Opinion
C/A No. 2:19-cv-02833-RMG-MGB
01-11-2021
DIANE WILSON SKIPPER, Plaintiff, v. ANDREW M. SAUL, Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
This case is before the Court for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., concerning the disposition of Social Security cases in this District, and Title 28, United States Code, Section 636(b)(1)(B). Plaintiff Diane Wilson Skipper ("Plaintiff") brought this action pursuant to Section 205(g) of the Social Security Act, as amended, (42 U.S.C. § 405(g)), to obtain judicial review of a final decision of the Commissioner of Social Security Administration (the "Administration") regarding her claim for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act (the "Act"). For the reasons set forth below, the undersigned recommends that the Court vacate the Commissioner's decision and remand for further proceedings.
RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS
Plaintiff was 51 years old on the alleged onset date of March 23, 2012. (R. at 15.) Plaintiff alleged disability due to, inter alia, fibromyalgia, irritable bowel syndrome/diverticulitis, and arthritis. (R. at 176.) Plaintiff has past relevant work as a mortgage closing clerk. (R. at 26.)
Plaintiff applied for DIB on September 19, 2016, alleging disability beginning March 23, 2012. (R. at 15.) Her application was denied initially and on reconsideration. After a hearing before an Administrative Law Judge ("ALJ") on June 15, 2018, the ALJ issued an unfavorable decision on October 10, 2018. (R. at 12-31.) The Appeals Council ("AC") denied Plaintiff's request for review. (R. at 1-6). In making the determination that Plaintiff was not entitled to benefits, the Commissioner adopted the following findings from the ALJ's decision:
(1) The claimant met the insured status requirements of the Social Security Act on December 31, 2017.
(2) The claimant did not engage in substantial gainful activity during the period from her alleged onset date of March 23, 2012 through her date last insured of December 31, 2017 (20 CFR 404.1571 et seq).
(3) Through the date last insured, the claimant had the following severe impairments: degenerative joint disease, right foot, mild; fibromyalgia; subacromial bursitis; history of thyroid cancer; degenerative disc disease, lumbar, mild; obesity; and irritable bowel syndrome (20 CFR 404.1520(c)).
(4) Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
(5) After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a), except she requires the option to stand for 5 minutes after 30 minutes of sitting, while remaining at the work station and staying on-task; occasionally climb ramps/stairs; never climb ladders/ropes/scaffolds; occasionally balance, stoop, kneel, crouch, and crawl; never work at unprotected heights or around moving mechanical parts; and would be off-task 5% of the work day.
(6) Through the date last insured, the claimant was capable of performing past relevant work as a mortgage closing clerk (DOT# 291.362-038), semi-skilled (SVP 5), sedentary extension level. The
work did not require performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565).
(7) The claimant was not under a disability, as defined in the Social Security Act, at any time from March 23, 2012, the alleged onset date, through December 31, 2017, the date last insured (20 CFR 404.1520(f)).
(R. at 17-26.)
Plaintiff subsequently filed a civil action in federal court to obtain judicial review of the unfavorable administrative decision. (Dkt. No. 1.) The matter was referred to the undersigned Magistrate Judge for a Report and Recommendation ("R&R") pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and Title 28, United States Code, Section 636(b)(1)(B).
APPLIPICABLE 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 in the Act 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" twelve months. See 42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, the Act has by regulation reduced the statutory definition of "disability" to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment which equals an illness contained in the Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents him from doing substantial gainful employment. See 20 C.F.R. § 404.1520. If an individual is found not disabled at any step, further inquiry is unnecessary. See 20 C.F.R. § 404.1520(a)(4); see also Hall v. Harris, 658 F.2d 260 (4th Cir. 1981).
The claimant bears the burden of proof with respect to the first four steps of the analysis. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). Once the claimant has established an inability to return to his past relevant work, the burden shifts to the Commissioner to show that the claimant—considering his age, education, work experience, and residual functional capacity—can perform alternative jobs and that such jobs exist in the national economy. See SSR 82-62, 1982 WL 31386, at *3; Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); see also Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016). The Commissioner may satisfy this burden by obtaining testimony from a vocational expert. See Grant, 699 F.2d at 191-92.
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the findings of the Commissioner "are supported by substantial evidence and whether the correct law was applied." Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); see also Woods v. Berryhill, 888 F.3d 686, 691 (4th Cir. 2018); Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015); 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). Consequently, the Act precludes a de novo review of the evidence and requires that the court uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing 42 U.S.C. § 405(g) and Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)); see also Mascio, 780 F.3d at 640; Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012).
Substantial evidence is "more than a mere scintilla of evidence but may be less than a preponderance." Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015) (citing Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012)). "In reviewing for substantial evidence, [the court does] not undertake to reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ]." Hancock, 667 F.3d at 472. "Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ]," not on the reviewing court. Id. However, "[a] factual finding by the ALJ is not binding if it was reached by means of an improper standard or misapplication of the law." Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). ALJs can err in their findings by "cherry-picking" and "misstat[ing][and] mischaracterize[ing]" material facts. Arakas v. Comm'r, Soc. Sec. Admin., No. 19-1540, 2020 WL 7331494, at *10 (4th Cir. Dec. 14, 2020).
DISCUSSION
On appeal, Plaintiff contends that the ALJ erred in failing to properly evaluate several aspects of her disability claim. First, Plaintiff argues that the ALJ improperly weighed the opinions of her treating physicians. (Dkt. No. 21 at 16.) Specifically, Plaintiff asserts that the ALJ improperly discounted the opinion of Dr. John Gould, DO, who opined that Plaintiff was "incapable of 'low stress' work." (Id. at 18.) Such an assertion, Plaintiff argues, is at odds with the ALJ's assessment of Plaintiff's ability to perform her past work. (Id. at 21.)
Second, Plaintiff argues that the ALJ failed to properly evaluate the "waxing and waning" nature of her fibromyalgia. (Id. at 22.) Specifically, Plaintiff argues that the ALJ's evaluation of Plaintiff's fibromyalgia failed to take into account the debilitating nature of the disease, and such the ALJ did not build a "'logical bridge'" between the evidence and his conclusion. (Id. at 25)(citing cases.)
Third, Plaintiff submits that the ALJ improperly relied on testimony from the vocational expert. (Id. at 26). Plaintiff argues that the ALJ "erroneously relied on VE testimony that [Plaintiff] could perform her past relevant work both as she performed it and as it is generally performed . . . [t]he VE testified that the hypothetical individual could perform the work as described in the DOT, but not as she performed it." (Id.) Furthermore, Plaintiff asserts that the ALJ presented the vocational expert with an improper hypothetical that "did not include any time off-task limitations." (Id.)
Fourth, Plaintiff asserts that the ALJ improperly discounted her subjective symptoms in evaluating the severity and the limiting effects of her conditions. (Id. at 27.) Plaintiff specifically asserts that the ALJ improperly discounted her objective statements regarding her severe fibromyalgia. (Id. at 29-30.)
Upon review of the parties' arguments, the ALJ's decision, and the record as a whole, the undersigned finds that the ALJ's decision should be reversed. Thus, as set forth in greater detail below, the undersigned finds that the ALJ's decision is not supported by substantial evidence and therefore recommends that the Court reverse and remand his decision.
I. Plaintiff's Subjective Complaints and Fibromyalgia
Plaintiff argues that the ALJ improperly evaluated her subjective complaints. In evaluating a claimant's subjective symptoms, the ALJ follows a two-step process under which he must first determine whether there is an underlying medically determinable physical or mental impairment that could reasonably be expected to produce the claimant's pain or other symptoms. Tyler v. Berryhill, No. 8:15-CV-04457-JDA, 2017 WL 461008, at *9 (D.S.C. Feb. 3, 2017). After determining the presence of an impairment, the ALJ must evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which those symptoms limited her functioning. Id. at *10.
The ALJ's decision "must contain specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms." SSR 16-3p, 2017 WL 5180304, at *9. Specifically, the ALJ's decision must "consider all of the evidence in an individual's record," including, but not limited to, the claimant's daily activities; the location, duration, frequency, and intensity of the claimant's pain or other symptoms; factors that precipitate and 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 restriction due to pain or other symptoms. SSR 16-3p, at *2; see also 20 C.F.R. §§ 404.1529(c) and 416.929(c). The Court of Appeals for the Fourth Circuit recently held that ALJs "may not rely on objective medical evidence (or the lack thereof)—even as just one of multiple factors—to discount a claimant's subjective complaints regarding symptoms of fibromyalgia or some other disease that does not produce such evidence." Arakas, 2020 WL 7331494 at * 8. Furthermore, "disability claimants are entitled to rely exclusively on subjective evidence to prove the severity, persistence, and limiting effects of their symptoms." Id.
Social Security Ruling 16-3p rescinded and superseded SSR 96-7p, on March 28, 2016. See 2017 WL 5180304, at *13. Plaintiff's applications were adjudicated by the ALJ after March 28, 2016, and, thus, the undersigned has analyzed Plaintiff's allegations under SSR 16-3p. The undersigned notes that SSR 16-3p discontinues use of the term "credibility;" however, "the methodology required by both SSR 16-3p and SSR 96-7, are quite similar. Under either, the ALJ is required to consider the claimant's report of his own symptoms against the backdrop of the entire case record." Best v. Berryhill, No. 0:15-CV-02990-DCN, 2017 WL 835350, at *4 n.3 (D.S.C. Mar. 3, 2017) (internal citations omitted).
Plaintiff alleges that she suffers from fibromyalgia, irritable bowel syndrome/ diverticulitis, and arthritis. (R. at 176.) In discussing these impairments, specifically fibromyalgia, in his decision, the ALJ discounted Plaintiff's statements and testimony and stated the following:
When a person seeks disability benefits due in whole or in part to fibromyalgia, we must properly consider the person's symptoms and ensure there is sufficient objective evidence to support a finding that the person's impairments so limits the person's functional abilities that it precludes him or her from performing any substantial gainful activity. In accordance with Social Security ruling 12-2p, fibromyalgia is considered a severe impairment. Accordingly, the undersigned has fully considered fibromyalgia in the context of the overall record evidence in making this decision, but the signs, symptoms, and laboratory findings on record are not equivalent or representative of listing-level severity.(R. at 21)(errors in original). The ALJ elaborated that "some complaints [regarding the intensity, persistence, and limiting effects of Plaintiff's pain and conditions] seem exaggerated" and that:
Regarding the claimant's fibromyalgia, the undersigned has taken into consideration the claimant's longitudinal history of widespread pain, positive tender points on physical examination found bilaterally and both above and below the waist, and evidence that other disorders that could cause the symptoms or signs were excluded. In this instance, the record states that the claimant left work due to fibromyalgia symptoms in 2012. In 2012, she was treated with Cymbalta, which caused insomnia and weakness, and was therefore changed to Amitriptyline. She was sleeping better and experiencing less pain. In June 2014, the record notes that her condition was stable, however she continued to experience chronic pain when sitting or standing for long periods, causing significant discomfort. Records from June 2015 also show her condition as stable, but fluctuating with weather. In September 2016, the record notes that she was not taking any non-steroidal medications for her symptoms. As of March 2017, her chronic daily pain became more limiting than it was previously with mobility becoming an issue. She began limiting her medications to Tylenol Arthritis, and no longer used aspirin due to stomach issues. In May 2018, her medications were adjusted to compensate for additional pain symptoms. The May 2018 record also notes that there are "multiple tender points positive" without much explanation. Thus, the claimant's symptoms would minimally limit routine movement and necessary physical activity in a work environment.
(R. at 23-24)(emphasis added)(internal citations omitted).
Thus, the ALJ reviewed the objective medical evidence and the record and found Plaintiff's subjective complaints about her fibromyalgia to be inconsistent with the objective medical records, thereby discounting the limiting effects and severity of her fibromyalgia. In contrast, the record indicates that Plaintiff offered many subjective complaints regarding severe fibromyalgia, which could reasonably be assumed to impact her ability to perform work. At the hearing, when queried about her fibromyalgia, Plaintiff stated that she has pain "every day," with some days being worse than others. (R. at 40.) Furthermore, Plaintiff stated:
Some days I feel like I actually am getting the flu with the aches and the pains and feverish feeling from the fibromyalgia. Of course I lay down at these times. There's times I feel the low pressure in the air is on my body. It's like a ton of bricks on my body. And you feel exhaustion like you can't even hardly get up and go to the bathroom . . . [i]t's a deep aching pain. . . the pain hurts to the bone . . .[t]here's times when I take a deep breath and my ribs feel like somebody has beat me with a bat.(R. at 40-41.)
Plaintiff elaborated that her fibromyalgia pain makes it difficult to use the bathroom, to the point that Plaintiff and her husband installed handicapped toilets in their home. (Id.) Plaintiff testified that she uses muscle relaxers on days with severe pain, but the muscle relaxers require her to "lay down" because they prevent her from doing "anything." (Id.) Plaintiff testified that she often has "bad" days four days a week. (Id.) Plaintiff testified that even on "good" days, she is still unable to complete tasks like cleaning her home without breaks. (R. at 42.) Plaintiff also testified that her irritable bowel syndrome is "part" of her fibromyalgia, worse when she becomes "anxious or nervous." (R. at 43.) Plaintiff even testified that her fibromyalgia limits her ability to drive, as she cannot "stay focused when [she is] in bad pain with the fibromyalgia." (R. at 44.)
Fibromyalgia presents with subjective symptoms. As the Fourth Circuit held in Arakas, it is improper to discount a plaintiff's subjective complaints about an impairment in evaluating the limiting effects and severity of that impairment. The Court specifically discussed fibromyalgia, stating that "insistence on objective medical evidence . . . reveals [a] misunderstanding of fibromyalgia, which does not produce such evidence other than trigger points." Id. at 16. Proper consideration of Plaintiff's extensive subjective fibromyalgia complaints could reasonably impact her residual functional capacity assessment, as these subjective complaints shed light on the limiting effects and severity of the condition, which courts often misunderstand. Therefore, pursuant to Arakas, the ALJ's decision to discount Plaintiff's subjective complaints in favor of objective evidence indicating that Plaintiff's fibromyalgia was not severe was improper. Remand is warranted.
II. Plaintiff's Remaining Arguments
Regarding Plaintiff's additional allegations of error, the undersigned finds that the ALJ's failure to properly weigh Plaintiff's subjective complaints in determining the limiting effects and severity of her fibromyalgia is a sufficient basis on which to remand the case to the Commissioner and, thus, the undersigned declines to specifically address Plaintiff's additional allegations of error. However, the Commissioner should take into consideration Plaintiff's remaining allegations of error.
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that the Commissioner's decision be REMANDED, in order for the ALJ to properly evaluate Plaintiff's subjective complaints regarding her fibromyalgia in determining the limiting effects and severity of that condition.
IT IS SO RECOMMENDED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE January 11, 2021
Charleston, South Carolina
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
Post Office Box 835
Charleston, South Carolina 29402
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).