuit have continued to cite the requirements outlined in Borders when evaluating a claim for remand based on new evidence. See, e.g., Brooks v. Astrue, No. 6:10-cv-152, 2010 WL 5478648, at *8 (D.S.C. Nov. 23, 2010); Ashton v. Astrue, No. TMD 09-1107, 2010 WL 3199345, at *3 (D. Md. Aug. 12, 2010); Washington v. Comm'r of Soc. Sec., No. 2:08-cv-93, 2009 WL 86737, at *5 (E.D. Va. Jan. 13, 2009); Brock v. Sec'y of Health & Human Servs., 807 F.Supp. 1248, 1250 n.3 (S.D. W.Va. 1992). Further, the Supreme Court of the United States has not suggested Borders' construction of § 405(g) is incorrect. See Sullivan v. Finkelstein, 496 U.S. 617, 626 n.6 (1990). Accordingly, the Court will apply the more stringent Borders inquiry.
APPLICABLE LAW
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). “Disability” is defined as:
the 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 consecutive months.Id. § 423(d)(1)(A).
I. The Five-Step Evaluation
To facilitate uniform and efficient processing of disability claims, federal regulations have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (noting a “need for efficiency” in considering disability claims). The ALJ must consider whether (1) the claimant is engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the impairment meets or equals an impairment included in the Administration's Official Listings of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents the claimant from performing past relevant work; and (5) the impairment prevents the claimant from having substantial gainful employment. 20 C.F.R. § 416.920. Through the fourth step, the burden of production and proof is on the claimant. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). The claimant must prove disability on or before the last day of her insured status to receive disability benefits. Everett v. Sec'y of Health, Educ. & Welfare, 412 F.2d 842, 843 (4th Cir. 1969). If the inquiry reaches Step 5, the burden shifts to the Commissioner to produce evidence that other jobs exist in the national economy that the claimant can perform, considering the claimant's age, education, and work experience. Grant, 699 F.2d at 191. If at any step of the evaluation the ALJ can find an individual is disabled or not disabled, further inquiry is unnecessary. 20 C.F.R. § 416.920(a)(4); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
A. Substantial Gainful Activity
“Substantial gainful activity” must be both substantial-involves doing significant physical or mental activities, 20 C.F.R. § 416.972(a)-and gainful-done for pay or profit, whether or not a profit is realized, Id. § 416.972(b). If an individual has earnings from employment or self-employment above a specific level set out in the regulations, he is generally presumed to be able to engage in substantial gainful activity. Id. § 416.974-975.
B. Severe Impairment
An impairment is “severe” if it significantly limits an individual's ability to perform basic work activities. See id. § 416.921. When determining whether a claimant's physical and mental impairments are sufficiently severe, the ALJ must consider the combined effect of all of the claimant's impairments. 42 U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G). The ALJ must evaluate a disability claimant as a whole person and not in the abstract, having several hypothetical and isolated illnesses. Walker v. Bowen, 889 F.2d 47, 49-50 (4th Cir. 1989) (stating that, when evaluating the effect of a number of impairments on a disability claimant, “the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them”). Accordingly, the ALJ must make specific and well-articulated findings as to the effect of a combination of impairments when determining whether an individual is disabled. Id. at 50 (“As a corollary to this rule, the ALJ must adequately explain his or her evaluation of the combined effects of the impairments.”). If the ALJ finds a combination of impairments to be severe, “the combined impact of the impairments shall be considered throughout the disability determination process.” 42 U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G).
C. Meets or Equals an Impairment Listed in the Listings of Impairments
If a claimant's impairment or combination of impairments meets or medically equals the criteria of a listing found at 20 C.F.R. Pt. 404, Subpt. P, App.1 and meets the duration requirement found at 20 C.F.R. § 416.909, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience. 20 C.F.R. § 416.920(a)(4)(iii), (d).
The Listing of Impairments is applicable to SSI claims pursuant to 20 C.F.R. §§ 416.911, 416.925.
D. Past Relevant Work
The assessment of a claimant's ability to perform past relevant work “reflect[s] the statute's focus on the functional capacity retained by the claimant.” Pass v. Chater, 65 F.3d 1200, 1204 (4th Cir. 1995). At this step of the evaluation, the ALJ compares the claimant's residual functional capacity with the physical and mental demands of the kind of work he has done in the past to determine whether the claimant has the residual functional capacity to do his past work. 20 C.F.R. § 416.960(b).
Residual functional capacity is “the most [a claimant] can still do despite [his] limitations.” 20 C.F.R. § 416.945(a)(1).
E. Other Work
As previously stated, once the ALJ finds that a claimant cannot return to her prior work, the burden of proof shifts to the Commissioner to establish that the claimant could perform other work that exists in the national economy. See 20 C.F.R. § 416.920(f)-(g); Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992). To meet this burden, the Commissioner may sometimes rely exclusively on the Medical-Vocational Guidelines (the “grids”). Exclusive reliance on the “grids” is appropriate where the claimant suffers primarily from an exertional impairment, without significant nonexertional factors. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e); Gory v. Schweiker, 712 F.2d 929, 930-31 (4th Cir. 1983) (stating that exclusive reliance on the grids is appropriate in cases involving exertional limitations). When a claimant suffers from both exertional and nonexertional limitations, the grids may serve only as guidelines. Gory, 712 F.2d at 931. In such a case, the Commissioner must use a VE to establish the claimant's ability to perform other work. 20 C.F.R. § 416.969a; see Walker, 889 F.2d at 49-50 (“Because we have found that the grids cannot be relied upon to show conclusively that claimant is not disabled, when the case is remanded it will be incumbent upon the [Commissioner] to prove by expert vocational testimony that despite the combination of exertional and nonexertional impairments, the claimant retains the ability to perform specific jobs which exist in the national economy.”). The purpose of using a VE is “to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform.” Walker, 889 F.2d at 50. For the VE's testimony to be relevant, “it must be based upon a consideration of all other evidence in the record, . . . and it must be in response to proper hypothetical questions which fairly set out all of claimant's impairments.” Id. (citations omitted).
An exertional limitation is one that affects the claimant's ability to meet the strength requirements of jobs. 20 C.F.R. § 416.969a(a). A nonexertional limitation is one that affects the ability to meet the demands of the job other than the strength demands. Id. Examples of nonexertional limitations include but are not limited to difficulty functioning because of being nervous, anxious, or depressed; difficulty maintaining attention or concentrating; difficulty understanding or remembering detailed instructions; difficulty seeing or hearing. Id. § 416.969a(c)(1).
II. Developing the Record
The ALJ has a duty to fully and fairly develop the record. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). The ALJ is required to inquire fully into each relevant issue. Snyder, 307 F.2d at 520. The performance of this duty is particularly important when a claimant appears without counsel. Marsh v. Harris, 632 F.2d 296, 299 (4th Cir. 1980). In such circumstances, “the ALJ should scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts, . . . being especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited.” Id. (internal quotations and citations omitted).
III. Medical Opinions
For claims filed on or after March 27, 2017, as Plaintiff's is, the applicable regulations require ALJs to consider the persuasiveness of each medical opinion of record in accordance with the following factors: (1) supportability; (2) consistency; (3) relationship with the claimant; (4) specialization; and (5) other factors that tend to support or contradict the opinion. 20 C.F.R. § 416.920c(b), (c). Regarding supportability, “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion . . . the more persuasive the medical opinion will be.” 20 C.F.R. § 416.920c(c)(1). As for the relationship with the claimant, ALJs consider the “length of the treatment relationship,” the “[f]requency of examinations,” the “[p]urpose of the treatment relationship,” the “[e]xtent of the treatment relationship,” and whether the source has examined the claimant. 20 C.F.R. § 416.920c(c)(3).
The new regulations define the term “medical opinion” as “a statement from a medical source about what you can still do despite your impairment(s) and whether you have one or more impairment-related limitations or restrictions.” 20 C.F.R. § 416.913(a)(2).
IV. Medical Tests and Examinations
The ALJ is required to order additional medical tests and exams only when a claimant's medical sources do not give sufficient medical evidence about an impairment to determine whether the claimant is disabled. 20 C.F.R. § 416.917; see also Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986). The regulations are clear: a consultative examination is not required when there is sufficient medical evidence to make a determination on a claimant's disability. 20 C.F.R. § 416.917. Under the regulations, however, the ALJ may determine that a consultative examination or other medical tests are necessary. Id.
V. Pain
Congress has determined that a claimant will not be considered disabled unless he furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing the existence of a medical impairment that could reasonably be expected to produce the pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). Social Security Ruling (“SSR”) 16-3p provides, “[i]n considering the intensity, persistence, and limiting effects of an individual's symptoms, we examine the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record.” Social Security Ruling 16-3p Titles II and XVI: Evaluation of Symptoms In Disability Claims, 82 Fed.Reg. 49,462, 49,464 (Oct. 25, 2017); see also 20 C.F.R. § 416.929(c)(1)-(c)(2) (outlining evaluation of pain).
In evaluating claims of disabling pain, the ALJ must proceed in a two-part analysis. Morgan v. Barnhart, 142 Fed.Appx. 716, 723 (4th Cir. 2005) (unpublished opinion); see also SSR 16-3p, 82 Fed.Reg. at 49,463. First, “the ALJ must determine whether the claimant has produced medical evidence of a ‘medically determinable impairment which could reasonably be expected to produce” the alleged symptoms. Id. (quoting Craig, 76 F.3d at 594); see SSR 16-3p, 82 Fed.Reg. at 49,463. Second, the ALJ must evaluate “the intensity and persistence of an individual's symptoms such as pain and determine the extent to which an individual's symptoms limit his or her ability to perform work-related activities . . . or to function independently.” SSR 16-3p, 82 Fed.Reg. at 49,464; see 20 C.F.R. § 416.928 (noting that the ALJ must consider all of a claimant's statements about his symptoms, including pain, and determine the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence). The factors to consider in evaluating the intensity, persistence, and limiting effects of the claimant's symptoms include the claimant's daily activities; the location, duration, frequency, and intensity of the claimant's pain or other symptoms; factors that precipitate or aggravate the symptoms; the type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken to alleviate pain or other symptoms; treatment, other than medication, the claimant receives or has received for relief of pain or other symptoms; any measures other than treatment the individual uses or has used to relieve pain or other symptoms; and any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms. SSR 16-3p, 82 Fed.Reg. at 49,465-66; see also 20 C.F.R. § 416.929(c). The ALJ is not required to accept a claimant's subjective complaints “to the extent they are inconsistent with the available evidence, including objective evidence of the underlying impairment.” Craig, 76 F.3d at 594.
APPLICATION AND ANALYSIS
RFC Evaluation
Plaintiff argues that the ALJ's RFC is not supported by substantial evidence because her decision did not 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.” [Doc. 10 at 12 (internal quotation marks omitted).] Specifically, Plaintiff contends she testified to requiring frequent trips to the restroom due to one of her medications, but that the ALJ “offered no specific finding to show how she reconciled [Plaintiff's] frequent restroom breaks when formulating [Plaintiff's] RFC.” [Id. at 13.] The Court agrees.
Testimony of Plaintiff and the VE
Plaintiff testified that she stopped working in late 2006 because of congestive heart failure, and then that in 2007 she had a major stroke. [R. 35-36.] She testified that she often has shortness of breath, especially when she has been sitting up for a long period, and that she has to lie down. [R. 39.] She also testified that one of her medications is a diuretic, so that she is “constantly going back and forth to the restroom.” [R. 39.] She specifically testified that she has to go to the bathroom three or four times every two hours, seven days a week. [R. 44-45.]
Plaintiff explained that although her most recent cardiologic record stated that she had been taking her diuretic only four to five times per week, she had began taking it more often since the time of that record. [R. 45.]
At the hearing, the ALJ asked the VE to consider a hypothetical person, age 51, who is able to do at least light work; lift up to 20 pounds occasionally and 10 pounds frequently; sit, stand, and walk six hours of each eight-hour day; never climb ladders, ropes or scaffolds; occasionally climb ramps and stairs; frequently stoop, kneel, crouch, and crawl; but who must avoid concentrated exposure to temperature extremes, high humidity, and hazards and is allowed to change position as needed, possibly one time an hour without losing production or being off task. [R. 48-49.] The VE testified that such a person could not perform Plaintiff's past work but there would be some light, unskilled jobs for the person that exist in the national economy. [R. 49-50.] However, the VE testified that if the person also needed to be able to take up to two additional restroom breaks per two-hour block, there would be no jobs available. [R. 51.]
ALJ's Summary of Plaintiff's Allegations
The ALJ provided the following summary of Plaintiff's allegations regarding the intensity, persistence, and limiting effects of her symptoms:
[Plaintiff] alleges disability due to congestive heart failure. [She] testified that she stopped working . . . because of her congestive heart failure, which left her unable to perform her job functions. [Plaintiff] testified that she experienced shortness of breath and fatigue, especially when standing. She stated that she required frequent trips to the restroom due to one of her medications. She indicated that she had to go to the restroom three or four times every two hours. [Plaintiff] testified that she had to lie down a lot throughout the day. She spent most of the day reading or watching television. [She] testified that whenever she had problems or exacerbations of her symptoms, she was told to rest and increase her diuretic. She stated that she could lift up to five pounds. She indicated that she could bend over and pick something up, but could not squat down. [Plaintiff] testified that she had to stop a lot when walking. She stated that she could sit about 30 minutes and stand about 15 minutes. [Plaintiff] testified that she was not saying that she could not perform a sit down job, but that she could not do more than that. In order to alleviate the symptoms of her impairments, [Plaintiff] asserted that she has taken Coreg, Lasix, Losartan, Furosemide, Spironolactone, and a daily aspirin, and she reported frequent urination as a side effect[] of these medications (Ex. C2E; C13E; C14E). [Plaintiff] testified that she had not had any other heart issues, surgeries, or hospitalizations since 2006.[R. 18.]
The ALJ found that the objective findings in the medical evidence did not “provide strong support for [Plaintiff's] allegations of disabling symptoms and limitations.” [R. 18.] The ALJ reasoned as follows:
[Plaintiff] has a history of cardiomyopathy and mild congestive heart failure. Treatment notes indicate that [Plaintiff] had an ejection fraction as low[] ¶ 15 percent in 2007 (Ex. C6F/7). With treatment, she improved to 45 to 50 percent by April 2017 (Ex. C2f/11). An echocardiogram from August 2018 showed that [Plaintiff] had an ejection fraction of 35 to 40 percent (Ex. C2F/6, 8, 18). Her[] left ventricular systolic function was found to be moderately reduced. She had some moderate global hypokinesis of the left ventricle. Her diastolic dysfunction was rated as grade 1 (Ex. C2F/17, 18). An August 2020 electrocardiogram showed a sinus rhythm with an occasional ectopic ventricular beat (Ex. C6F/2). Treatment notes indicate that [Plaintiff] reported dyspnea when walking more than half a mile (Ex. C2F/3). Treatment notes indicate that [Plaintiff's] lungs were clear and that she had normal breath sounds with no wheezes, rhonchi, or rales. Moreover, she had a regular heart rate and rhythm with no murmurs, gallops, or rubs (Ex. C2F/5, 14; C3F/2; C6F/7). Her pulse was normal in all four extremities (Ex. C2F/14; C6F/7). She moved all of her extremities well (Ex. C2F/6; C6F/7). No edema was noted (Ex. C3F/2; C6F/4). [Plaintiff] was noted to have intermittent dyspnea (Ex. C2F/14). Treatment notes indicate that [she] was already on good medical therapy for her heart condition (Ex. C2F/8). Overall, [she] was noted to be stable from a cardiac standpoint. There were no signs or symptoms of decompensated heart failure. [Plaintiff's] doctor advised [her] to follow up in one year (Ex. C6F/7).[R. 18-19.]
The ALJ determined that Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms” but that Plaintiff's “statements concerning the intensity, persistence and limiting effects of these symptoms [we]re not entirely consistent with the medical evidence and other evidence in the record.” [R. 19-20.] The ALJ explained:
[Plaintiff] has described daily activities[] which are not limited to the extent one would expect, given her complaints of disabling symptoms and limitations. [Plaintiff] testified that she could
perform some light household chores such as washing dishes, folding clothes, and making the bed. She stated that she could prepare very simple meals for herself. [She] also testified that she could make short trips to stores to pick up personal items.
Furthermore, the medical evidence of record does not entirely support [Plaintiff's] allegations regarding her physical impairments. [Plaintiff's] subjective reported history cannot substitute for the objective medical evidence contained in the record, which provides a more accurate longitudinal history of [Plaintiff's] conditions. Here, the record does not support [Plaintiff's] allegations of ongoing severe and disabling symptoms. [Plaintiff] has a history of cardiomyopathy and mild congestive heart failure, which she stated goes back to 2006, well before her amended alleged onset date and application date. Cardiovascular testing shows that [Plaintiff's] systolic functioning had improved from a low ejection fraction of 15 percent to 45 to 50 percent after treatment. Despite her allegations of dyspnea, [Plaintiff's] lungs were repeatedly found to be clear and she had normal breath sounds. Moreover, she had a regular heart rate and rhythm. She had normal pulses in all extremities. Treatment notes indicate that [Plaintiff] was stable and did not require more treatment than her medications and annual checkups. The undersigned notes that [Plaintiff's] impairments cause her some ongoing function limitations; however, they have been fully considered and accounted for in the above [RFC].
While treatment notes indicate that [Plaintiff] has received treatment for her alleged health issues, the medical findings fail to support [Plaintiff's] allegation that she is unable to work. [Plaintiff's] cardiomyopathy and mild congestive heart failure warrant limiting her to light work with further postural limitations and preclude the climbing of ladders, ropes, and scaffolds. Moreover, [Plaintiff] must be allowed to change positions once per hour while remaining on task in order to alleviate her symptoms. To avoid exacerbating her symptoms, particularly her shortness of breath, and as a matter of safety, [Plaintiff] must avoid concentrated exposure to temperature extremes, high humidity, and hazards such as dangerous machinery or unprotected heights. As such, the overall evidence indicates that while [Plaintiff's] condition restricts her ability to perform
work-related activity, her condition does not preclude all work activity.[R. 20.]
Discussion
The Court concludes that the ALJ has not adequately explained how Plaintiff's RFC accounted for her stated need to go to the bathroom three or four times every two hours.
Initially, the Court notes that the Commissioner argues that the ALJ is not required to explicitly set out every part of her analysis so long as the reviewing court can understand her reasoning. [Doc. 11 at 13-14.] On that point, the Commissioner is correct. Still, the ALJ must “build an accurate and logical bridge from the evidence to h[er] conclusion,” so that the court may conduct meaningful substantial-evidence review. Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (internal quotation marks omitted). When the court is “left to guess about how the ALJ arrived at his conclusions on [claimant's] ability to perform relevant functions[,] . . . remand is necessary.” Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015); see Fox v. Colvin, 632 Fed.Appx. 750, 755 (4th Cir. 2015) (explaining that it is not the court's “role to speculate as to how the ALJ applied the law to its findings or to hypothesize the ALJ's justifications that would perhaps find support in the record”). .
The Commissioner argues that the ALJ's reasoning can be adequately discerned here. She contends that the ALJ discussed Plaintiff's medical records and the Commissioner points out that those records do not reference a need by Plaintiff to go to the bathroom frequently. [Doc. 11 at 14.] The Commissioner also notes that the ALJ makes the statement, Plaintiff's “subjective reported history cannot substitute for the objective medical evidence contained in the record, which provides a more accurate longitudinal history of [Plaintiff's] condition.” [See id. at 13 (quoting R. 20).]
The Court does not find the Commissioner's argument convincing. The language the Commissioner points to appears in a paragraph discussing the functioning of Plaintiff's heart and lungs. [R. 20.] There is no indication whatsoever that the ALJ believed she was discussing how often Plaintiff's medication required her to go to the bathroom. And given that the ALJ never observed that the medical records she reviewed did not reference Plaintiff's need to go to the bathroom frequently, any conclusion by the Court that the ALJ relied on the lack of such a reference would require unwarranted speculation. See Wooten v. Kijakazi, No. 5:21-cv-548-KJW, 2022 WL 4092439, at *9 (D.S.C. Sept. 7, 2022) (remanding where, although the ALJ recited the relevant evidence, she failed to “link her recitation of the evidence to her RFC findings,” thereby leaving the court to “guess about how [she] arrived at [her conclusions on [the plaintiff's] ability to perform relevant functions” (internal quotation marks omitted)).
The Commissioner also argues that Plaintiff did not offer any evidence that any physician opined that Plaintiff would need extra bathroom breaks and that, in the absence of such evidence, the ALJ was not required to credit Plaintiff's testimony. [Doc. 11 at 13-14.] However, Plaintiff's argument here is not that the ALJ was required to credit her testimony, but rather that he was required to build a logical bridge how she decided not to include any limitation about the need for extra bathroom breaks in her RFC. See Cyr v. Berryhill, No. 1:17-798-CMC-SVH, 2017 WL 6459565, at *10 (D.S.C. Dec. 2017) (“While the ALJ was not required to credit [Plaintiff's testimony supporting restrictions that did not appear in the ALJ's RFC, the ALJ] was required to explain how she determined which of Plaintiff's statements to believe and which to reject.”), Report and Recommendation adopted by 2017 WL 6442195 (D.S.C. Dec. 18, 2017). The Commissioner similarly maintains that the ALJ was not required to adopt the VE's testimony that adding the limitation in question concerning bathroom breaks would preclude all job availability. [Doc. 11 at 13.] Again, however, the issue is not that the ALJ was required to accept the VE's testimony, but simply that the ALJ would need to explain her reasoning.
Additionally, given the ALJ's silence on the issue of whether Plaintiff's need to go to the bathroom was adequately supported by her medical records, the Commissioner's request that the Court affirm on that basis is nothing more than an attempted post-hoc justification. However, “[t]he court cannot look to post-hoc offerings to support the Commissioner's decision.” Canady v. Colvin, No. 5:12-2507-KDW, 2014 WL 4063155, at *3 (D.S.C. Aug. 14, 2014); see Grisom v. Comm'r of Soc. Sec., No. 8:19-cv-02443-BHH-JDA, 2020 WL 3848227, at *11 (D.S.C. June 29, 2020) (“[B]ecause the ALJ has not given any indication in the current decision that she discounted [the physician's] decision based on [the facts identified by the Commissioner on appeal], neither of [the Commissioner's] new justifications would be a proper basis for affirmance.”), Report and Recommendation adopted by 2020 WL 3843564 (D.S.C. July 8, 2020).
In sum, because the ALJ failed to explain how her RFC accounted for Plaintiff's testimony that she would need to go to the bathroom three to four times in a two-hour period, the Court recommends reversing the ALJ's decision and remanding to the agency for further proceedings.
Remaining Allegation of Error
Because the Court finds that the ALJ's error in explaining how Plaintiff's RFC accounted for her testimony that she would need to use the bathroom three or four times in a two-hour period is a sufficient basis to remand this matter for further consideration, the Court declines to address Plaintiff's remaining allegations. See Hancock v. Barnhart, 206 F.Supp.2d 757, 763 n.3 (W.D. Va. 2002). However, on remand, the ALJ should consider Plaintiff's remaining allegation of error.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, it is recommended that the Commissioner's decision be REVERSED and the case is REMANDED to the Commissioner for further administrative action consistent with this Order.
IT IS SO RECOMMENDED.