Opinion
C/A No.: 1:19-1399-DCC-SVH
04-03-2020
Jennifer L. Tedder, Plaintiff, v. Andrew M. Saul, Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
This appeal from a denial of social security benefits is before the court for a Report and Recommendation ("Report") pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether he applied the proper legal standards. For the reasons that follow, the undersigned recommends that the Commissioner's decision be reversed and remanded for further proceedings as set forth herein. I. Relevant Background
A. Procedural History
On July 6, 2015, Plaintiff protectively filed applications for DIB and SSI in which she alleged her disability began on October 1, 2009. Tr. at 243-45, 246-51. Her applications were denied initially and upon reconsideration. Tr. at 169-72, 173-76, 177-81. On January 17, 2018, Plaintiff had a video hearing before Administrative Law Judge ("ALJ") Richard LaFata. Tr. at 36-96 (Hr'g Tr.). The ALJ issued an unfavorable decision on May 8, 2018, finding Plaintiff was not disabled within the meaning of the Act. Tr. at 12-35. Subsequently, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. Tr. at 1-6. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on May 14, 2019. [ECF No. 1].
B. Plaintiff's Background and Medical History
1. Background
Plaintiff was 39 years old at the time of the hearing. Tr. at 97. She completed high school. Tr. at 285. Her past relevant work ("PRW") was as a bookkeeper, a cashier, a housekeeper, a shipper for a textile company, and a waitress. Id. She alleges she has been unable to work since October 1, 2009. Tr. at 284.
2. Medical History
On May 7, 2009, Plaintiff presented to William Joel Cook, M.D. ("Dr. Cook"), in the dermatological surgery department at the Medical University of South Carolina ("MUSC"). Tr. at 344. She reported a history of multiple basal cell carcinomas that required resection. Id. She complained of lesions on her left temple, right posterior shoulder, and right hip. Id. Dr. Cook biopsied all three areas. Id.
On May 28, 2009, Dr. Cook performed Mohs surgery to remove a basal cell carcinoma from Plaintiff's left temple. Tr. at 341-43.
On August 14, 2009, Dr. Cook biopsied a lesion on Plaintiff's right leg. Tr. at 336. It was benign. Tr. at 335.
On January 11, 2010, Plaintiff presented to Nicholas Papajohn, M.D. ("Dr. Papajohn"), for examination of lesions on her right shoulder and left hip. Tr. at 330. Dr. Papajohn performed shave biopsy that revealed basal cell carcinoma in both areas. Id.
On February 18, 2010, Dr. Cook performed Mohs surgery to remove lesions from Plaintiff's right upper chest and left lateral hip. Tr. at 325-27.
Plaintiff presented to Dr. Papajohn for examination of lesions on her bilateral shoulders and central chest on March 22, 2010. Tr. at 322-23. Dr. Papajohn performed punch biopsy on the lesions on Plaintiff's right shoulder and central chest and shave biopsy on the lesion on her left posterior shoulder. Tr. at 323.
On April 26, 2010, Dr. Cook performed Mohs surgery to excise basal cell carcinoma from Plaintiff's bilateral shoulders. Tr. at 317-19.
On May 6, 2010, Dr. Papajohn performed shave biopsy of lesions on Plaintiff's right upper back, right anterior shoulder, left posterior knee, and left mid-back. Tr. at 317. The biopsies revealed basal cell carcinoma. Id. Dr. Papajohn indicated he would treat Plaintiff with Aldara for six weeks. Id.
On October 28, 2014, Plaintiff requested a blood pressure check. Tr. at 372. She complained Metoprolol caused nausea. Id. Her blood pressure was 117/68 mm/Hg. Id. James Vest, M.D. ("Dr. Vest"), assessed hypotension, seasonal affective disorder, panic attacks, and gastroesophageal reflux disease ("GERD"). Id. He discontinued Metoprolol and prescribed Xanax and Omeprazole. Id.
On February 4, 2015, Plaintiff complained to Dr. Vest of posttraumatic stress disorder ("PTSD"), difficulty sleeping, numbness, tingling, pain, nausea, and blacking out. Tr. at 371. She endorsed panic attacks. Id. Dr. Vest prescribed Xanax 1 mg four times a day for panic attacks and Paxil 20 mg for PTSD and referred Plaintiff to an oncologist for recurrent basal cell carcinoma. Id.
Plaintiff presented to oncologist Sara E. Adams, M.D. ("Dr. Adams"), as a new patient on February 17, 2015. Tr. at 400. She endorsed severe anxiety secondary to a history of many basal cell carcinomas and multiple excision procedures. Id. She indicated she discovered new lesions on a weekly basis and was too anxious to undergo additional surgical procedures. Id. She stated her mother had a history of multiple skin cancers, other family members developed and died of various types of cancer, and her father was murdered in front of her, causing her to develop PTSD. Id. Plaintiff reported taking Xanax regularly and felt it was decreasing her cognitive functioning and harming her memory. Id. She endorsed diffuse weakness, muscle aches, pain, and insomnia. Id. Dr. Adams observed several lesions. Tr. at 401. She indicated that because Plaintiff was unwilling to undergo additional surgery, her only option was chemotherapy using Vismodegib. Id. She explained over 50% of patients prescribed Vismodegib with Plaintiff's diagnosis discontinued the medication because of side effects that included alopecia, muscle cramps, nausea, vomiting, and weight loss. Id.
On February 25, 2015, Plaintiff complained of nausea, vomiting, and chronic diarrhea. Tr. at 401. Dr. Adams recommended Plaintiff undergo genetic counseling. Tr. at 402.
Plaintiff presented to Elizabeth Sherertz, M.D. ("Dr. Sherertz"), for possible recurrent basal skin cancer on March 2, 2015. Tr. at 387. She reported a history of over 50 basal cell carcinomas, as well as several Mohs surgeries and other procedures. Id. Dr. Sherertz observed "clinically atypical 2-4 mm basal cell carcinomas in the right frontal scalp, right supraclavicular neck, adjacent to the vermillion on the right lower leg, several on her right lower back and one on her right ankle." Id. She assessed basal cell nevus syndrome variant, otherwise known as Gorlin syndrome, and prescribed Vismodegib. Tr. at 388.
Plaintiff participated in a telehealth visit with Debra White, M.D. ("Dr. White"), for a psychiatric medical assessment on March 12, 2015. Tr. at 417. She reported anxiety and panic attacks that had worsened over the prior six months, following a physical altercation between her boyfriend and her 17-year-old daughter. Id. She described periods of intense anxiety, increased heart rate, sweating, nausea, vomiting, and diarrhea that were typically exacerbated by being in crowds outside her home. Id. She stated she experienced the symptoms approximately once a week. Id. She indicated she had developed agoraphobic tendencies, such as inability to drive herself, social isolation, anticipatory anxiety, and anhedonia. Id. She stated she became easily overwhelmed and worried about everything. Id. She endorsed poor sleep, crying spells, decreased appetite, poor concentration, and poor frustration tolerance. Id. Dr. White noted the following abnormalities on mental status exam: hyperactive behavior; intense eye contact; pressured speech; tangential and circumstantial thought process; anxious mood; and mildly-impaired attention and concentration. Id. She assessed panic disorder with agoraphobia and history of PTSD and indicated a global assessment of functioning ("GAF") score of 60. Id. She ordered Paxil, Xanax, and Topamax. Tr. at 418.
The GAF scale is used to track clinical progress of individuals with respect to psychological, social, and occupational functioning. American Psychiatric Association: Diagnostic & Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000 ("DSM-IV-TR"). The GAF scale provides 10-point ranges of assessment based on symptom severity and level of functioning. Id. If an individual's symptom severity and level of functioning are discordant, the GAF score reflects the worse of the two. Id.
A GAF score of 51-60 indicates "moderate symptoms (e.g., circumstantial speech and occasional panic attacks) OR moderate difficulty in social or occupational functioning (e.g., few friends, conflicts with peers or coworkers)." DSM-IV-TR.
On March 31, 2015, Dr. Adams indicated recent biopsy results showed recurrent basal cell carcinoma on Plaintiff's back. Tr.at 402. Plaintiff indicated she was tolerating Vismodegib with occasional muscle cramps, mild nausea, and hair loss. Id. She reported increased energy, but complained of chronic vomiting and diarrhea. Id. Dr. Adams indicated all the basal cell carcinomas over Plaintiff's body had either disappeared or significantly decreased in size. Tr. at 402-03. She continued Vismodegib. Tr. at 403.
On May 12, 2015, Plaintiff continued to endorse nausea, vomiting, and chronic diarrhea. Tr. at 404. She complained of "fairly severe muscle cramps," but was otherwise tolerating Vismodegib well. Id. Dr. Adams noted all the basal cell carcinomas over Plaintiff's body had either disappeared or significantly decreased in size and she had developed no new lesions. Id. Plaintiff reported dysgeusia, mild nausea, and fatigue, but denied that the side effects were interfering with her quality of life. Id. She complained of occasional urinary incontinence, but was reluctant to take medication that would lead to increased dry mouth. Id. She indicated she had been approved for Medicaid and requested Dr. Adams refer her for genetic counseling, as her prior insurer declined to cover it. Id. Dr. Adams continued Vismodegib and referred Plaintiff to MUSC for genetic counseling. Tr. at 404-05.
Plaintiff followed up with Dr. Sherertz on June 8, 2015. Tr. at 389. She reported visiting the ER after an episode of muscle cramping and dehydration and improving after receiving fluids. Id. Dr. Sherertz noted no evidence of residual basal cell carcinoma, but observed several warts, lipomas, and other skin anomalies. Id. She performed cryosurgery on the warts on Plaintiff's right ankle and suggested she follow up with podiatry for treatment of a plantar wart. Tr. at 389-90.
On June 9, 2015, Plaintiff complained of nausea and vomiting and indicated she experienced dehydration and near-syncope that necessitated she visit the ER for fluids. Tr. at 405. She indicated she continued to struggle with chronic nausea and vomiting. Id. She denied fever, alopecia, chest pain, and shortness of breath. Id. She admitted she continued to smoke cigarettes. Id. Dr. Adams referred Plaintiff for treatment of chronic nausea and vomiting and instructed her to follow up in two months. Tr. at 406.
On August 5, 2015, state agency consultant Isabella McCall, M.D. ("Dr. McCall"), reviewed the evidence and assessed Plaintiff's physical residual functional capacity ("RFC") as follows: occasionally lift and/or carry 50 pounds; frequently lift and/or carry 25 pounds; stand and/or walk for a total of about six hours in an eight-hour workday; sit for a total of about six hours in an eight-hour workday; frequently climb ramps and stairs, stoop, kneel, crouch, and crawl; occasionally climb ladders, ropes, and scaffolds; and avoid concentrated exposure to bright sunshine and extreme heat. Tr. at 132-35, 145-48.
On June 22, 2015, Plaintiff endorsed some anxiety and side effects from chemotherapy during a medication management appointment at Waccamaw Mental Health ("WMH"). Tr. at 419. She indicated the increased dose of Paxil had improved her sleep and decreased her anxiety. Id. Dr. White observed Plaintiff to be anxious with pressured speech, to have mildly circumstantial thought process, to demonstrate anxious mood, and to have mild impairment to attention and concentration. Id. She assessed a GAF score of 70. Id. She discontinued Topamax and prescribed Paxil 40 mg, Neurontin 300 mg, and Xanax 1 mg. Tr. at 420.
A GAF score of 61-70 indicates "some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, [and] has some meaningful interpersonal relationships." DSM-IV-TR.
On August 12, 2015, state agency consultant Lisa Clausen, Ph.D. ("Dr. Clausen"), reviewed the evidence and completed a psychiatric review technique ("PRT"), evaluating listing 12.06 for anxiety-related disorders. Tr. at 131-32, 144-45. She assessed no repeated episodes of decompensation, mild restriction of activities of daily living ("ADLs"), and moderate difficulties in maintaining social functioning and concentration, persistence, or pace. Tr. at 131, 144. She completed a mental RFC assessment, indicating Plaintiff was moderately limited in her abilities to: carry out detailed instructions; maintain attention and concentration for extended periods; work in coordination with or proximity to others without being distracted by them; complete a normal workday and workweek without interruptions from psychologically-based symptoms; perform at a consistent pace without an unreasonable number and length of rest periods; interact appropriately with the general public; accept instructions and respond appropriately to criticism from supervisors; and get along with coworkers or peers without distracting them or exhibiting behavioral extremes. Tr. at 135-36, 148-49. Dr. Clausen specified:
[Plaintiff] would be able to perform simple short term work instructions on a sustained basis, but may require occasional reminder[s] when attending for extended periods. She may be distracted by others in the workplace due to anxiety and agoraphobia and may need to take an occasional day off work due to psychiatric [symptoms].Tr. at 135-36, 148-49. She further indicated: "[Plaintiff] would function best in situations that preclude ongoing interaction with the general public. [Plaintiff] may have anxiety when dealing with authority figures. [Plaintiff] may exhibit occasional panic s[ymptoms] when working with coworkers or peers." Tr. at 136, 149.
On September 11, 2015, biopsies of Plaintiff's duodenum, stomach, and colon were normal. Tr. at 437.
On September 30, 2015, Plaintiff continued to endorse dysgeusia, mild nausea, fatigue, alopecia, and fairly severe muscle cramps as side effects of Vismodegib. Tr. at 426. Dr. Adams indicated a complete blood count ("CBC") was normal. Tr. at 427. She advised Plaintiff to follow up in two months. Id.
On January 6, 2016, Plaintiff reported a cough with occasional dyspnea on exertion. Tr. at 427. She indicated side effects from Vismodegib that included severe muscle cramps, alopecia, dysgeusia, mild nausea, and fatigue. Tr. at 427-28. Dr. Adams indicated a CBC was normal and instructed Plaintiff to return in two months. Tr. at 428.
Plaintiff complained of difficulty staying asleep on January 20, 2016. Tr. at 443. She endorsed increased irritability, anxiety, panic symptoms, crying, and depressed mood. Id. Kathleen O'Leary, M.D. ("Dr. O'Leary"), observed anxious mood, but otherwise normal findings on mental status exam. Id. She assessed bipolar I disorder, panic disorder, and history of PTSD. Tr. at 444. She discontinued Xanax and prescribed Ativan 2 mg. Id.
On January 25, 2016, Plaintiff followed up with nurse practitioner Robin Niederwerfer, ("NP Niederwerfer"), for nausea, abdominal pain, and diarrhea. Tr. at 432. She reported continued stomach pain and diarrhea and indicated her symptoms were debilitating at times. Tr. at 433. NP Niederwerfer indicated she would request and review records from Plaintiff's recent ER visits. Tr. at 434. She continued Lomotil and provided samples of Creon 36,000. Id. She indicated if the Creon was not helpful, she would request Plaintiff's insurer approve a trial of Xifaxan. Id.
Plaintiff reported improved sleep and stable mood on February 3, 2016. Tr. at 441. Dr. O'Leary noted no abnormalities on mental status exam. Id. She continued Plaintiff's medications. Tr. at 441-42.
On March 16, 2016, Plaintiff reported some irritability after stopping Xanax. Tr. at 470. She complained of feeling tired and waking with anxiety following nightmares. Id. She indicated she was leaving her home to attend her child's tee-ball games. Id. Dr. O'Leary encouraged Plaintiff to attend counseling, and Plaintiff agreed to do so. Id. Dr. O'Leary noted no abnormalities on mental status exam. Id.
On April 26, 2016, state agency medical consultant Carl Anderson, M.D. ("Dr. Anderson"), reviewed the record and assessed Plaintiff's physical RFC as follows: occasionally lift and/or carry 50 pounds; frequently lift and/or carry 25 pounds; stand and/or walk for a total of about six hours in an eight-hour workday; sit for a total of about six hours in an eight-hour workday; frequently climb ramps and stairs, stoop, kneel, crouch, and crawl; occasionally climb ladders, ropes, scaffolds; and avoid concentrated exposure to extreme heat and bright sunlight. Tr. at 106-09.
On April 27, 2016, state agency consultant Janet Boland, Ph.D. ("Dr. Boland"), reviewed the evidence and completed a PRT, evaluating listings 12.06 and 12.08 for personality disorders. Tr. at 104-05. She assessed no repeated episodes of decompensation, mild restriction of ADLs, and moderate difficulties in maintaining social functioning and concentration, persistence, or pace. Tr. at 104. Dr. Boland also completed a mental RFC assessment, indicating moderate limitation in Plaintiff's abilities to: carry out detailed instructions; maintain attention and concentration for extended periods; work in coordination with or in proximity to others without being distracted by them; complete a normal workday and workweek without interruptions from psychologically-based symptoms; perform at a consistent pace without an unreasonable number and length of rest periods; interact appropriately with the general public; accept instructions and respond appropriately to criticism from supervisors; get along with coworkers or peers without distracting them or exhibiting behavioral extremes; and respond appropriately to changes in the work setting. Tr. at 109-11. She wrote:
[Plaintiff] may have difficulty sustaining her concentration and pace on complex tasks. However, she should be able to attend to and perform simple tasks without special supervision. She can attend work regularly, but may miss an occasional day due to her mental conditions. She can relate appropriately to supervisors and co-workers, however she may be better suited for jobs that do not require regular work with the general public. She can make simple work-related decisions and occupational adjustments, adhere to basic standards for hygiene and behavior, protect herself from normal work-place safety hazards and use public transportation.Tr. at 110-11. Dr. Boland found there was insufficient evidence to evaluate the presence, severity, and limiting effects of Plaintiff's mental impairments prior to her date last insured of December 31, 2011. Tr. at 119-20.
On June 28, 2016, Dr. Adams indicated Plaintiff had not developed any additional basal cell carcinomas or lesions since starting Vismodegib. Tr. at 445. She stated Plaintiff continued to tolerate Vismodegib well, despite severe muscle cramps, dysgeusia, mild nausea, and fatigue. Id. She indicated Plaintiff's psychiatric medication had been helpful, but Plaintiff continued to struggle with depression. Id. A CBC was normal. Tr. at 446. Dr. Adams instructed Plaintiff to return in two months. Id.
On July 20, 2016, Plaintiff complained of difficulty sleeping and indicated she felt nervous around others, including her children. Tr. at 468. She reported frequent, terrifying nightmares, reduced appetite, and increased smoking. Id. James Gibbs, M.D. ("Dr. Gibbs"), described Plaintiff as having irritable mood and anxious affect. Tr. at 469. He prescribed Prazosin for nightmares and increased Plaintiff's morning dose of Ativan. Tr. at 468.
Plaintiff complained of feeling angry and anxious on September 8, 2016. Tr. at 466. She reported her son had started kindergarten, her dog had recently died of cancer, and her brother had died in a car accident the prior week. Id. She indicated Latuda was no longer effective. Id. She endorsed poor sleep and appetite following her brother's death. Id. Dr. O'Leary described Plaintiff's mood as anxious. Id. She increased Plaintiff's dose of Latuda. Tr. at 467.
On September 20, 2016, Plaintiff continued to treat with Vismodegib and to tolerate muscle cramping, fatigue, dysgeusia, and alopecia. Tr. at 447. A CBC was normal, and Dr. Adams indicated Plaintiff was scheduled for a mammogram. Id. She advised Plaintiff to return in two months. Id.
Plaintiff complained of feeling depressed, and Dr. O'Leary observed her to be tearful on November 22, 2016. Tr. at 464. Plaintiff complained Vismodegib had caused menopausal symptoms, which contributed to her depression. Id. She endorsed poor appetite and nightmares. Id. Dr. O'Leary noted mild impairment to Plaintiff's memory, as well as depressed and anxious mood and affect. Id. Plaintiff described "chemo fog" and indicated she had difficulty remembering recipes. Id. Dr. O'Leary restarted Plaintiff on a low dose of Paxil. Id.
On December 20, 2016, Dr. Adams indicated Plaintiff continued to treat with Vismodegib and to tolerate its side effects. Tr. at 449. She stated Plaintiff's mammogram was benign and her CBC was normal. Tr. at 450. She referred Plaintiff to a dermatologist and instructed her to follow up in two months. Tr. at 449.
Plaintiff reported doing well and requested her medications be continued without change on January 9, 2017. Tr. at 462. Susan Redge, M.D. ("Dr. Redge"), noted no abnormalities on mental status exam. Id. She continued Plaintiff's medications. Tr. at 463.
Plaintiff presented to Gerald Congdon, M.D. ("Dr. Congdon"), for opioid dependence on February 22, 2017. Tr. at 584. She reported a two-year history of heroin and cocaine abuse and indicated she last used heroin one day prior. Id. Dr. Congdon assessed opioid dependence, anxiety, and basal cell carcinoma of the skin. Tr. at 586. He prescribed Subutex and indicated Plaintiff should follow up the following day to switch to Suboxone. Id. He informed Plaintiff of requirements to take medication as directed, undergo urine drug screens, participate in counseling during every office visit, follow up with WMH, and have her prescriptions monitored. Tr. at 586-87. Dr. Congdon prescribed Suboxone on February 23, and 24, 2017. Tr. at 581, 584. Plaintiff attended group therapy required for her addiction management program on February 22, 23, and 24, 2017. Tr. at 486-87.
On February 27, 2017, Plaintiff reported feeling ill because she had not yet taken Suboxone. Tr. at 578. She indicated Suboxone was generally working well and was helping with her muscle cramps. Id. Dr. Congdon refilled Suboxone. Tr. at 579. He again refilled Suboxone on March 6, 13, and 20, 2017. Tr. at 574, 576, 577.
Plaintiff attended group therapy required for her addiction management program on March 6, 13, 20, and 27, 2017. She denied side effects and indicated she was stable on Suboxone on March 27, 2017. Tr. at 571. She endorsed moderate anxiety. Id. Dr. Congdon noted no abnormalities on physical exam. Tr. at 572. He refilled Suboxone. Id.
On March 29, 2017, Dr. Adams indicated Plaintiff continued to take Vismodegib to control basal cell carcinoma and was tolerating side effects that included muscle cramping, fatigue, dysgeusia, and alopecia. Tr. at 451. She recommended Plaintiff drink Gatorade and use muscle relaxers as needed for muscle cramps. Id.
On March 31, 2017, Plaintiff complained of stress incontinence and vaginal cysts. Tr. at 511. She reported accidental urination upon coughing, sneezing, and engaging in any type of physical activity. Id. Dr. Congdon observed Plaintiff to be in minimal distress. Tr. at 512. He prescribed Doxycycline 100 mg and referred Plaintiff to a urologist. Id.
Plaintiff complained of anxiety associated with poor sleep on April 3, 2017. Tr. at 569. Dr. Condon noted no abnormalities on physical exam. Tr. at 570. He refilled Suboxone. Id. Plaintiff attended group therapy sessions on April 3, 10, and 17, 2017. Tr. at 486-87.
During an April 10, 2017 visit to WMH, Plaintiff reported she had recently stopped using heroin and initiated addiction therapy and Suboxone treatment. Tr. at 459. She indicated she had used heroin as often as three times a week over the prior two years, spending $100-$300 a week to support her habit. Id. She indicated she was scared by her desire to use heroin every day. Id. She presented with a letter from Dr. Congdon requesting Dr. O'Leary authorize her to receive Ativan. Id. Dr. O'Leary stated Plaintiff was initially pleasant, but became increasingly irritable and angry when she refused to prescribe Ativan and Ambien and to sign the letter. Id. Plaintiff threatened to stop Suboxone if Dr. O'Leary would not prescribe Ativan. Id. Dr. O'Leary informed Plaintiff the choice was hers and instructed her to taper off Ativan. Id. Plaintiff endorsed worsening urinary incontinence, and Dr. O'Leary noted she was scheduled to see a urologist. Id. Dr. O'Leary instructed Plaintiff to take Melatonin for sleep and prescribed Vistaril for anxiety. Id.
Plaintiff also followed up with Dr. Congdon for Suboxone refill on April 10, 2017. Tr. at 567. She complained Suboxone was not controlling her pain and endorsed moderate anxiety associated she claimed was only alleviated by Ativan. Id. Dr. Congdon prescribed Oxaprozin for joint pain and refilled Suboxone. Tr. at 568.
Plaintiff presented to Walter Frank, III, M.D. ("Dr. Frank"), for bladder dysfunction on April 11, 2017. Tr. at 472. She reported several years' history of urinary incontinence that was associated with physical activity and urgency. Id. She endorsed mild stress incontinence and severe urge incontinence with 10 or more leakage incidents per day. Id. She reported aches and pains, easy bruising, fatigue, memory loss, diarrhea, hemorrhoids, nausea/vomiting, boils, asthma, frequent cough, anxiety, depression, PTSD, and bipolar disorder. Tr. at 473. Dr. Frank noted no abnormalities on physical exam. Id. He assessed mixed incontinence. Tr. at 474.
On April 17, 2017, Plaintiff complained Suboxone did not help control her pain. Tr. at 565. She endorsed moderate anxiety associated with poor sleep and indicated only Ativan provided relief. Id. Dr. Congdon advised Plaintiff to follow up with WMH and noted she was on a schedule to wean off benzodiazepines. Tr. at 566. Plaintiff indicated she would no longer follow up at WMH and intended to "find another doctor who [would] write her benzodiazepines." Id. Dr. Congdon continued Suboxone. Id.
Plaintiff followed up with Dr. Frank for cystoscopy on April 19, 2017. Tr. at 478. The cystoscopy showed detrusor instability, for which Dr. Frank prescribed Vesicare. Tr. at 479.
Plaintiff complained her fibromyalgia-related pain was uncontrolled on May 17, 2017. Tr. at 508. She endorsed fatigue and reported moderate difficulty engaging in regular activities. Tr. at 508-09. Dr. Congdon prescribed Lyrica 100 mg twice a day. Tr. at 509. He refilled Suboxone. Tr. at 564.
Plaintiff attended a group therapy session on May 18, 2017. Tr. at 486-87.
On June 6, 2017, Thomas Dunne, M.D. ("Dr. Dunne"), noted Plaintiff had been taking Suboxone for four months and it was going well. Tr. at 457. Plaintiff reported anxiety and requested to resume Ativan. Id. She endorsed flashbacks of rape and her father's murder. Id. She indicated she felt extremely nervous and jittery since tapering down Ativan and starting Artane for fibromyalgia. Id. Dr. Dunne indicated he would prescribe Ativan at a lower dose and reduce Plaintiff's dose of Artane. Id. He described Plaintiff's appearance as unusual/bizarre and noted her head was shaved and she wore a skimpy skirt and blouse. Id. He noted the following additional abnormalities on mental status exam: suspicious attitude; hyperactive behavior; loud and pressured speech; circumstantial thought process; angry and irritable mood; mildly impaired memory; mildly impaired attention and concentration; and fair insight and judgment. Tr. at 457-58. He assessed bipolar I disorder, panic disorder, severe opioid use disorder, and history of PTSD. Tr. at 458.
On June 16, 2017, Plaintiff complained of anxiety associated with poor sleep. Tr. at 561. She produced a bottle of Ativan that Dr. Dunne had prescribed. Id. Dr. Congdon refilled Suboxone. Tr. at 562. Plaintiff follow up for group therapy on June 18, 2017. Tr. at 486-87.
Plaintiff described moderate burning, tingling, aching, and stinging pain associated with fibromyalgia on June 20, 2017. Tr. at 506. She indicated it was constant and exacerbated by activity and pressure. Id. She reported Lyrica was helpful, but her insurance would only authorize a one-week supply at a time. Id. She indicated Gabapentin had been effective in the past. Id. Regina Evans, M.D. ("Dr. Evans"), noted elevated sensation and "complete body tenderness" on musculoskeletal exam. Tr. at 507. She prescribed Gabapentin 600 mg three times a day for fibromyalgia/chronic pain and continued Suboxone. Id.
On July 11, 2017, Dr. Adams indicated Plaintiff desired to continue Vismodegib, despite side effects that included muscle cramps, fatigue, and dysgeusia. Tr. at 453. She stated she would attempt to find an expert in Gorlin syndrome to discuss whether Plaintiff should continue the medication and also noted that if she stopped the medication, basal cell carcinomas were likely to recur immediately. Id. She prescribed Valium for Plaintiff to use as needed because her muscle cramps were "so severe" and advised her to continue drinking Gatorade and using muscle relaxers as needed. Id.
On July 17, 2017, Plaintiff complained of moderate anxiety associated with poor sleep. Tr. at 559. She indicated Dr. Adams had prescribed Valium. Id. Dr. Congdon continued Suboxone. Tr. at 560. Plaintiff followed up for group therapy visits on July 17, 24, and 31, 2017. Tr. at 486-87.
On July 24, 2017, Plaintiff reported a two-week history of lower extremity edema and a three-day history of shortness of breath. Tr. at 503-04. She described a red rash that appeared on her right leg in the evenings and denied resolution of edema with elevation of her legs. Tr. at 503. She indicated she had engaged in increased standing and sat "for hours on end without moving" during a recent visit to Disney World. Id. Dr. Congdon observed bilateral ankle edema he described as 1-2+ and worse on the right than the left. Tr. at 504. He ordered lab work and referred Plaintiff for bilateral lower extremity ultrasound Doppler to rule out deep venous thrombosis. Tr. at 504-05. He refilled Suboxone. Tr. at 558.
On July 31, 2017, Plaintiff stated her feet had been swollen on the prior day. Tr. at 555. Dr. Congdon stated Plaintiff showed no signs of edema during the visit. Id. He noted venous Doppler and chest x-ray were negative. Id. He continued Suboxone. Tr. at 556.
Plaintiff complained of edema, abdominal pain, chest pain, shortness of breath, and skin infection on August 7, 2017. Tr. at 500. She indicated she had gained 20 pounds over the prior five months. Id. Dr. Congdon noted diminished lung sounds, tenderness to palpation of Plaintiff's abdomen, and pitting edema in her bilateral extremities. Tr. at 501. He prescribed Lasix, Doxycycline, and Diflucan and ordered Doppler studies of Plaintiff's bilateral calves and aorta. Tr. at 501-02. He also continued Suboxone. Tr. at 554. Plaintiff attended group therapy visits on August 7, 15, and 21, 2017. Tr. at 486-87.
Plaintiff reported improved urinary symptoms upon follow up with Dr. Frank on August 14, 2017. Tr. at 481. Dr. Frank assessed urinary incontinence as stable. Tr. at 481-82.
Plaintiff also presented to Dr. Congdon on August 14, 2017. Tr. at 497. She reported pitting edema to her lower extremities, fatigue, chest pain, and shortness of breath. Id. Dr. Congdon described Plaintiff as "anxious appearing." Tr. at 498. He ordered lab work, an echocardiogram, and a computed tomography ("CT") scan of Plaintiff's chest. Id. He refilled Suboxone. Tr. at 552.
Plaintiff reported Suboxone was working well on August 21, 2017. Tr. at 548. Dr. Congdon indicated Plaintiff's most recent urine drug screen was positive for benzodiazepines. Id. Plaintiff presented a bottle of Valium that Dr. Adams had prescribed. Id. Dr. Congdon noted bilateral lower extremity edema. Tr. at 550. He continued Suboxone. Id.
Plaintiff complained of shortness of breath, bilateral lower extremity edema, and leg cramps on August 23, 2017. Tr. at 494. Dr. Congdon observed Plaintiff to be in minimal distress. Id. He recommended elevation for edema and fluids for cramping. Tr. at 495.
On September 6, 2017, Plaintiff reported stability and ability to function socially on her medication regimen. Tr. at 546. Dr. Congdon noted bilateral lower extremity edema. Tr. at 548. He continued Suboxone. Tr. at 547. Plaintiff followed up for group therapy on September 6 and 20, 2017. Tr. at 486-87.
On September 20, 2017, Plaintiff reported Suboxone was working well and was not overly sedating. Tr. at 544. Dr. Congdon noted bilateral lower extremity edema. Tr. at 546. He continued Suboxone. Id.
On October 9, 2017, Plaintiff reported improved incontinence on Ditropan 5 mg twice a day, but indicated stress incontinence had worsened. Tr. at 483. Dr. Frank noted Plaintiff had demonstrated no stress incontinence on cystoscopy. Id. He instructed Plaintiff to follow up if she developed new symptoms. Tr. at 484.
On October 11, 2017, Plaintiff reported her muscle cramps continued to worsen, but she was scared to stop Vismodegib because she was not willing to undergo additional surgical procedures. Tr. at 453. She endorsed shortness of breath and swelling in her feet and indicated her primary care doctor had ruled out deep venous thrombosis. Tr. at 454. Dr. Adams acknowledged swelling of the hands and feet were potential side effects of Vismodegib. Id.
Plaintiff reported "[d]oing okay" on October 17, 2017. Tr. at 455. She requested to stop Paxil and start Prozac. Id. John Allen Pybass, M.D. ("Dr. Pybass"), noted anxious mood, but no other abnormalities on mental status exam. Id. He instructed Plaintiff to taper down Paxil and taper up Prozac. Id. He indicated diagnoses of bipolar I disorder, panic disorder, and opioid use disorder. Id.
On October 20, 2017, Plaintiff reported she was stable on her current medications. Tr. at 542. Dr. Condon continued Suboxone. Tr. at 543.
On November 8, 2017, Plaintiff complained of dull, aching pain secondary to fibromyalgia. Tr. at 490. She endorsed pain everywhere, but indicated pain in her knees and hips had worsened over the prior six months. Id. She requested a referral to a rheumatologist. Id. Dr. Congdon noted anterior hip tenderness and crepitus with knee flexion. Tr. at 491. He prescribed Meloxicam and Gabapentin and referred Plaintiff for x-rays of her hips and knees and to an orthopedist. Tr. at 491-92.
Plaintiff reported she was stable on her medications on November 20, 2017. Tr. at 540. Dr. Congdon continued Suboxone. Tr. at 541.
On November 22, 2017, Dr. Congdon noted Plaintiff's urine drug screen was faintly positive for cocaine. Tr. at 539. Plaintiff indicated her daughter had smoked crack in her bathroom. Id. Dr. Congdon continued Suboxone. Id. Plaintiff attended group therapy visits on November 22 and 29, 2017. Tr. at 486-87.
Plaintiff's urine drug screen was faintly positive for Oxycodone on November 29, 2017. Tr. at 536. She denied taking Oxycodone. Id. Dr. Congdon continued Suboxone, but indicated Plaintiff would be required to undergo weekly drug tests. Tr. at 537.
On December 8, 2017, Plaintiff's urine drug screen was again faintly positive for Oxycodone. Tr. at 534. She denied taking Oxycodone. Id. Dr. Congdon refilled Suboxone. Tr. at 535. Plaintiff attended group therapy on December 8 and 15, 2017. Tr. at 486-87. She reported Suboxone was working well, and Dr. Congdon refilled the medication on December 15, 2017. Tr. at 532-33.
On December 29, 2017, Plaintiff reported improved social functioning on Suboxone. Tr. at 530. She indicated it was not overly sedating. Id. Dr. Congdon continued Suboxone treatment. Tr. at 531.
C. The Administrative Proceedings
1. The Administrative Hearing
Plaintiff's counsel stated he had not filed the Title II application for Plaintiff and believed the evidence supported only the SSI claim. Tr. at 42.
a. Plaintiff's Testimony
At the hearing, Plaintiff said she was standing as she testified because her tailbone hurt from riding for over an hour to the hearing. Tr. at 43. She stated she stopped twice along the way. Id. She testified she lived in a mobile home with her twenty- and five-year-old daughters and her six-year old son. Id. She said the twenty-year-old did not work or go to school, but the younger children were in kindergarten and first grade and did not have any special mental or physical health needs requiring specialized care. Tr. at 43-44. Plaintiff testified on a typical day, she would rise at 6:30 a.m. to wake and dress her younger children and take them to school, before returning home to sleep until 10:30 a.m. Tr. at 44. She said she did a few things around the home before lying down to rest from 1:00 p.m. to 2:00 p.m. Id. She indicated she picked up the children from school at 2:30 p.m. Id. She said after helping her children with homework, she rested until 5:30 p.m., then cooked dinner, helped her children bathe, and put them to bed by 8:00 p.m. Id.
Plaintiff testified she was able to prepare meals, but received help from a friend on bad days. Tr. at 45. She described a bad day as having severe cramping from chemotherapy that disrupted her sleep. Id. She said her pain caused depression and her depression made her fear leaving her home and being around other people. Id. Plaintiff testified she sometimes required help to get her children ready and transport them to school and that her children were typically late by 10 to 15 minutes about four times a month. Tr. at 45, 83-84. She estimated having 10 days of bad mental health per month. Tr. at 45-46.
Plaintiff testified she had taken daily oral chemotherapy of 150 milligrams of Vismodegib for nearly three years. Tr. at 46-47. She described regular, daily cramping in her feet, legs, hips, back, neck, and jaw that sometimes lasted up to 30 minutes. Tr. at 47.
Plaintiff testified that she had experienced cramping every day for three years. Tr. at 49-50. She said the cramping was unpredictable and went on throughout the day. Tr. at 50. She said her doctors were aware of the cramping and prescribed muscle relaxers to help with the pain. Tr. at 49-51. Plaintiff estimated she felt cramping about 75% of the day. Tr. at 51. The ALJ asked how she was able to perform the activities she cited if she was experiencing cramping. Id. Plaintiff said she required help at least one to two times a week. Id.
Plaintiff testified she planned to continue to take the chemotherapy medication until her body rejected it because the medication kept her cancer away. Tr. at 52. Plaintiff testified she was 39 years old, 5'6" tall, and 168 pounds. Tr. at 52-53. She said she had gained 30 pounds from her medications over a three-month period and had weighed the same over the prior five months. Tr. at 53.
Plaintiff testified she graduated from high school and tried to take online courses in criminal justice, but quit after her mind started failing her. Tr. at 53-54. She said she saw a psychiatrist once a month and a psychologist every two weeks. Tr. at 54-55. She testified she had not worked since October 2009. Tr. at 55-56. She testified she had applied for unemployment benefits after she was terminated from Captain Dave's Dockside. Tr. at 56-57. She said she received food stamps and $200 per month in child support. Tr. at 57.
Plaintiff testified she was right-handed, had a driver's license, was able to drive, and drove herself to the hearing. Tr. at 57-58. She said she smoked less than a pack of cigarettes a day over the prior week and had recently received a prescription for Chantix to help her stop smoking prior to undergoing bladder surgery. Tr. at 58-59. Plaintiff testified she had not used alcohol or illegal drugs since starting Suboxone a year prior to the hearing. Tr. at 59-60. She said she had failed one drug screen because she walked into the bathroom where her daughter had been smoking crack. Tr. at 60. She reported seeing a therapist each time she went to the Suboxone clinic, as well as a psychiatrist. Id. Plaintiff described having received a DUI over ten years prior and attending a rehabilitation program. Tr. at 60-61.
Plaintiff testified she worked as a server and a bartender in a restaurant. Tr. at 61-62. She said she worked for Piggly Wiggly for six or seven months from 2004 to 2005 and for a private bar in 2006. Tr. at 62. She said she worked as a bookkeeper/cashier. Tr. at 63. She said she worked for two months in 2004 as a security guard for US Security Associates at the Georgetown Paper Mill. Tr. at 63-64. Plaintiff did not recall having worked in shipping for a textile company. Tr at 64.
In response to questions by her counsel, Plaintiff testified that in addition to cramping, she experienced side effects of fatigue, sleepiness, weakness, muscle loss, and alopecia. Tr. at 65. She said she was unable to lift anything heavier than a container of bleach. Tr. at 64-65. She testified she could stand for 30 minutes before she started hurting. Tr. at 65. She said fibromyalgia contributed to her pain. Tr. at 66. She testified Dr. Craig Downing at Andrews Medical Center diagnosed her with fibromyalgia five years prior, and she had seen a rheumatologist whose name she could not recall. Id. Plaintiff said her treatment primarily came from Coastal Wellness and Coastal Urgent Care, where she saw Dr. Vest and Dr. Congden. Tr. at 68. Plaintiff indicated she did not follow up with the rheumatologist because she did not like being drugged up on pain pills all of the time. Tr. at 68-69. She said she received treatment for fibromyalgia from Dr. Vest. Tr. at 69-70.
Plaintiff said she could sit 10 to 15 minutes before she needing to stand and walk around. Tr. at 71. She indicated her ability to sit was limited by cramps and a prior injury to her tailbone. Id. She said she could not stand for more than 30 minutes due to fatigue. Id. She said she could walk from one end of her mobile home to the other, but could not walk to her mailbox because it was about a football field away. Tr. at 71-72. Plaintiff said it sometimes took her 15 minutes to climb the three steps into her mobile home. Tr. at 72. She denied being able to stoop or crouch. Id. She described having muscle loss from chemotherapy. Tr. at 72-73. She said she first noticed side effects three months after starting chemotherapy. Tr. at 73. She said she hoped to attend physical therapy because she could rise from a kneeling position. Tr. at 74. Plaintiff described cramping in her hands when she texted on her phone that would last a few minutes. Tr. at 74-75. She said she had a computer at home, but did not use it. Tr. at 75. She said she used her telephone for making calls, texting, and Facebook. Id. She said she was not involved in the community because she was too tired and experienced cramping that kept her from going to church. Id. Plaintiff said she sometimes missed or had to reschedule teacher conferences because of being exhausted and tired. Tr. at 76.
In response to questions by her counsel, Plaintiff said it took her 10 minutes to drive her children to and from school. Id. Plaintiff said had to roll down the window and smoke to keep from falling asleep on her way to the hearing. Tr. at 77. She said she stopped along the way to use the restroom because of symptoms of irritable bowel syndrome. Id. She said she used medication for incontinence, but it did not always stop bladder leakage. Id. She described leaving the grocery store to change clothes due to leakage. Tr. at 77-78. Plaintiff stated her children helped with tasks such as retrieving pots and pans. Tr. at 78. She said she could no longer bend over to bathe her children, but provided instructions as they stood in the shower to clean themselves. Tr. at 76-78.
Plaintiff stated she did not bathe when she was depressed. Tr. at 78-79. She estimated she felt depressed and stopped eating an average of one week per month. Tr. at 79. She admitted she had felt suicidal in the past. Id. Plaintiff stated her diagnoses included bipolar I disorder with manic behavior, PTSD, severe anxiety, and depression. Tr. at 80. She testified that when she was in a manic state, at least three days a week, she would talk non-stop, would start projects and not finish them, would pull out pots and pans without returning them to the cabinets, and would make a mess in the house. Tr. at 80-81. She indicated she subsequently felt tired and depressed. Tr. at 81. Plaintiff said she prepared easy meals like sloppy joes, Hamburger Helper, and spaghetti. Tr. at 81-82. She said her 20-year-old daughter did not help around the house, was addicted to drugs, and was hardly ever at home. Tr. at 82. She reported having a friend who helped her, as well as her mother, who lived a couple of hours away, but drove to assist her if she needed help. Id. Plaintiff said her medications caused drowsiness and required her to take daytime naps. Tr. at 83. She said she maintained a nap schedule and felt exhausted the following day if she failed to adhere to it. Id.
b. Vocational Expert Testimony
Vocational Expert ("VE") Tonetta Watson-Coleman reviewed the record and testified at the hearing. Tr. at 87-95. The VE categorized Plaintiff's PRW as (1) a bookkeeper as sedentary, skilled, specific vocational preparation ("SVP") of 6, Dictionary of Occupational Titles ("DOT") number 210.382-014; (2) a waitress as light, semiskilled, SVP of 3, DOT number 311.477-030; (3) a bartender as light, semiskilled, SVP of 3, DOT number 312.474-010; (4) a security guard as light, semiskilled, SVP of 3, DOT number 372.667-038; and (5) a cashier as light, semiskilled, SVP of 3, DOT number 211.462-014. Tr. at 88-89. The ALJ described a hypothetical individual of Plaintiff's vocational profile who could perform light work, except frequently reach in all directions, including overhead, handle, finger, and feel with the bilateral upper extremities; occasionally climb ramps and stairs; never climb ladders, ropes, or scaffolds; occasionally stoop, kneel, and crouch; never crawl, work at unprotected heights, operate a motor vehicle as an occupational requirement, or be exposed to extremes of cold and heat and concentrated humidity or bright sunlight; limited to simple, routine, and repetitive tasks, but not at a production rate pace such as assembly line work; limited to simple work-related decisions; occasionally interact with supervisors and coworkers, but without tandem or teamwork tasks; and should have no contact with the public. Tr. at 89-90. The VE testified the hypothetical individual could not perform Plaintiff's PRW. Tr. at 90. The ALJ asked whether there were any other jobs the hypothetical person could perform. Id. The VE identified the following unskilled, light positions with SVP of 2: (1) work ticket distributor, DOT number 221.667-010; (2) inspector and hand packager, DOT number 559.687-074; and (3) order caller, DOT number 209.667-014, with 306,000, 500,000, and 2.9 million positions available in the national economy, respectively. Id.
The ALJ posed a second hypothetical question that modified the first to limit the individual to sedentary work. Tr. at 91. The VE testified the hypothetical individual could not perform Plaintiff's PRW, but identified the following sedentary, unskilled positions with SVP of 2: (1) document preparer, DOT number 249.587-018; (2) final assembler, DOT number 713.687-018; and (3) addresser, DOT number 209.587-010, with 2.93 million, 230,000, and 67,000, available positions in the national economy, respectively. Id.
The VE testified the light and sedentary positions cited would remain available if the individual required a sit-stand option. Tr. at 91-92. However, she stated there would be no competitive employment available to an individual who (a) would be off-task for 15 percent or more of the workday, (b) would be absent from work two or more days a month, (c) would be incapable of performing work at any exertional level on a consistent basis, eight hours a day, 40 hours a week, or (d) would have a marked loss in the ability to perform one of the basic mental demands of unskilled work. Tr. at 92-94.
2. The ALJ's Findings
In his decision, the ALJ made the following findings of fact and conclusions of law:
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2011.
2. The claimant has not engaged in substantial gainful activity since October 1, 2009, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: basal cell carcinoma-Gorlin's syndrome and post effects of treatment, inflammatory bowel disease (IBD) with urological symptoms, fibromyalgia, anxiety disorder with panic attacks, and bipolar I disorder (20 CFR 404.1520(c) and 416.920(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except the claimant would be limited to frequent bilateral reaching overhead; frequent bilateral reaching in all directions; frequent handling, fingering, and feeling with the bilateral upper extremities; occasional climbing of ramps and stairs; occasional stooping, kneeling, and crouching; never climbing of ladders, ropes, or scaffolds; never crawling; never working on unprotected heights; never operating a motor vehicle as an occupation requirement; avoiding concentrated exposure to extremes of cold, heat, and humidity; never working where claimant would have concentrated exposure to bright sunlight. The claimant is further limited to: simple routine and repetitive tasks but not at a production rate pace; simple work-related decisions with regard to use of judgment and dealing with changes in the work setting; occasional interaction with supervisors and coworkers, but no tandem or teamwork tasks; no public contact work. Any time off task could be accommodated by normal breaks. The claimant requires a sit and stand option defined as a brief postural change at or near the work station, no more frequent than twice an hour and a duration no greater than five minutes each.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on September 16, 1978 and was 38 years old, which is defined as a younger individual age 18-44, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).Tr. at 17-30. II. Discussion
11. The claimant has not been under a disability, as defined in the Social Security Act, from October 1, 2009, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).
Plaintiff alleges the Commissioner erred for the following reasons:
1) the ALJ did not follow the requirements of SSR 96-8p in accounting for Plaintiff's fibromyalgia, lower extremity edema, and muscle cramps and did not consider her subjective allegations in assessing her RFC;
2) the ALJ erred in relying on the VE's testimony without resolving conflicts between it and the DOT.
The Commissioner counters that substantial evidence supports the ALJ's findings and that the ALJ committed no legal error in his decision.
A. Legal Framework
1. The Commissioner's Determination-of-Disability Process
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a "disability." 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability as:
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 at least 12 consecutive months.42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983) (discussing considerations and noting "need for efficiency" in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity; (2) whether she has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents her from doing substantial gainful employment. See 20 C.F.R. §§ 404.1520, 416.920. These considerations are sometimes referred to as the "five steps" of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).
The Commissioner's regulations include an extensive list of impairments ("the Listings" or "Listed impairments") the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. §§ 404.1525, 416.925. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, she will be found disabled without further assessment. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that her impairments match several specific criteria or are "at least equal in severity and duration to [those] criteria." 20 C.F.R. §§ 404.1526, 416.926; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's past relevant work to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. §§ 404.1520(h), 416.920(h).
A claimant is not disabled within the meaning of the Act if she can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, §§ 404.1520(a), (b), 416.920(a), (b); Social Security Ruling ("SSR") 82-62 (1982). The claimant bears the burden of establishing her inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the regional economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that she is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of "any final decision of the Commissioner [] made after a hearing to which he was a party." 42 U.S.C. § 405(g). The scope of that federal court review is narrowly-tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to "try these cases de novo or resolve mere conflicts in the evidence." Vitek v. Finch, 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed "even should the court disagree with such decision." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
B. Analysis
1. RFC Assessment
Plaintiff argues the ALJ did not account for her fibromyalgia, lower extremity edema, and muscle cramps as required by SSR 96-8p. [ECF No. 12 at 15-23]. She claims the ALJ did not comply with SSR 16-3p in evaluating her subjective allegations. Id. at 26-27.
The Commissioner argues the ALJ considered all relevant evidence and assessed an RFC that was supported by the record. [ECF No. 13 at 11]. He maintains the ALJ complied with the provisions of SSR 16-3p and relied on the evidence to conclude her symptoms were not as limiting as she alleged. Id. at 18-21.
A claimant's RFC must be based on all the relevant evidence and should account for all of her medically-determinable impairments. See 20 C.F.R. §§ 404.1545(a), 416.945(a). "'An ALJ has the obligation to consider all relevant medical evidence and 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)). The RFC assessment must include a narrative discussion describing how all the relevant evidence supports each conclusion and must cite "specific medical facts (e.g., laboratory findings) and non-medical evidence (e.g., daily activities, observations)." SSR 96-8p, 1996 WL 374184 at *7 (1996). "Thus, a proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion." Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019).
If the claimant's impairments could reasonably produce the symptoms she alleges, the ALJ "must evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's ability to perform basic work activities." Lewis, 858 F.3d at 866 (citing 20 C.F.R. § 404.1529(c)). In evaluating alleged symptoms, the ALJ is to "evaluate whether the [claimant's] statements are consistent with objective medical evidence and the other evidence." SSR 16-3p, 2016 WL 1119029, at *6. "Other evidence that [the ALJ should] consider includes statements from the individual, medical sources, and any other sources that might have information about the individual's symptoms, including agency personnel, as well as the factors set forth in [the] regulations." Id. at *5; see also 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) (listing factors to consider, such as ADLs; the location, duration, frequency, and intensity of pain or other symptoms; factors that precipitate and aggravate the symptoms; treatment an individual receives or has received for relief of pain or other symptoms; any measures other than treatment an individual uses or has used to relieve pain or other symptoms; and any other factors concerning an individual's functional limitations and restrictions due to pain or other symptoms).
The ALJ must explain how any material inconsistencies or ambiguities in the record were resolved. Id. at *7. "[R]emand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review." Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015), citing Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013).
For the reasons that follow, the undersigned recommends the court find substantial evidence does not support the RFC the ALJ assessed.
a. Fibromyalgia
Plaintiff maintains the ALJ did not consider fibromyalgia as required pursuant to SSR 12-2p and erroneously relied on a lack of objective medical evidence. [ECF No. 12 at 19].
The Commissioner argues the ALJ considered evidence relevant to Plaintiff's fibromyalgia diagnosis and included restrictions that were consistent with the record. [ECF No. 13 at 12-14]. He contends Plaintiff has identified no fibromyalgia-related restrictions that were omitted from the RFC assessment. Id. at 12-13. He claims objective evidence is required to consider fibromyalgia a disabling impairment. Id. at 14. He maintains the ALJ considered Plaintiff's fibromyalgia as part of the longitudinal record. Id.
ALJs are guided by the provisions of SSR 12-2p in evaluating claims involving fibromyalgia. SSR 12-2p, 2012 WL 3104869, at *1. If the ALJ considers fibromyalgia to be among a claimant's severe impairments, he must consider the intensity and persistence of her pain and other symptoms and determine the extent to which they limit her capacity for work. Id. at *5. This requires the ALJ consider a longitudinal record in assessing the claimant's RFC, as "the symptoms of fibromyalgia can wax and wane so that a person may have bad days and good days." Id. at *6 (internal quotations omitted).
The undersigned rejects the Commissioner's argument that the evidence did not establish fibromyalgia as a severe impairment in accordance with the provisions of SSR 12-2p. The ALJ specifically found fibromyalgia to be a severe impairment, and the Commissioner is bound by the ALJ's finding. See Robinson ex rel. M.R. v. Comm'r of Soc. Sec., C/A No. 0:07-3521-GRA, 2009 WL 708267, at *12 (D.S.C. 2009) ("[T]he principles of agency law limit this Court's ability to affirm based on post hoc rationalizations from the Commissioner's lawyers . . . . '[R]egardless [of] whether there is enough evidence in the record to support the ALJ's decision, principles of administrative law require the ALJ to rationally articulate the grounds for [his] decision and confine our review to the reasons supplied by the ALJ.'") (quoting Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir. 2002)).
Contrary to the requirements in 20 C.F.R. § 404.1545(a) and § 416.945(a), the ALJ failed to explain how he specifically accounted for Plaintiff's severe impairment of fibromyalgia in the RFC assessment. See generally Tr. at 20-29. The ALJ presumably considered all of Plaintiff's allegations of physical impairments together, finding "[t]he overall evidence of record . . . did not support [her] allegations and testimony about her physical functional limitations." Tr. at 26. He stated Plaintiff's "physical examinations were generally benign and not overly remarkable." Id. He indicated "her physical examinations generally showed that she was well developed and well nourished, she was in no acute distress, her cardiovascular and respiratory examinations were normal, her skin lesions all but disappeared with chemotherapy medication, her neck was supple, her abdomen was normal, her extremities were normal, she had no motor or neurologic deficit, and her gait was normal." Id. He discussed evidence as to headaches and basal cell carcinoma, but did not specifically address fibromyalgia. See Tr. at 26-27. He then concluded:
The above supports the conclusion that the symptoms secondary to her physical impairments were not generally as limiting or severe as alleged. As such, the undersigned finds that the adopted physical residual functional capacity reasonably accommodated the claimant by limiting her to sedentary work, with a sit and stand option and further postural, manipulative, and environmental restrictions . . . .Tr. at 27.
Absent from the ALJ's explanation is any indication as to how he considered the other evidence addressed in SSR 16-3p and 20 C.F.R. § 404.1529(c)(3) and § 416.929(c)(3). While the ALJ recited evidence as to some of these factors, he supported his RFC assessment by referencing only the objective evidence and without explaining how the other evidence influenced his evaluation.
Although the ALJ assessed fibromyalgia as a severe impairment at step two, the court is left to guess as to how he considered it in his RFC assessment. The medical evidence of record contains few references to fibromyalgia, and it is difficult to parse out Plaintiff's fibromyalgia-related symptoms from her other complaints. However, at the very least, Plaintiff alleged she experienced the "good and bad days" characteristic of fibromyalgia, such that that on bad days her symptoms were so severe as to require assistance in performing basic tasks. Tr. at 45, 82. She also alleged she required multiple rest periods and adhered to a daily nap schedule. Tr. at 83. Because the ALJ considered fibromyalgia as a severe impairment, SSR 12-2p required he consider the intensity and persistence of Plaintiff's fibromyalgia-related pain and other symptoms to determine the extent to which they limited her capacity for work. As he appears to have neglected this duty, the undersigned cannot find he adequately considered fibromyalgia in assessing Plaintiff's RFC.
b. Elevation of Bilateral Lower Extremities
Plaintiff argues the ALJ neglected to consider her doctor's recommendation that she elevate her bilateral lower extremities. [ECF No. 12 at 20]. The Commissioner acknowledges evidence of lower extremity edema in July and August 2017, but maintains Plaintiff's providers generally failed to observe edema outside this period. [ECF No. 13 at 17].
Contrary to the Commissioner's argument, the record contains evidence of bilateral lower extremity edema between July and October 2017. See Tr. at 454, 494, 497, 503-04, 546, 548, 550, 555. On August 23, 2017, Dr. Congdon advised Plaintiff to elevate her feet to address lower extremity edema. Tr. at 495. Plaintiff underwent extensive workup to determine the etiology of her lower extremity edema, but the workup showed no abnormalities. See Tr. at 498, 501-02, 504-04. Although the record does not reflect a definitive cause for Plaintiff's edema, on October 11, 2017, Dr. Adams indicated swelling in the extremities was a known side effect of Vismodegib. Tr. at 454. The record contains no additional references to lower extremity edema, but only goes through December 2017. It is not clear whether the edema resolved or whether Plaintiff accepted it as another side effect of Vismodegib.
The ALJ acknowledged evidence of lower extremity edema in discussing the RFC assessment, Tr. at 25, 26, but he did not explain how he considered it in setting forth restrictions. Although the record does not establish that Plaintiff needed to elevate her feet during the workday, Dr. Congdon's recommendation indicates she needed to elevate her feet at times. Because the ALJ failed to address this evidence and whether specific restrictions were needed for edema, he did not thoroughly address Plaintiff's capacity to perform relevant functions in accordance with the Fourth Circuit's holding in Mascio, SSR 96-8p, and 20 C.F.R. § 404.1545(a) and § 416.945(a).
c. Muscle Cramps
Plaintiff claims the ALJ did not explain how the RFC assessment addressed her muscle cramps. [ECF No. 12 at 21-23]. The Commissioner maintains the ALJ accounted for Plaintiff's complaints of muscle cramping by including in the RFC assessment a sit-stand option with postural and manipulative limitations. [ECF No. 13 at 16].
The ALJ acknowledged Plaintiff's testimony that "her cramps occurred throughout the day"; "affected her feet, legs, hips, back, neck, and jaw"; that her eyes were "the only place not affected by her cramps"; and that her cramps "occurred about 70% of the day." Tr. at 21. He noted her allegations that she could sit for no more than 10 to 15 minutes, could stand for no more than 30 minutes, and had difficulty using her hands because of cramping. Tr. at 22. However, he concluded the evidence did not support Plaintiff's allegations and testimony about her physical functional limitations. Tr. at 26. The ALJ considered Plaintiff's muscle cramps as a side effect of medication used to treat basal cell carcinoma. Tr. at 26-27. While he acknowledged "[t]he [treatment] notes indicated that the claimant had severe muscle cramps" as a side effect of Vismodegib, he cited the effectiveness of the medication at controlling basal cell carcinoma and indications that it was not "interfering with her quality of life." Id.
The ALJ appears to have discounted Plaintiff's alleged limitations caused by muscle cramping by referencing Dr. Adams's indication that side effects from Vismodegib were not "interfering with her quality of life." Tr. at 27. However, in doing so, the ALJ ignored Plaintiff's complaints of worsening muscle cramps over the course of treatment. See Tr. at 402, 404, 426, 427-28, 445, 447, 451, 453, 494. He also ignored evidence that Plaintiff accepted the muscle cramps as a side effect because she was aware that if she discontinued Vismodegib, her basal cell carcinoma would likely recur and she would have to undergo additional surgical procedures. See Tr. at 453. Thus, the ALJ failed to assess Plaintiff's "capacity to perform relevant functions, despite contradictory evidence in the record." See Mascio, 780 F.3d at 636.
The ALJ discussed some of the evidence and reached a conclusion, but his analysis lacks a bridge between the evidence and his conclusion. He acknowledged the functional limitations Plaintiff alleged her muscle cramps imposed, Tr. at 21-22, but he did not consider the entire record in rejecting her subjective allegations. Again, the court is left to guess how the ALJ accounted for Plaintiff's muscle cramps because he did not explain how the RFC for "sedentary work, with a sit and stand option and further postural, manipulative, and environmental restrictions" addressed Plaintiff's muscle cramps. Therefore, the undersigned recommends the court find the ALJ erred in evaluating Plaintiff's muscle cramps in the RFC assessment.
2. Alleged DOT Conflict
Plaintiff argues the ALJ failed to resolve conflicts between the VE's testimony and the DOT with respect to a sit-stand option and time off task. [ECF No. 12 at 23-25]. She maintains short breaks at or near her work station would be impossible, as she would need to walk away from her work station to reduce muscle cramps. Id. at 24. She contends that being away from her work station for five minutes twice per hour would cause her to be off task for more than 15% of the workday and notes the VE testified that an individual would be unemployable if she were off task for 15% or more of the workday. Id. at 25.
The Commissioner argues there is no conflict between the VE's testimony and the DOT. [ECF No. 13 at 17]. He points out the ALJ permitted Plaintiff the option to "make brief postural changes at or near her workstation up to twice an hour and no greater than five minutes in duration each." [ECF No. 13 at 17-18]. He maintains the VE had no difficulty understanding the restrictions in the RFC assessment and identified no conflict between her testimony and the DOT. Id. at 18.
If a claimant is unable to perform her PRW, "the Commissioner bears the burden to prove [she] can perform alternative work." Pearson v. Colvin, 810 F.3d 140 (4th Cir. 2019), citing Bowen v. Yukert, 482 U.S. 137, 146 n.5 (1987). ALJs are to rely primarily on and take administrative notice of information within the DOT as to the requirements of work in the national economy. 20 C.F.R. §§ 404.1566(d), 416.966(d). However, ALJs may also require testimony from VEs as to more complex vocational issues. See 20 C.F.R. §§ 404.1566(e), 416.966(e).
SSR 00-4p "require[s] the ALJ (not the vocational expert) to '[i]dentify and obtain a reasonable explanation' for conflicts between the vocational expert's testimony and the Dictionary, and to '[e]xplain in the determination or decision how any conflict that has been identified was resolved.'" Pearson, 810 F.3d at 208 (citing SSR 00-4p) (emphasis in original). "First, the ALJ must '[a]sk the [VE] . . . if the evidence he or she has provided conflicts with the information provided in the [DOT]'; and second, [i]f the [VE]'s . . . evidence appears to conflict with the [DOT],' the ALJ must 'obtain a reasonable explanation for the apparent conflict.'" Id. (citing SSR 00-4p).
The court has previously rejected arguments that ALJs failed to resolve conflicts where VEs identified jobs in response to hypothetical questions that included provisions not specifically addressed in the DOT, particularly with respect to a sit-stand option. See Duren v. Colvin, C/A No. 6:13-3142-RBH, 2015 WL 1268, at *19 (D.S.C. Mar. 19, 2015) (citing Zblewski v. Astrue, 302 F. App'x 488, 494 (7th Cir. 2008)) (holding that VE's testimony was not in apparent conflict with the DOT as the DOT did not address sit/stand options, and thus ALJ did not err in failing to inquire into such); Wait v. Colvin, C/A No. 1:13-1363-TMC, 2014 WL 2979797, at *4 (D.S.C. Jun. 27, 2014) (finding "there is no conflict between VE testimony and the DOT where the DOT is silent as to the sit/stand option.")). Given the foregoing, the undersigned rejects Plaintiff's general argument that the VE's testimony conflicts with the DOT as to a sit-stand option.
The undersigned is similarly unpersuaded by Plaintiff's argument that "a sit stand option defined as a brief postural change at or near the work station, no more frequent than twice an hour and a duration no greater than five minutes each," Tr. at 20, would require she be off-task for more time than the VE testified would be permitted. If Plaintiff were off task for five minutes twice an hour, it would equate to greater than 16% of time spent off-task. However, the ALJ specified both in his hypothetical question to the VE and in the RFC assessment that "[a]ny time off task would be accommodated by normal breaks." Compare Tr. at 20, with Tr. 90-92. Because the ALJ indicated Plaintiff would not be off-task when making postural changes, there is no inconsistency between the VE's testimony that a person would be unemployable if she were off-task 15% or more of the workday and her testimony that Plaintiff could perform the identified jobs.
Nevertheless, for an ALJ to rely on a VE's opinion to support the existence of jobs at step five, "it must be based upon a consideration of all [the] evidence in the record" and it must be in response to a proper hypothetical question which fairly sets out all of the claimant's impairments. Johnson, 434 F.3d at 659 (quoting Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989)). As discussed above, the ALJ failed to explain how he considered and accounted for all of Plaintiff's credibly-established impairments and limitations in assessing the RFC. His RFC assessment mirrored the hypothetical question he presented to the VE. Thus, the VE identified jobs in response to an incomplete hypothetical question, and the ALJ erred in relying on the VE's testimony to support the existence of a significant number of jobs in the economy. Therefore, the undersigned recommends the court find that substantial evidence does not support the ALJ's finding at step five. III. Conclusion and Recommendation
The court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported as a matter of fact and law. Based on the foregoing, the court cannot determine that the Commissioner's decision is supported by substantial evidence. Therefore, the undersigned recommends, pursuant to the power of the court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in Social Security actions under sentence four of 42 U.S.C. § 405(g), that this matter be reversed and remanded for further administrative proceedings.
IT IS SO RECOMMENDED. April 3, 2020
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).