Opinion
5:20-CV-258-FL
08-08-2021
CAROL TARRANT, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security Administration, [1] Defendant.
MEMORANDUM & RECOMMENDATION
KIMBERLY A. SWANK United States Magistrate Judge
This matter is before the court on the parties' cross motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Carol Tarrant (“Plaintiff”) filed this action pursuant to 42 U.S.C. §§ 405(g) & 1383(c)(3) seeking judicial review of the denial of her application for supplemental security income (“SSI”). The time for filing responsive briefs has expired, and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, the undersigned recommends that Plaintiff's Motion for Judgment on the Pleadings [DE #20] be granted, Defendant's Motion for Judgment on the Pleadings [DE #23] be denied, and the case be remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings.
Plaintiff's complaint [DE #5] states she applied for disability insurance benefits (“DIB”) as well as SSI, but the record and Plaintiff's motion for judgment on the pleadings and supporting memorandum do not reflect this.
S TATEMENT OF THE CASE
Plaintiff applied for SSI on September 23, 2016, and subsequently amended her alleged onset date to September 23, 2016. (R. 39, 198-206, 214.) The application was denied initially and upon reconsideration, and a request for hearing was filed. (R. 39, 103, 119, 135.) A video hearing was held on February 21, 2019, before Administrative Law Judge (“ALJ”) Theodore Kim, who issued an unfavorable ruling on April 17, 2019. (R. 36-59, 62-86.) On May 5, 2020, 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. § 416.1481. Plaintiff then filed for review of the unfavorable decision pursuant to 42 U.S.C. §§ 405(g) & 1383(c)(3).
DISCUSSION
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. § 416.920(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.” Ha l 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, 634-35 (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”). At step one, the ALJ found Plaintiff has not engaged in substantial gainful activity since the application date. (R. 41) Next, the ALJ determined Plaintiff had the severe impairments of asthma, obesity, fibromyalgia, degenerative disc disease of the lumbar spine with spondylosis and radiculopathy, somatic dysfunction of the lumbar, thoracic and cervical region, degenerative disc disease of the cervical spine with spondylosis, left hip degenerative joint disease, left shoulder degeneration, major depressive disorder, adjustment disorder with mixed anxiety and depressed mood, anxiety disorder, and attention-deficit/hyperactivity disorder. (R. 41-42.) The ALJ found the following impairments to be non-severe insofar as the ALJ found the record not to show these conditions more than minimally limited Plaintiff's ability to engage in basic work activity for at least twelve months: neoplasm of major salivary glands, hypertension, keratosis, migraine, hematuria, sleep apnea, trigeminal neuralgia, degenerative joint disease, chronic pain syndrome, and myofascial pain syndrome. (R. 42.)
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. 42.) The ALJ expressly considered Listings 1.02, 1.04, 3.02, 11.02, 11.14, 12.04, 12.06, and 12.15. (R. 42-45.) The ALJ also expressly considered Plaintiff's obesity in accord with SSR 02-1p and her fibromyalgia in accord with SSR 12-2p. (R. 43-44.)
Before proceeding to step four, the ALJ assessed Plaintiff's residual functional capacity (“RFC”) and found that Plaintiff had
the residual functional capacity to perform light work, as defined in 20 CFR 416.967(b) except she must be allowed to stand up to five minutes after every thirty minutes of sitting and to sit down up to five minutes after every thirty minutes of standing, while remaining on task. She can frequently operate hand controls, reach, push or pull, handle, finger, and feel with both upper extremities. She can occasionally push or pull, or operate foot controls with both lower extremities. She can occasionally kneel, crouch, stoop, balance and crawl. She can occasionally climb stairs and ramps. She can never climb ladders, ropes and scaffolds and can never be exposed to unprotected heights and moving mechanical parts. She can have occasional exposure to dust, mists, gases, noxious odors, fumes, pulmonary irritants and poor ventilation. She can tolerate occasional exposure to vibration. In addition, she is able to understand, carry out and remember simple instructions, and [make] simple work-related decisions. She will be off task ten percent of the workday.(R. 45-46.) In making this assessment, the ALJ stated he had considered Plaintiff's symptoms and the evidence (both “objective medical” and “other”) based on the requirements of 20 C.F.R. § 416.929 and SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017), evaluated the opinion evidence in accord with 20 C.F.R. § 416.927, 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. 46.)
At step four, the ALJ concluded that Plaintiff had no past relevant work. (R. 51.) At step five, upon considering Plaintiff's age, education, work experience, and RFC, the ALJ determined there are jobs that exist in significant numbers in the national economy that Plaintiff could perform, namely: garment sorter (DOT #222.687-014), folder (DOT #686.685-030), and produce weigher (DOT #299.587-010). (R. 51-52.) The ALJ concluded that Plaintiff had not been disabled under the Act since September 23, 2016, the date Plaintiff's application was filed. (R. 52.)
IV. Plaintiff's Arguments
Plaintiff contends the Commissioner erred by:
(A) failing to properly incorporate Plaintiff's ability to stay on task into the RFC, or to explain why the RFC limited Plaintiff to only 10% off-task time during a workday, where the ALJ found that Plaintiff was moderately impaired in her ability to concentrate, persist, or maintain pace and where Plaintiff testified to more significant limitations caused by her trigeminal neuralgia, and more generally failing to explain how the moderate limitations in concentration, persistence, and pace impacted the RFC (Pl.'s Mem. Supp. Mot. J. Pldgs. [DE #21] at 9-18); and
(B) improperly analyzing the credibility of Plaintiff's statements regarding her symptoms and “plac[ing] a premium on the existence of objective medical evidence, ” (id. at 18-20).
The Commissioner contends (A) the ALJ's 10% off-task finding was supported by substantial evidence and “adequate logical explanation” and the ALJ conducted a proper function-by-function assessment of Plaintiff's abilities, including her moderate limitation in concentration, persistence, and pace, in compliance with Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015) (Def.'s Mem. Supp. Mot. J. Pldgs. [DE #24] at 6- 16); and (B) the ALJ conducted a proper symptom-evaluation based on Plaintiff's own statements and the objective evidence (id. at 16-20). For the reasons explained below, the undersigned disagrees with the Commissioner as to the first issue (A) and, therefore, recommends the matter be remanded.
A. Moderate Limitation in Concentrating, Persisting, or Maintaining Pace
Plaintiff makes two separate but related arguments regarding the ALJ's finding that she is moderately limited in concentrating, persisting, and maintaining pace. First, she contends the ALJ failed to explain why he concluded Plaintiff would only be off-task 10% of a workday. This is relevant because (i) the Vocational Expert (“VE”) testified that being off-task for 20% of a workday would preclude work (R. 84) and (ii) Plaintiff testified that her trigeminal neuralgia causes frequent (three times per week) pain in her face/head that requires her to lay down (R. 68-69). Second, and more generally, Plaintiff contends the RFC's restrictions to understanding, carrying out, and remembering simple instructions; making simple work-related decisions; and being off-task 10% of the workday do not account for her moderate limitations in concentrating, persisting, and maintaining pace, contrary to Mascio, 780 F.3d at 638. In contrast, the Commissioner contends the 10% off-task finding is supported by substantial evidence and the ALJ's explanation of the impact of Plaintiff's moderate restriction in concentration, persistence, and pace is sufficient under Fourth Circuit precedent.
Treatment notes from Dr. Nailesh D. Dave, MD, dated November 21, 2018, indicate an increase in Plaintiff's Lyrica prescription “for trigeminal neuralgia pain.” (R. 1381.)
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. § 416.945(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 determining the RFC, the ALJ considers an individual's ability to meet the physical, mental, sensory, and other requirements of work. 20 C.F.R. § 416.945(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. § 416.945(a)(3).
‘“[A] proper RFC analysis proceeds in the following order: ‘(1) evidence, (2) logical explanation, and (3) conclusion.'” Dowling v. Comm'r of SSA, 986 F.3d 377, 388 (4th Cir. 2021) (quoting Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019)). “The ALJ's ‘assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions' listed in the regulations.” Ho liday v. Saul, No. 4:19-CV-56-FL, 2020 WL 5743091, at *2 (E.D. N.C. Sept. 25, 2020) (quoting Monroe v. Colvin, 826 F.3d 176, 179 (4th Cir. 2016), and Mascio, 780 F.3d at 636). This analysis of a claimant's functional abilities requires an ALJ to discuss whether the claimant can perform the work-related functions for an entire workday. It is only after this function-by-function analysis has been completed that the ALJ can make an appropriate RFC determination. Holliday, 2020 WL 5743091, at *2 (citing Mascio, 780 F.3d at 636; Thomas, 916 F.3d at 311; and Woods v. Berryhi l
, 888 F.3d 686, 689 (4th Cir. 2018); see also Dowling, 986 F.3d at 388 (faulting an ALJ for conducting an improper functional analysis under Thomas, 916 F.3d at 311-12). 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.
An ALJ must “include a narrative discussion describing how the evidence supports each conclusion” in the RFC. Monroe, 826 F.3d at 189 (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 Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)). “[M]eaningful review is frustrated when an ALJ goes straight from listing evidence to stating a conclusion.” Thomas, 916 F.3d at 311 (citing Woods, 888 F.3d at 694). 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, ” id. 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).
The Fourth Circuit held in Mascio that “an ALJ does not account ‘for a claimant's limitation in concentration, persistence, and pace by restricting the hypothetical question to simple, routine tasks or unskilled work.” Mascio, 780 F.3d at 638 (quoting Winschel v. Comm'r of SSA, 631 F.3d 1176, 1180 (11th Cir. 2011)). The court explained that “the ability to perform simple tasks differs from the ability to stay on task” and that “[o]nly the latter limitation would account for a claimant's limitation in concentration, persistence, or pace.” Mascio, 780 F.3d at 638. While there may be times when a “moderate limitation in concentration, persistence, or pace at step three does not translate into a limitation in . . . residual functional capacity, ” the ALJ must explain why this is so. Id.; see also Shinaberry v. Saul, 952 F.3d 113, 121-22 (4th Cir. 2020) (applying Mascio and holding that an ALJ sufficiently explained why the limitation to simple, routine, and repetitive tasks accounted for the claimant's moderate limitations in concentration, persistence, and pace).
Here, the ALJ's finding regarding Plaintiff's ability to remain on-task throughout an entire workday is not sufficiently explained. The explanation the ALJ gave for the off-task finding is as follows:
[T]aking into consideration the combined effect of all of [Plaintiff]'s mental impairments including her major depressive disorder; adjustment disorder with mixed anxiety and depressed mood; anxiety disorder; and attention-deficit/hyperactivity disorder (ADHD), including pain, [Plaintiff] is limited to understanding, carrying out, and remembering simple instructions and making simple work related decisions (17F; 24F). She will also be off task 10% of the workday. (Id.)(R. 51.) As this court has noted before, failure of an ALJ to explain how he arrived at a finding of a claimant's off-task percentage can preclude the ability to conduct meaningful review. Marsha l v. Saul, No. 5:20-CV-55-FL, 2020 WL 7390486, at *5 (E.D. N.C. Nov. 19, 2020), mem. & recommendation adopted by 2020 WL 7388433 (E.D. N.C. Dec. 16, 2020); Higgs v. Berryhi
l
, No. 4:18-CV-22-FL, 2019 WL 848730, at *4-5 (E.D. N.C. Jan. 10, 2019) (no explanation given for a 10% off-task finding by ALJ where claimant's testimony as to migraine headaches so severe she had to stay in bed three days per week was corroborated by medical and non-medical evidence), mem. & recommendation adopted by 2019 WL 845406 (E.D. N.C. Feb. 21, 2019). Here, Plaintiff testified that her trigeminal neuralgia pain occurred at least three days per week and was so severe she had to “lay down and cover up.” (R. 68-69.) Notes from a treating doctor in November 2018 (about three months earlier) indicate an increase in Plaintiff's Lyrica pain medication because Plaintiff's trigeminal neuralgia pain was so severe at that point in time. (R. 1381.) Plaintiff had also previously reported to her mental health care provider that the pain she experiences from her trigeminal neuralgia contributes to her mental health problems. (R. 1178.) Given Plaintiff's testimony regarding the trigeminal neuralgia pain and the other evidence tending to corroborate this, the explanation provided by the ALJ as to the 10% off-task finding is insufficient to enable the court to trace the reasoning which resulted in this finding. See Higgs, 2019 WL 848730, at *5. Furthermore, the ALJ's citation to exclusively mental health records as a basis for the off-task finding is puzzling given the testimony and evidence regarding trigeminal neuralgia. At the least, this is a material ambiguity that the ALJ should have addressed. See SSR 96-8p, 1996 WL 374184, at *7.The ALJ's citations are to Exhibits 17F and 24F of the administrative record, which are treatment records from The Haymount Institute for Psychological Services, a provider of mental health services to Plaintiff. (R. 58.)
The Commissioner's arguments to the contrary (Def.'s Mem. Supp. Mot. J. Pldgs. at 7-10) are not persuasive for the following reasons. First, the ALJ's decision to pick a “round” off-task percentage does not provide the logical explanation required by Fourth Circuit precedent. Nor does the decision not to make an off-task percentage finding “just under that which the [VE] testified would render the individual [unemployable].” The ALJ was obligated to provide logical explanation for his findings; he failed to do this regarding the off-task finding, and comparing and contrasting the actual finding with a hypothetical finding does not discharge that duty. Cf. Heather U. v. Saul, No. 1:19-CV-392-CBD, 2020 WL 1820098, at *5 (D. Md. Apr. 10, 2020) (“However, at no point does the ALJ discuss why ‘Plaintiff would be off task 10 percent of an eight-hour workday.' How did the ALJ determine that Plaintiff would be off task for 10 percent and not 20 percent?” (citation omitted)). Lastly, the argument that the ALJ gave Plaintiff the “benefit of the doubt” by assessing a 10% off-task finding does not clarify the issue because it is unclear how and in what respect the ALJ did this. See Adrian v. Berryhi l
, No. 4:17-CV-99-KS, 2018 WL 4293368, at *4 (E.D. N.C. Sept. 10, 2018). Moreover, a review of the page of the ALJ's decision referenced by the Commissioner indicates that the ALJ “gave Plaintiff the benefit of the doubt” regarding a non-examining state agency consultant's opinion that Plaintiff had no severe mental impairments. (Compare Def. Mem. Supp. Mot. J. Pldgs. at 9 with R. 50.)
Regarding the more general issue as to the impact of Plaintiff's moderate limitation in concentration, persistence, and pace on the RFC, the Commissioner is correct that “Mascio does not mandate that every ALJ decision with findings of moderate limitations in concentration, persistence, or pace have a detailed analysis of the ability to stay on task.” (Def.'s Mem. Supp. Mot. J. Pldgs. at 12 (citing cases).) But the ALJ's decision must nevertheless show the required function-by-function assessment and set forth a logical explanation for the RFC findings. See Dowling, 986 F.3d at 388. Here, the ALJ simply said that Plaintiff's ability to watch television, care for her kids, and play video games during the day “indicate[s] that [Plaintiff] is able to concentrate, pay attention, and maintain pace.” (R. 49.) That analysis seems in tension with the step-two finding of moderate limitation in concentration, persistence, and pace (R. 45) and does not explain why and to what extent Plaintiff is limited in these areas. Here, unlike Mascio, 780 F.3d at 638, the step-two finding regarding concentration, persistence, and pace translated into an RFC limitation, but the logical analysis for why the particular RFC limitations were assessed is not apparent, see Id. at 636-37. Furthermore, the Commissioner's arguments that such analysis is present are problematic because they involve post-hoc rationalization (Def.'s Mem. Supp. Mot. J. Pldgs. at 14-15) and factual assertions which appear in tension with other evidence in the record (compare Id. with R. 69, 75, 718). See Arakas v. Comm'r of SSA, 983 F.3d 83, 109 (4th Cir. 2020) (post-hoc rationalization of ALJ's findings not permitted); Patterson, 846 F.3d at 662 (ALJ must harmonize conflicting evidence).
While the ALJ's decision here does contain references to 20 C.F.R. § 416.945 and SSR 96-8p (R. 41, 46), which distinguishes it from the ALJ's decision at issue in Dowling, 986 F.3d at 387-88, it is not clear that the function-by-function assessment here would suffice under that line of precedent, which includes the holding from Mascio that remand is 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.
For the foregoing reasons, the ALJ's RFC findings are not supported by sufficient explanation to permit meaningful review, and, therefore, remand is recommended.
B. Credibility and Objective Medical Evidence
To the extent Plaintiff's second argument depends on the claim that the ALJ improperly evaluated Plaintiff's statements about the severity of her symptoms, that issue can be addressed on remand through a proper RFC explanation. However, Plaintiff also advances an argument that the Fourth Circuit's recent holding in Arakas, 983 F.3d at 96-98, regarding the proper evaluation of fibromyalgia, should be extrapolated to trigeminal neuralgia. (Pl.'s Mem. Supp. Mot. J. Pldgs. at 19 & n.5.) That is an argument that requires more significant factual development and which this court is not in a position to address on review.
C ONCLUSION
For the reasons stated above, it is RECOMMENDED that Plaintiff's Motion for Judgment on the Pleadings [DE #20] be GRANTED, Defendant's Motion for Judgment on the Pleadings [DE #23] be DENIED, and the Commissioner's decision be remanded for further consideration.
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 August 23, 2021, 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. (Dec. 2019).
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).