Opinion
2:23-CV-3-FL
01-21-2024
MARY THERESE SMITH, Plaintiff, v. MARTIN O'MALLEY, Commissioner of Social Security Administration, Defendant.[1]
MEMORANDUM & RECOMMENDATION
KIMBERLY A. SWANK UNITED STATES MAGISTRATE JUDGE
This matter is before the court for judicial review pursuant to 42 U.S.C. § 405(g) of a final administrative decision denying Plaintiff's application for a period of disability and disability insurance benefits (“DIB”). The parties have fully briefed the matter pursuant to the Supplemental Rules for Social Security Actions, and this matter is ripe for decision. Having carefully reviewed the administrative record and the parties' briefs, the undersigned recommends that the matter be remanded to the Commissioner pursuant to sentence four.
STATEMENT OF THE CASE
Plaintiff applied for DIB on March 5, 2020, with an alleged onset date of July 11, 2019. (R. 28, 235-38.) The application was denied initially and upon reconsideration, and a request for hearing was filed. (R. 28, 119, 136, 158-59.) A hearing was held on January 12, 2022, before Administrative Law Judge (“ALJ”) Anne-Marie A. Ofori-Acquaah, who issued an unfavorable ruling on February 2, 2022. (R. 25-81.) On November 14, 2022, the Appeals Council denied Plaintiff's request for review. (R. 1-7.) At that time, the ALJ's decision became the final decision of the Commissioner. See 20 C.F.R. § 404.981. On January 11, 2023, Plaintiff filed a civil action in this court seeking judicial review of the final administrative decision pursuant to 42 U.S.C. § 405.
D ISCUSSION
I. Standard of Review
The scope of judicial review of a final agency decision denying disability benefits is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; [i]t consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971), and Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)) (citations omitted) (alteration in original). “In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig, 76 F.3d at 589) (first and second alterations in original). Rather, in conducting the “substantial evidence” inquiry, the court determines whether the Commissioner has considered all relevant evidence and sufficiently explained the weight accorded to the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
II. Disability Determination
In making a disability determination, the Commissioner utilizes a five-step evaluation process. The Commissioner asks, sequentially, whether the claimant: (1) is engaged in substantial gainful activity; (2) has a severe impairment; (3) has an impairment that meets or equals the requirements of an impairment listed in 20 C.F.R. Part 404, Subpart P, App. 1; (4) can perform the requirements of past work; and, if not, (5) based on the claimant's age, work experience, and residual functional capacity can adjust to other work that exists in significant numbers in the national economy. See 20 C.F.R. §404.1520(a)(4); Albright v. Comm'r of SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Pass v. Chater, 65 F.3d 1200, 1203 (4th. Cir. 1995). At the fifth step, the burden shifts to the Commissioner to show that other work exists in the national economy that the claimant can perform. Id. In making this determination, the ALJ must decide “whether the claimant is able to perform other work considering both [the claimant's residual functional capacity] and [the claimant's] vocational capabilities (age, education, and past work experience) to adjust to a new job.” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981). “If the Commissioner meets [this] burden, the ALJ finds the claimant not disabled and denies the application for benefits.” Mascio v. Colvin, 780 F.3d 632, 635 (4th Cir. 2015).
III. ALJ's Findings
Applying the five-step, sequential evaluation process, the ALJ found Plaintiff “not disabled” as defined in the Social Security Act (“the Act”). As a preliminary matter, the ALJ found Plaintiff met the insured status requirements of the Act through September 30, 2023. (R. 31.) At step one, the ALJ found Plaintiff has not engaged in substantial gainful activity since July 11, 2019, the alleged onset date. (Id.) Next, the ALJ determined Plaintiff has the severe impairments of postural orthostatic tachycardia syndrome (“POTS”), Ehlers-Danlos syndrome, mast-cell activation syndrome, degenerative disc disease, obesity, obstructive sleep apnea, osteoarthritis, anxiety, and depression. (Id.)
At step three, the ALJ concluded Plaintiff's impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, App. 1. (R. 32.) The ALJ expressly considered Listings 1.15, 1.16, 12.04, 12.06, and also considered Plaintiff's obstructive sleep apnea in connection with Listing 3.00(P) and Plaintiff's POTS, Ehlers-Danlos syndrome, and mast-cell activation syndrome in connection with the above listings and Listing 4.00 and related. (R. 32-34.)
Before proceeding to step four, the ALJ assessed Plaintiff's residual functional capacity (“RFC”) and found that Plaintiff has
the residual functional capacity to perform light work, as defined in 20 CFR 404.1567(b) except she can occasionally climb ramps and stairs but never climb ladders, ropes, or scaffolds. She can occasionally stoop, kneel, crouch and crawl. She can tolerate no exposure to unprotected heights or moving mechanical parts. She is limited to performing simple, routine, repetitive rate tasks that are not performed at a production rate pace. She can make simple work-related decisions.(R. 35.) In making this assessment, the ALJ stated that she considered Plaintiff's symptoms and the evidence (both “objective medical” and “other”), based on the requirements of 20 C.F.R. § 404.1529 and SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017), and found Plaintiff's statements concerning the intensity, persistence, and limiting effects of Plaintiff's symptoms “not entirely consistent with the medical evidence and other evidence in the record.” (R. 35, 38-39.)
At step four, the ALJ concluded that Plaintiff was unable to perform any past relevant work. (R. 42.) At step five, the ALJ determined, based upon Plaintiff's age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, namely: garment sorter (DOT #222.687-014), ticket taker (DOT #344.667-010), and office helper (DOT #239.567-010). (R. 43.) The ALJ concluded that Plaintiff has not been disabled under the Act from July 11, 2019, the alleged onset date, through February 2, 2022. (Id.)
IV. Plaintiff's Argument
Plaintiff contends the ALJ improperly evaluated the medical opinions of Dr. Miriam Selph, Psy.D, and Kimberly Stabingas, PA. (Pl.'s Br. [DE #12] at 12-30; Pl.'s Reply [DE #15] at 1-7.) Both of these medical providers opined that Plaintiff's impairments imposed more significant work-related functional limitations in comparison to the RFC assessed by the ALJ. (R. 2851-53 (Dr. Selph), 2854-57 (PA Stabingas).) Specifically, Plaintiff contends the ALJ improperly evaluated Plaintiff's need for a service animal, which PA Stabingas' medical opinions explicitly recommended (R. 1901 (July 2017 opinion recommending service animal based on Plaintiff's Ehlers-Danlos syndrome, anxiety, chronic fatigue, and migraines)) and endorsed the continued use of (R. 2855-56 (December 2021 opinion explaining history of Plaintiff's service animal usage and concomitant benefits)). (Pl.'s Br. at 23-24, 2730; Pl.'s Reply at 6.) In contrast, the Commissioner contends that the ALJ properly evaluated the medical opinions and that substantial evidence supports the RFC assessment. (Comm'r's Br. [DE #14] at 7-20.) For the reasons explained below, the undersigned agrees with Plaintiff and, therefore, recommends remand.
The RFC is an administrative assessment of “an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis” despite impairments and related symptoms. SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996); see also 20 C.F.R. § 404.1545(a)(1). “A ‘regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule.” SSR 96-8p, 1996 WL 374184, at *1. In assessing an individual's RFC, the ALJ considers an individual's ability to meet the physical, mental, sensory, and other requirements of work. 20 C.F.R. § 404.1545(a)(4). It is based upon all relevant evidence, which may include the claimant's own description of limitations from alleged symptoms. SSR 96-8p, 1996 WL 374184, at *5; 20 C.F.R. § 404.1545(a)(3). If necessary, an ALJ must “explain how any material inconsistences or ambiguities in the evidence were considered and resolved.” SSR 96-8p, 1996 WL 374184, at *7. In fulfilling the obligation to consider all relevant evidence, an ALJ “cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding.” Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017) (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)).
An ALJ must “include a narrative discussion describing how the evidence supports each conclusion” in the RFC. Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting Mascio, 780 F.3d at 636). The ALJ must specifically explain how certain pieces of evidence support particular conclusions and “discuss[ ] . . . which evidence the ALJ found credible and why.” Monroe, 826 F.3d at 189 (quoting Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013)). The Fourth Circuit has interpreted this to require an ALJ to “build an accurate and logical bridge from the evidence to his conclusion.” Monroe, 826 F.3d at 189 (quoting Cliffordv. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)); see also Arakas v. Comm'r of SSA, 983 F.3d 83, 95 (4th Cir. 2020). ALJs must explain their RFC findings regarding contested functional abilities when conducting the required function-by-function analysis. See Dowling v. Comm'r of SSA, 986 F.3d 377, 388-89 (4th Cir. 2021).
“[A] proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion [M]eaningful review is frustrated when an ALJ goes straight from listing evidence to stating a conclusion.” Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019) (citing Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018)). Simply put, this means an ALJ must “[s]how his work.” Patterson v. Comm'r of SSA, 846 F.3d 656, 663 (4th Cir. 2017) (applying same principle to an ALJ's listing analysis). Such analysis-“[h]armonizing conflicting evidence and bolstering inconclusive findings,” Patterson, 846 F.3d at 662-is a “necessary predicate” to determining whether substantial evidence supports the Commissioner's findings, Monroe, 826 F.3d at 189 (quoting Radford, 734 F.3d at 295). Where a court is “left to guess about how the ALJ arrived at his conclusions on [a claimant's] ability to perform relevant functions . . ., remand is necessary.” Mascio, 780 F.3d at 637.
When evaluating medical opinions, the ALJ must consider factors set forth in 20 C.F.R. § 404.1520c(b), (c)(1)-(5). See generally Oakes v. Kijakazi, 70 F.4th 207, 212 (4th Cir. 2023) (summarizing the medical opinion evaluation process for disability claims filed after March 27, 2017). “The ALJ is not required to explain how she considered each of the relevant factors; instead, when articulating her finding about whether an opinion is persuasive, the ALJ need only explain how she considered ‘the most important factors' of supportability and consistency.” Corbin v. Kijakazi, No. 2:20-CV-60-M, 2022 WL 990487, at *2 (E.D. N.C. Mar. 31, 2022). “Supportability is the degree to which a provider supports their opinion with relevant, objective medical evidence and explanation, and consistency is the degree to which a provider's opinion is consistent with the evidence of other medical and non-medical sources in the record.” Oakes, 70 F.4th at 212. Generally, the ALJ must explain how the evidence led to her conclusions. Arakas, 983 F.3d at 95 (“To pass muster, ALJs must ‘build an accurate and logical bridge' from the evidence to their conclusions.” (quoting Monroe, 826 F.3d at 189)); see also Mascio, 780 F.3d at 637 (remand is necessary when a reviewing court is “left to guess about how the ALJ arrived at his conclusions”).
Medical opinions are “statement[s] from a medical source about what [a claimant] can still do despite [the claimant's] impairment(s),” including a claimant's “ability to perform physical demands of work activities, such as sitting, standing, walking, lifting, carrying, pushing, pulling, or other physical functions” and “ability to perform mental demands of work activities, such as understanding; remembering; maintaining concentration, persistence, or pace; carrying out instructions; or responding appropriately to supervision, co-workers, or work pressures.” 20 C.F.R. § 404.1513(a)(2)(i), (ii).
The record contains several pieces of evidence regarding Plaintiff's need for and continued use of a service animal. In July 2017, PA Stabingas opined:
[Plaintiff would] benefit tremendously from having a service animal. [Plaintiff] has an extensive history of [Ehlers-Danlos syndrome], chronic fatigue and migraines. Her conditions sometimes cause severe fluctuations in her day and having a mobility assistance service animal along side would help in many ways. One of the biggest hurdles we face is gait abnormalities and proprioception issues. Having this animal could ultimately help prevent any serious injuries or if an injury did occur, this animal could help assist [Plaintiff] with getting the help she needed. Lastly, our goal is for this animal to also help assist with [Plaintiff] staying independent and helping her achieve [activities of daily living] by herself for as long as possible.(R. 1901.) In another medical opinion issued more than four years later, PA Stabingas explained that Plaintiff “applied for and was granted a service animal in 2017” and that Plaintiff's use of the service animal has been beneficial. (R. 2855-56.) The record includes at least one physical therapy treatment record indicating that Plaintiff appeared for a physical therapy evaluation with her service animal. (R. 2119 (also indicating Plaintiff exhibited “gait and balance impairment”).) Lastly, during the hearing before the ALJ, the issue of Plaintiff's service animal arose several times and was incorporated in a hypothetical question posed to the Vocational Expert. (R. 56, 64, 70-71, 80.) Plaintiff's testimony regarding her service animal largely appears to track the reasons documented in PA Stabingas' opinions. (Compare R. 56, 64, 70-71 with R. 1901, 2855-56.)
The extent of ALJ Ofori-Acquaah's discussion of Plaintiff's need for a service animal is (i) a general discrediting of PA Stabingas' medical opinions because “the medical records of [PA Stabingas'] office showed consistently normal findings on physical examination consistent with the assessments of normal range of motion, normal sensation, normal motor strength, and a normal gait without balance issues” and (ii) the statement that PA Stabingas' opinions regarding the service-animal need “do not constitute opinions regarding [Plaintiff's] work related ability.” (R. 41.) The ALJ included no citations to the record or legal authority to support these reasons for discrediting PA Stabingas' opinions. (Id.)
There are several problems with the ALJ's analysis of the service animal issue that prevent meaningful review. First, this is not a situation where the ALJ was unaware about the service animal issue; the issue was front and center during the hearing and in PA Stabingas' medical opinions. Compare Cordell v. Saul, No. 3:19-CV-47, 2019 WL 6257994, at *18 (N.D. W.Va. Nov. 4, 2019) (finding that an ALJ “did not have a duty to inquire into the use of a service animal because the ALJ did not know that the service dog existed nor did the ALJ's duty to investigate extend to matters of which he was not adequately informed”), Report & Recommendation adopted sub nom. Cordell v. Comm'r of SSA, 2019 WL 6255498 (N.D. W.Va. Nov. 22, 2019).
Second, the ALJ's statement that PA Stabingas' medical opinions regarding the service animal issue “do not constitute opinions regarding [Plaintiff's] work related ability” runs contrary to the Commissioner's definition of medical opinion, see 20 C.F.R. § 404.1513(a)(2), and the language in the medical opinions explaining that the service animal is needed in connection with Plaintiff's “gait abnormalities and proprioception issues” related to her Ehlers-Danlos syndrome (R. 1901, 2855-56). It strains credulity to think that gait, balance, and proprioception issues related to Ehlers-Danlos syndrome would not be related to Plaintiff's “ability to perform physical demands of work activities, such as sitting, standing, walking, lifting, carrying, pushing, pulling or other physical functions.” 20 C.F.R. § 404.1513(a)(2)(i).
Third, there was sufficient evidence before the ALJ to require the ALJ to specifically address the medical necessity of Plaintiff's service animal. As other district courts within the Fourth Circuit have noted, the Fourth Circuit has yet to opine on the standard an ALJ must apply to consider a disability claimant's need for a service animal in the claimant's RFC. Shue v. Comm'r of SSA, No. 1:22-CV-961-WEF, 2023 WL 3727935, at *3 (E.D. Va. May 30, 2023) (citing Cordell, 2019 WL 6257994, at *18); Early v. Kijakazi, No. 5:21-CV-96-KDB, 2022 WL 2057467, at *5 (W.D. N.C. June 7, 2022) (citing Cordell, 2019 WL 6257994, at *18); Cordell, 2019 WL 6257994, at *18 (first citing Santos v. Colvin, No. 3:12-CV-5827-KLS, 2013 WL 5176846 (W.D. Wash. Sept. 12, 2013); then citing Payano v. Colvin, No. 2:15-CV-594- RFB-GWF, 2017 WL 4778593 (D. Nev. Oct. 23, 2017); and then citing Rentfro v. Colvin, No. 3:14-CV-3015, 2015 WL 12868081 (C.D. Ill. Oct. 21, 2015)). Nevertheless, the undersigned finds persuasive the standard articulated in Shue that “a service animal need only be considered in the RFC analysis if there is evidence the record that the service animal is medically necessary to the claimant.” Shue, 2023 WL 3727935, at *3, 5 (applying Rogers v. Kijakazi, 62 F.4th 872, 881 (4th Cir. 2023), to conclude that “if the record taken as a whole presents ‘relevant' and ‘significan[t]' evidence that a service dog may be medically necessary, then the ALJ must address the issue and explain their findings as to medical necessity on the record”). Here, there are two medical opinions from a treating provider (one “tremendously” recommending a service animal and another explaining the benefits of that animal four years after its acquisition), some evidence from other providers of Plaintiff's use of a service animal, and testimony before the ALJ about the use of the service animal and its hypothetical impact at step five of the disability evaluation process. (R. 56, 64, 70-71, 80, 1901, 2119, 2855-56.) This is sufficient evidence, taken as a whole, to require the ALJ to address the service animal issue and explain her findings as to medical necessity on the record. See Shue, 2023 WL 3727935, at *5-6; compare Cordell, 2019 WL 6257994, at *18 (noting that a prescription for a service animal will necessitate considering whether the service animal is medically necessary but that “[g]enerally, a letter from a medical provider that suggests an individual's use of a service dog, without further testimony or documentation of the individual's need and use of the service animal, is insufficient to establish that the service dog is medically necessary”). Whether or not PA Stabingas' July 2017 medical opinion is considered a prescription for a service animal, that opinion, in conjunction with the December 2021 medical opinion, treatment records, and Plaintiff's testimony is sufficient to require the ALJ to squarely address this issue. See Cordell, 2019 WL 6257994, at *18. ALJ Ofori-Acquaah's analysis of this issue is insufficient to permit meaningful review. (See R. 41.) Accordingly, remand is required.
Plaintiff also argues that additional errors infect the ALJ's analysis of the medical opinion of Plaintiff's psychotherapist, Dr. Selph, and PA Stabingas' medical opinions. (Pl.'s Br. 13-27). The ALJ found the medical opinion of Dr. Selph unpersuasive because it was “inconsistent with the consistently normal findings [Dr. Selph] noted on mental status examinations and the overall normal findings in the longitudinal record.” (R. 41 (citing numerous portions of the record).) Plaintiff correctly notes that the ALJ's discussion of Dr. Selph's opinion does not include a discussion of the supportability factor. See Oakes, 70 F.4th at 212. Plaintiff also points out evidence in Dr. Selph's treatment records and other treatment records that tends to support and be consistent with Dr. Selph's medical opinion. (Pl.'s Br. at 1721.) It is unclear from the ALJ's opinion how she reconciled this evidence. See Patterson, 846 F.3d at 662; Monroe, 826 F.3d at 189.
The ALJ's discussion of PA Stabingas' December 2021 medical opinion is similarly problematic. As noted above, the ALJ cited no record evidence to support her statement that Dr. Stabingas' medical records “showed consistently normal findings on physical examination consistent with the assessments of normal range of motion, normal sensation, normal motor strength, and a normal gait without balance issues.” (See R. 41.) Furthermore, it is not clear why normal findings of range of motion, sensation, and motor strength would be relevant to discounting PA Stabingas' opinion given Plaintiff's impairments. For example, consistent with Plaintiff's testimony and PA Stabingas' medical opinion, Ehlers-Danlos syndrome typically causes joint hypermobility. See Ehlers-Danlos s., Stedman's Medical Dictionary 1753 (27th ed. 2000); (R. 35 (ALJ's summary of Plaintiff's testimony regarding symptoms)). Moreover, there is at least some record evidence from other medical sources documenting Plaintiff's gait instability and abnormality. (R. 2119.) It is unclear from the ALJ's opinion how she reconciled this evidence. See Patterson, 846 F.3d at 662; Monroe, 826 F.3d at 189.
C ONCLUSION
For the reasons stated above, it is RECOMMENDED that the Commissioner's decision be REVERSED and the matter be remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until February 5, 2024, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. (May 2023).
A party that does not file written objections to the Memorandum and Recommendation by the foregoing deadline, will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, a party's failure to file written objections by the foregoing deadline may bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).