Opinion
Case No. 8:17-cv-01064-CMC-JDA
07-13-2018
Tommencita Washington, Plaintiff, v. Nancy A. Berryhill, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court for a Report and Recommendation pursuant to Local Civil Rule 73.02(B)(2)(a), D.S.C., and Title 28, United States Code, Section 636(b)(1)(B). Plaintiff brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the Commissioner of Social Security ("the Commissioner"), denying Plaintiff's claims for disability insurance benefits ("DIB") and supplemental security income ("SSI"). For the reasons set forth below, it is recommended that the decision of the Commissioner be reversed and remanded for administrative action consistent with this recommendation, pursuant to sentence four of 42 U.S.C. § 405(g).
A Report and Recommendation is being filed in this case, in which one or both parties declined to consent to disposition by a magistrate judge.
Section 1383(c)(3) provides, "The final determination of the Commissioner of Social Security after a hearing under paragraph (1) shall be subject to judicial review as provided in section 405(g) of this title to the same extent as the Commissioner's final determinations under section 405 of this title." 42 U.S.C. § 1383(c)(3).
PROCEDURAL HISTORY
In April 2013, Plaintiff protectively filed applications for DIB [R. 220-224; see R. 21] and SSI [R. 225-233; see R. 21], alleging a disability onset date of June 1, 2012 [R. 220, 225]. The claims were denied initially [R. 139-146] and on reconsideration [R. 135-138] by the Social Security Administration ("the Administration"). Plaintiff requested a hearing before an administrative law judge ("ALJ") and on May 14, 2015, ALJ Marcus Christ conducted a de novo hearing on Plaintiff's claims. [R. 43-64.]
The ALJ issued a decision on August 31, 2015, finding Plaintiff has not been under a disability as defined by the Act from June 1, 2012 through the date of the decision. [R. 21-42.] At Step 1, the ALJ determined that Plaintiff met the insured status requirements of the Social Security Act ("the Act") through March 31, 2017, and had not engaged in substantial gainful activity since June 1, 2012, the alleged onset date. [R. 23, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had the following severe impairments: depression; fibromyalgia; osteoarthritis; gastroenteritis; iron deficiency anemia; and sarcoidosis. [R. 23, Finding 3.]
At Step 3, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926). [R. 23, Finding 4.] Before addressing Step 4, the ALJ determined:
the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except never climb ladders, ropes, or scaffolds; occasionally climb ramps and stairs; occasionally stoop, crouch, knee, and crawl; and must avoid concentrated
exposure to extreme cold, extreme heat, irritants such as fumes, odors, dust, and gases, moving machinery, and unprotected heights. Additionally, the claimant is limited to simple routine and repetitive tasks in a work environment free of fast paced production requirements involving only simple work related decisions with few, if any work place changes; and only occasional interaction with the public.[R. 25, Finding 5.]
At Step 4, the ALJ determined that Plaintiff was unable to perform her past relevant work as a data entry clerk and certified nursing assistant. [R. 35, Finding 6.] However, considering Plaintiff's age, education, work experience, and RFC, the ALJ found that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. [R.35, Finding 10.] Thus, on that basis, the ALJ determined that Plaintiff had not been under a disability as defined by the Act from June 1, 2012, through the date of the decision. [R. 36, Finding 11.]
Plaintiff requested Appeals Council review of the ALJ's decision, however, the Council declined review. [R. 1-7.] Plaintiff filed this action for judicial review on April 24, 2017. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff contends the ALJ's decision is not supported by substantial evidence and should be remanded because the ALJ failed to consider the combined effects of her multiple impairments [Doc. 14 at 16-18]; and failed to provide a proper credibility analysis in accordance with SSR 96-7p [id. at 18-20].
The Commissioner, on the other hand, contends that substantial evidence supports the ALJ's decision and that the ALJ adequately considered the combined effect of Plaintiff's impairments [Doc. 15 at 6-8]; and properly evaluated her credibility in accordance with the regulations [id. at 8-9].
STANDARD OF REVIEW
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla—i.e., the evidence must do more than merely create a suspicion of the existence of a fact and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) (citing Woolridge v. Celebrezze, 214 F. Supp. 686, 687 (S.D.W. Va. 1963)) ("Substantial evidence, it has been held, is evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is 'substantial evidence.'").
Where conflicting evidence "allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ)," not on the reviewing court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991) (stating that where the Commissioner's decision is supported by substantial evidence, the court will affirm, even if the reviewer would have reached a contrary result as finder of fact and even if the reviewer finds that the evidence preponderates against the Commissioner's decision). Thus, it is not within the province of a reviewing court to determine the weight of the evidence, nor is it the court's function to substitute its judgment for that of the Commissioner so long as the decision is supported by substantial evidence. Laws, 368 F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).
The reviewing court will reverse the Commissioner's decision on plenary review, however, if the decision applies incorrect law or fails to provide the court with sufficient reasoning to determine that the Commissioner properly applied the law. Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980); see also Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner's decision "is in clear disregard of the overwhelming weight of the evidence, Congress has empowered the courts to modify or reverse the [Commissioner's] decision 'with or without remanding the cause for a rehearing.'" Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971) (quoting 42 U.S.C. § 405(g)). Remand is unnecessary where "the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no purpose." Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974).
The court may remand a case to the Commissioner for a rehearing under sentence four or sentence six of 42 U.S.C. § 405(g). Sargent v. Sullivan, 941 F.2d 1207 (4th Cir. 1991) (unpublished table decision). To remand under sentence four, the reviewing court must find either that the Commissioner's decision is not supported by substantial evidence or that the Commissioner incorrectly applied the law relevant to the disability claim. See, e.g., Jackson v. Chater, 99 F.3d 1086, 1091-92 (11th Cir. 1996) (holding remand was appropriate where the ALJ failed to develop a full and fair record of the claimant's residual functional capacity); Brenem v. Harris, 621 F.2d 688, 690-91 (5th Cir. 1980) (holding remand was appropriate where record was insufficient to affirm but was also insufficient for court to find the claimant disabled). Where the court cannot discern the basis for the Commissioner's decision, a remand under sentence four may be appropriate to allow the Commissioner to explain the basis for the decision. See Smith v. Heckler, 782 F.2d 1176, 1181-82 (4th Cir. 1986) (remanding case where decision of ALJ contained "a gap in its reasoning" because ALJ did not say he was discounting testimony or why); Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (remanding case where neither the ALJ nor the Appeals Council indicated the weight given to relevant evidence). On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. See Smith, 782 F.2d at 1182 ("The [Commissioner] and the claimant may produce further evidence on remand."). After a remand under sentence four, the court enters a final and immediately appealable judgment and then loses jurisdiction. Sargent, 941 F.2d 1207 (citing Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991)).
In contrast, sentence six provides:
The court may . . . at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding . . . .42 U.S.C. § 405(g). A reviewing court may remand a case to the Commissioner on the basis of new evidence only if four prerequisites are met: (1) the evidence is relevant to the determination of disability at the time the application was first filed; (2) the evidence is material to the extent that the Commissioner's decision might reasonably have been different had the new evidence been before him; (3) there is good cause for the claimant's failure to submit the evidence when the claim was before the Commissioner; and (4) the claimant made at least a general showing of the nature of the new evidence to the reviewing court. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985) (citing 42 U.S.C. § 405(g); Mitchell v. Schweiker, 699 F.2d 185, 188 (4th Cir. 1983); Sims v. Harris, 631 F.2d 26, 28 (4th Cir. 1980); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)), superseded by amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec'y, Dep't of Health & Human Servs., 925 F.2d 769, 774 (4th Cir. 1991), rev'd on other grounds. With remand under sentence six, the parties must return to the court after remand to file modified findings of fact. Melkonyan, 501 U.S. at 98. The reviewing court retains jurisdiction pending remand and does not enter a final judgment until after the completion of remand proceedings. See Allen v. Chater, 67 F.3d 293 (4th Cir. 1995) (unpublished table decision) (holding that an order remanding a claim for Social Security benefits pursuant to sentence six of 42 U.S.C. § 405(g) is not a final order).
Though the court in Wilkins indicated in a parenthetical that the four-part test set forth in Borders had been superseded by an amendment to 42 U.S.C. § 405(g), courts in the Fourth Circuit have continued to cite the requirements outlined in Borders when evaluating a claim for remand based on new evidence. See, e.g., Brooks v. Astrue, No. 6:10-cv-152, 2010 WL 5478648, at *8 (D.S.C. Nov. 23, 2010); Ashton v. Astrue, No. TMD 09-1107, 2010 WL 3199345, at *3 (D. Md. Aug. 12, 2010); Washington v. Comm'r of Soc. Sec., No. 2:08-cv-93, 2009 WL 86737, at *5 (E.D. Va. Jan. 13, 2009); Brock v. Sec'y of Health & Human Servs., 807 F. Supp. 1248, 1250 n.3 (S.D.W. Va. 1992). Further, the Supreme Court of the United States has not suggested Borders' construction of § 405(g) is incorrect. See Sullivan v. Finkelstein, 496 U.S. 617, 626 n.6 (1990). Accordingly, the Court will apply the more stringent Borders inquiry.
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a disability. 42 U.S.C. § 423(a). "Disability" is defined as:
[the] inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 consecutive months[.]Id. § 423(d)(1)(A).
I. The Five Step Evaluation
To facilitate uniform and efficient processing of disability claims, federal regulations have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (noting a "need for efficiency" in considering disability claims). The ALJ must consider whether (1) the claimant is engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the impairment meets or equals an impairment included in the Administration's Official Listings of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents the claimant from performing past relevant work; and (5) the impairment prevents the claimant from having substantial gainful employment. 20 C.F.R. §§ 404.1520, 416.920. Through the fourth step, the burden of production and proof is on the claimant. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). The claimant must prove disability on or before the last day of her insured status to receive disability benefits. Everett v. Sec'y of Health, Educ. & Welfare, 412 F.2d 842, 843 (4th Cir. 1969). If the inquiry reaches step five, the burden shifts to the Commissioner to produce evidence that other jobs exist in the national economy that the claimant can perform, considering the claimant's age, education, and work experience. Grant, 699 F.2d at 191. If at any step of the evaluation the ALJ can find an individual is disabled or not disabled, further inquiry is unnecessary. 20 C.F.R. §§ 404.1520(a), 416.920(a)(4); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
A. Substantial Gainful Activity
"Substantial gainful activity" must be both substantial—involves doing significant physical or mental activities, 20 C.F.R. §§ 404.1572(a), 416.972(a)—and gainful—done for pay or profit, whether or not a profit is realized, id. §§ 404.1572(b), 416.972(b). If an individual has earnings from employment or self-employment above a specific level set out in the regulations, she is generally presumed to be able to engage in substantial gainful activity. Id. §§ 404.1574-1575, 416.974-975.
B. Severe Impairment
An impairment is "severe" if it significantly limits an individual's ability to perform basic work activities. See id. §§ 404.1521, 416.921. When determining whether a claimant's physical and mental impairments are sufficiently severe, the ALJ must consider the combined effect of all of the claimant's impairments. 42 U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G). The ALJ must evaluate a disability claimant as a whole person and not in the abstract, having several hypothetical and isolated illnesses. Walker v. Bowen, 889 F.2d 47, 49-50 (4th Cir. 1989) (stating that, when evaluating the effect of a number of impairments on a disability claimant, "the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them"). Accordingly, the ALJ must make specific and well-articulated findings as to the effect of a combination of impairments when determining whether an individual is disabled. Id. at 50 ("As a corollary to this rule, the ALJ must adequately explain his or her evaluation of the combined effects of the impairments."). If the ALJ finds a combination of impairments to be severe, "the combined impact of the impairments shall be considered throughout the disability determination process." 42 U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G).
C. Meets or Equals an Impairment Listed in the Listings of Impairments
If a claimant's impairment or combination of impairments meets or medically equals the criteria of a listing found at 20 C.F.R. Pt. 404, Subpt. P, App.1 and meets the duration requirement found at 20 C.F.R. §§ 404.1509, 416.909, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience. 20 C.F.R. §§ 404.1520(d), 416.920(a)(4)(iii), (d).
The Listing of Impairments is applicable to SSI claims pursuant to 20 C.F.R. §§ 416.911, 416.925.
D. Past Relevant Work
The assessment of a claimant's ability to perform past relevant work "reflect[s] the statute's focus on the functional capacity retained by the claimant." Pass v. Chater, 65 F.3d 1200, 1204 (4th Cir. 1995). At this step of the evaluation, the ALJ compares the claimant's RFC with the physical and mental demands of the kind of work she has done in the past to determine whether the claimant has the RFC to do her past work. 20 C.F.R. §§ 404.1560(b), 416.960(b).
Residual functional capacity is "the most [a claimant] can still do despite [her] limitations." 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).
E. Other Work
As previously stated, once the ALJ finds that a claimant cannot return to her prior work, the burden of proof shifts to the Commissioner to establish that the claimant could perform other work that exists in the national economy. See 20 C.F.R. §§ 404.1520(f)-(g), 416.920(f)-(g); Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992). To meet this burden, the Commissioner may sometimes rely exclusively on the Medical-Vocational Guidelines (the "grids"). Exclusive reliance on the "grids" is appropriate where the claimant suffers primarily from an exertional impairment, without significant nonexertional factors. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e); Gory v. Schweiker, 712 F.2d 929, 930-31 (4th Cir. 1983) (stating that exclusive reliance on the grids is appropriate in cases involving exertional limitations). When a claimant suffers from both exertional and nonexertional limitations, the grids may serve only as guidelines. Gory, 712 F.2d at 931. In such a case, the Commissioner must use a vocational expert to establish the claimant's ability to perform other work. 20 C.F.R. §§ 404.1569a, 416.969a; see Walker, 889 F.2d at 49-50 ("Because we have found that the grids cannot be relied upon to show conclusively that claimant is not disabled, when the case is remanded it will be incumbent upon the [Commissioner] to prove by expert vocational testimony that despite the combination of exertional and nonexertional impairments, the claimant retains the ability to perform specific jobs which exist in the national economy."). The purpose of using a vocational expert is "to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform." Walker, 889 F.2d at 50. For the vocational expert's testimony to be relevant, "it must be based upon a consideration of all other evidence in the record, . . . and it must be in response to proper hypothetical questions which fairly set out all of claimant's impairments." Id. (citations omitted).
An exertional limitation is one that affects the claimant's ability to meet the strength requirements of jobs. 20 C.F.R. §§ 404.1569a(a), 416.969a(a). A nonexertional limitation is one that affects the ability to meet the demands of the job other than the strength demands. Id. Examples of nonexertional limitations include but are not limited to difficulty functioning because of being nervous, anxious, or depressed; difficulty maintaining attention or concentrating; difficulty understanding or remembering detailed instructions; difficulty seeing or hearing. 20 C.F.R. §§ 404.1569a(c)(1), 416.969a(c)(1).
II. Developing the Record
The ALJ has a duty to fully and fairly develop the record. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). The ALJ is required to inquire fully into each relevant issue. Snyder, 307 F.2d at 520. The performance of this duty is particularly important when a claimant appears without counsel. Marsh v. Harris, 632 F.2d 296, 299 (4th Cir. 1980). In such circumstances, "the ALJ should scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts, being especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited." Id. (internal quotations and citations omitted).
III. Treating Physicians
If a treating physician's opinion on the nature and severity of a claimant's impairments is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" in the record, the ALJ must give it controlling weight. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). The ALJ may discount a treating physician's opinion if it is unsupported or inconsistent with other evidence, i.e., when the treating physician's opinion does not warrant controlling weight, Craig, 76 F.3d at 590, but the ALJ must nevertheless assign a weight to the medical opinion based on the 1) length of the treatment relationship and the frequency of examination; 2) nature and extent of the treatment relationship; 3) supportability of the opinion; 4) consistency of the opinion with the record a whole; 5) specialization of the physician; and 6) other factors which tend to support or contradict the opinion, 20 C.F.R. §§ 404.1527(c), 416.927(c). Similarly, where a treating physician has merely made conclusory statements, the ALJ may afford the opinion such weight as is supported by clinical or laboratory findings and other consistent evidence of a claimant's impairments. See Craig, 76 F.3d at 590 (citing 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2)) (holding there was sufficient evidence for the ALJ to reject the treating physician's conclusory opinion where the record contained contradictory evidence).
In any instance, a treating physician's opinion is generally entitled to more weight than a consulting physician's opinion. See Mitchell v. Schweiker, 699 F.2d 185, 187 (4th Cir. 1983) (stating that treating physician's opinion must be accorded great weight because "it reflects an expert judgment based on a continuing observation of the patient's condition for a prolonged period of time"); 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). An ALJ determination coming down on the side of a non-examining, non-treating physician's opinion can stand only if the medical testimony of examining and treating physicians goes both ways. Smith v. Schweiker, 795 F.2d 343, 346 (4th Cir. 1986). Further, the ALJ is required to review all of the medical findings and other evidence that support a medical source's statement that a claimant is disabled. 20 C.F.R. §§ 404.1527(d), 416.927(d). However, the ALJ is responsible for making the ultimate determination about whether a claimant meets the statutory definition of disability. Id.
IV. Medical Tests and Examinations
The ALJ is required to order additional medical tests and exams only when a claimant's medical sources do not give sufficient medical evidence about an impairment to determine whether the claimant is disabled. 20 C.F.R. §§ 404.1517, 416.917; see also Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986). The regulations are clear: a consultative examination is not required when there is sufficient medical evidence to make a determination on a claimant's disability. 20 C.F.R. §§ 404.1517, 416.917. Under the regulations, however, the ALJ may determine that a consultative examination or other medical tests are necessary. Id.
V. Pain
Congress has determined that a claimant will not be considered disabled unless she furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing the existence of a medical impairment that could reasonably be expected to produce the pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). In evaluating claims of disabling pain, the ALJ must proceed in a two-part analysis. Morgan v. Barnhart, 142 F. App'x 716, 723 (4th Cir. 2005) (unpublished opinion). First, "the ALJ must determine whether the claimant has produced medical evidence of a 'medically determinable impairment which could reasonably be expected to produce . . . the actual pain, in the amount and degree, alleged by the claimant.'" Id. (quoting Craig, 76 F.3d at 594). Second, "if, and only if, the ALJ finds that the claimant has produced such evidence, the ALJ must then determine, as a matter of fact, whether the claimant's underlying impairment actually causes her alleged pain." Id. (emphasis in original) (citing Craig, 76 F.3d at 595).
Under the "pain rule" applicable within the United States Court of Appeals for the Fourth Circuit, it is well established that "subjective complaints of pain and physical discomfort could give rise to a finding of total disability, even when those complaints [a]re not supported fully by objective observable signs." Coffman v. Bowen, 829 F.2d 514, 518 (4th Cir. 1987) (citing Hicks v. Heckler, 756 F.2d 1022, 1023 (4th Cir. 1985)). The ALJ must consider all of a claimant's statements about her symptoms, including pain, and determine the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence. 20 C.F.R. §§ 404.1528, 416.928. Indeed, the Fourth Circuit has rejected a rule which would require the claimant to demonstrate objective evidence of the pain itself, Jenkins v. Sullivan, 906 F.2d 107, 108 (4th Cir. 1990), and ordered the Commissioner to promulgate and distribute to all administrative law judges within the circuit a policy stating Fourth Circuit law on the subject of pain as a disabling condition, Hyatt v. Sullivan, 899 F.2d 329, 336-37 (4th Cir. 1990). The Commissioner thereafter issued the following "Policy Interpretation Ruling":
This Ruling supersedes, only in states within the Fourth Circuit (North Carolina, South Carolina, Maryland, Virginia and West Virginia), Social Security Ruling (SSR) 88-13, Titles II and XVI: Evaluation of Pain and Other Symptoms:SSR 90-1p, 55 Fed. Reg. 31,898-02, at 31,899 (Aug. 6, 1990). SSR 90-1p has since been superseded by SSR 96-7p, which is consistent with SSR 90-1p. See SSR 96-7p, 61 Fed. Reg. 34,483-01 (July 2, 1996). SSR 96-7p provides, "If an individual's statements about pain or other symptoms are not substantiated by the objective medical evidence, the adjudicator must consider all of the evidence in the case record, including any statements by the individual and other persons concerning the individual's symptoms." Id. at 34,485; see also 20 C.F.R. §§ 404.1529(c)(1)-(c)(2), 416.929(c)(1)-(c)(2) (outlining evaluation of pain).
...
FOURTH CIRCUIT STANDARD: Once an underlying physical or [m]ental impairment that could reasonably be expected to cause pain is shown by medically acceptable objective evidence, such as clinical or laboratory diagnostic techniques, the adjudicator must evaluate the disabling effects of a disability claimant's pain, even though its intensity or severity is shown only by subjective evidence. If an underlying impairment capable of causing pain is shown, subjective evidence of the pain, its intensity or degree can, by itself, support a finding of disability. Objective medical evidence of pain, its intensity or degree (i.e., manifestations of the functional effects of pain such as deteriorating nerve or muscle tissue, muscle spasm, or sensory or motor disruption), if available, should be obtained and considered. Because pain is not readily susceptible of objective proof, however, the absence of objective medical evidence of the intensity, severity, degree or functional effect of pain is not determinative.
SSR 16-3p was promulgated by the Commissioner and supersedes SSR 96-7p, for all cases rendered as of March 28, 2016. See 81 Fed. Reg. 15776-01, 2016 WL 1131509. In the instant matter, the ALJ's decision is dated August 31, 2015; thus, SSR 96-7p was in effect at the time of the Commissioner's ruling.
VI. Credibility
The ALJ must make a credibility determination based upon all the evidence in the record. Where an ALJ decides not to credit a claimant's testimony about pain, the ALJ must articulate specific and adequate reasons for doing so, or the record must be obvious as to the credibility finding. Hammond v. Heckler, 765 F.2d 424, 426 (4th Cir. 1985). Although credibility determinations are generally left to the ALJ's discretion, such determinations should not be sustained if they are based on improper criteria. Breeden, 493 F.2d at 1010 ("We recognize that the administrative law judge has the unique advantage of having heard the testimony firsthand, and ordinarily we may not disturb credibility findings that are based on a witness's demeanor. But administrative findings based on oral testimony are not sacrosanct, and if it appears that credibility determinations are based on improper or irrational criteria they cannot be sustained.").
APPLICATION AND ANALYSIS
Credibility Analysis
Plaintiff contends the ALJ failed to assess Plaintiff's credibility in accordance with SSR 96-7p. [Doc. 14 at 18-20.] The Commissioner argues the ALJ properly evaluated and considered Plaintiff's credibility. [Doc. 15 at 8-9.]
Determining whether an individual is disabled by pain or other symptoms is a two-step process. First, an ALJ must determine whether a claimant has an underlying impairment that has been established by objective medical evidence that would reasonably be expected to cause subjective complaints of the severity and persistence alleged. See 20 C.F.R. §§ 404.1529(b), 416.929(b); SSR 96-7p, 1996 WL 374186, at *2; Craig, 76 F.3d at 594-96 (discussing the regulation-based two-part test for evaluating pain). The first part of the test "does not . . . entail a determination of the intensity, persistence, or functionally limiting effects of the claimant's asserted pain." Craig, 76 F.3d at 594 (internal quotation omitted) (citing 20 C.F.R. §§ 404.1529(b), 416.929(b)). Second, and only after claimant has satisfied the threshold inquiry, the ALJ is to evaluate "the intensity and persistence of the claimant's pain, and the extent to which it affects her ability to work." Id. at 595. This second step requires the ALJ to consider the record as a whole, including both objective and subjective evidence, and SSR 96-7p cautions that a claimant's "statements about the intensity and persistence of pain or other symptoms or about the effect the symptoms have on his or her ability to work may not be disregarded solely because they are not substantiated by objective medical evidence." SSR 96-7p, 1996 WL 374186, at *1.
Rather, a proper credibility analysis requires assessment of an "individual's statements about pain or other symptoms and about the effect the symptoms have on his or her ability to function" based upon consideration of the entire case record. SSR 96-7p, 1996 WL 374186, at *5. SSR 96-7p further provides that "[o]ne strong indication of the credibility of an individual's statements is their consistency, both internally and with other information in the case record." Id. Social Security rules and regulations recognize that chronic pain may not necessarily be provable by objective diagnostic studies and that a claimant's subjective complaints should be given fair consideration in making a disability determination. 20 C.F.R. §§ 404.1529, 416.929; see SSR 96-7p, 1996 WL 374186, at *5. As such, in evaluating chronic pain, the ALJ is directed to consider the claimant's daily activities; location, frequency, and intensity of the claimant's pain symptoms; any precipitating or aggravating factors; the effectiveness, type, dosage, and side effects of any pain medications; treatment received; and any measures used to relieve pain or other symptoms. 20 C.F.R. §§ 404.1529(c)(3)(i)-(vi), 416.929(c)(3)(i)-(vi).
If an ALJ rejects a claimant's testimony about her pain or physical condition, he must explain the rejection to ensure that the decision is sufficiently supported by substantial evidence. Hatcher v. Sec'y, Dep't of Health & Human Servs., 898 F.2d 21, 23 (4th Cir. 1989); see Mickles v. Shalala, 29 F.3d 918, 927 (4th Cir. 1994) ("Although a claimant's allegations about her pain may not be discredited solely because they are not substantiated by objective evidence of the pain itself or its severity, they need not be accepted to the extent they are inconsistent with the available evidence."). "The reasons for the credibility finding must be grounded in the evidence and articulated in the determination or decision." SSR 96-7p, 1996 WL 374186, at *4. "The determination or decision must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight." Id.
ALJ's Credibility Determination
In the instant matter, upon reviewing Plaintiff's medical history, the ALJ noted that Plaintiff had diagnoses or treatment for symptomatic anemia with lower extremity edema [R. 27]; shortness of breath, left side chest pain, swollen ankles [id]; schizoaffective disorder, depressed current, rule out alcohol abuse [R. 28]; hypersensitivity to touch, pain with movement, joint pain suggestive of sarcoidosis in conjunction with fibromyalgia [R. 28-29]; chronic schizophrenia [R. 29]; mood disorder, psychotic disorder [id]; Axis II personality disorder, possible post-traumatic stress disorder/trauma background [R. 30]; iron replacement treatment [R. 31]; moderate pulmonary obstruction based on pulmonary function test results [id]; and fibromyalgia with diffuse pain, hypersensitivity to touch, and poor sleep [R. 32]. After considering Plaintiff's medical history, the ALJ concluded that Plaintiff's "physical problems" caused significant work-related limitations, but found that the record did not support a finding that Plaintiff was incapable of all work. [R. 34 (emphasis added).] In making this determination, the ALJ relied on the fact that Plaintiff had "a social life, evidenced by her boyfriend in treatment notes dated September 7, 2013, and by treatment notes dated April 2014[,] stating that [Plaintiff] was sexually active with one partner." [Id.] The ALJ found Plaintiff's ability to be sexually active inconsistent with her subjective complaints of disabling joint pain and hypersensitivity. [Id.] The ALJ also concluded that evidence of drug seeking behavior also diminished Plaintiff's credibility. [Id.] Further, the ALJ concluded that Plaintiff's psychotic symptoms were significantly inconsistent with her mental health treatment record. [Id.] The ALJ reasoned that if Plaintiff truly feared for her life each night she would have followed up for additional mental health treatment as opposed to visits in January 2014, April 2014, and May 2015. [Id.] The ALJ also found determinative that Plaintiff never reported mental health problems to any of her numerous non-mental health providers. [Id.]
Discussion
The ALJ must make a credibility determination based upon all the evidence in the record; thus, where an ALJ decides not to credit a claimant's testimony about pain, the ALJ must articulate specific and adequate reasons for doing so, or the record must be obvious as to the credibility finding. Hammond v. Heckler, 765 F.2d 424, 426 (4th Cir. 1985). In the instant matter, the Court finds the ALJ's decision does not provide "specific reasons for the finding on credibility, supported by the evidence in the case record" and is not "sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight." SSR 96-7p, 1996 WL 374186, at *2. Although the ALJ is not required to discuss every piece of record evidence, he must articulate his findings in a manner that permits the Court to determine whether substantial evidence supports his decision.
During the hearing, Plaintiff testified that her chronic anemia causes her to experience fatigue, a lot of pain—including in her eyes and bones, weakness, and occasionally to pass out. [R. 49.] Plaintiff testified that doctors originally thought her blurred vision, dry eyes, and constant headaches were due to her anemia, but now think that it is the sarcoidosis. [R. 49-50.] Plaintiff testified that sarcoidosis also causes her to want to lay down and sleep all day due to pain. [R. 50.] In addition, Plaintiff has been diagnosed with rheumatoid arthritis and testified that it affects her whole body—particularly her left side, and limits her ability to lift things. [R. 51.] Plaintiff also testified, and the record indicates, that she was diagnosed with fibromyalgia. [R. 53; see R. 703 (noting Plaintiff's fibromyalgia diagnosis).] Plaintiff testified that she experiences pain all over, swelling, shortness of breath, and trouble sleeping due to pain caused by her fibromyalgia. [R. 53.] Plaintiff also testified that the pain prevents her from remaining in one position for any length of time—be it standing, sitting or laying. [Id.]
"Sarcoidosis is the growth of tiny collections of inflammatory cells (granulomas) in different parts of the body—most commonly the lungs, lymph nodes, eyes and skin." Sarcoidosis, Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/sarcoidosis/symptoms-causes/syc-20350358 (last visited July 12, 2018). Many patients with sarcoidosis experience lung problems, which may include shortness of breath. Sarcoidosis can also affect the eyes causing blurred vision, eye pain and sensitivity to light. Id.
"Rheumatoid arthritis is a chronic inflammatory disorder that can affect more than just" the joints. Rheumatoid Arthritis, Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/rheumatoid-arthritis/symptoms-causes/syc-20353648 (last visited July 12, 2018). "An autoimmune disorder, rheumatoid arthritis occurs when [the] immune system mistakenly attacks [the] body's [own] tissues." Id. Rheumatoid arthritis affects the lining of the joints and causes painful swelling that can lead to joint deformity and bone erosion. Id. Symptoms of rheumatoid arthritis include swollen joints, fatigue, fever, and weight loss. Id.
Despite this testimony and the record, the ALJ appears to have summarily dismissed Plaintiff's pain complaints based on her having a boyfriend, being sexually active, and exhibiting narcotic seeking behavior. [See R. 34.] However, in light of the regulatory requirements for evaluating pain complaints, the Court finds that more explanation was necessary. As an initial matter, the Court is unable to appreciate the basis for the ALJ's opinion that Plaintiff's pain, in general, should be discounted because she is sexually active or has exhibited drug seeking behaviors. And while the undersigned recognizes that drug seeking behavior can make Plaintiff's claims less credible, the ALJ failed to adequately explain—or reference evidence in the record to support—his conclusion that Plaintiff engaged in drug-seeking behavior rather than behavior showing efforts to obtain pain relief. [See R. 34 (noting that "[t]he record documents narcotic seeking behavior[] and alcohol abuse. The [Plaintiff's] drug seeking behavior further diminishes the credibility of [Plaintiff's] subjective complaints").] But see Williams v. Colvin, No. 8:12-2887-JFA-JDA, 2014 WL 1094404, at *14 (D.S.C. Mar. 18, 2014) (finding the ALJ's decision to discredit the claimant's credibility based on drug-seeking behavior supported by substantial evidence because the ALJ's decision referenced specific evidence in the record in finding that claimant engaged in drug-seeking behavior). Additionally, the Court notes that Plaintiff complained of pain and functional limitations associated with fibromyalgia, sarcoidosis, and rheumatoid arthritis. It is unclear from the ALJ's decision, however, how he considered Plaintiff's allegations of pain, joint pain, reduced vision and fatigue due to Plaintiff's conditions.
Courts in this circuit and others have "noted that fibromyalgia 'poses particular challenges to credibility analyses due to the limited available objective medical evidence.'" Elburn v. Comm'r, Soc. Sec., No. CCB-14-0887, 2014 WL 7146972, at *3 (D. Md. Dec. 12, 2014) (quoting Gavigan v. Barnhart, 261 F. Supp. 2d 334, 340 (D. Md. 2003)); see, e.g., Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996) ("[Fibromyalgia's] cause or causes are unknown, there is no cure, and, of greatest importance to disability law, its symptoms are entirely subjective. There are no laboratory tests for the presence or severity of fibromyalgia."). SSR 12-2p defines fibromyalgia as a "complex medical condition characterized primarily by widespread pain in the joints, muscles, tendons, or nearby soft tissues that has persisted for at least 3 months." SSR 12-2p, 77 Fed. Reg. 46,640, 43,641 (July 25, 2012). Courts have recognized that fibromyalgia symptoms are entirely subjective, there is no laboratory test to confirm the presence or severity of it, and that "physical examinations will usually yield normal results" such as "a full range of motion, no joint swelling," normal muscle strength and neurological reactions. Smith v. Colvin, No. 1:14-cv-04400-RBH, 2016 WL 1089302, at *7 (D.S.C. March 21, 2016) (quoting Green-Younger v. Barnhart, 335 F.3d 99, 108-09 (2d Cir. 2003)). The nature of fibromyalgia is such that an individual's ability to perform "certain tasks or postural maneuvers on a given day does not necessarily reflect an ability to perform those tasks on a sustained basis." Id. (quoting Winkler v. Comm'r, Soc. Sec. Admin., No. SAG-14-2720, 2015 WL 4069334, at *4 (D. Md. July 2, 2015)). In the instant matter, the Court is unable to discern any consideration by the ALJ of pain or fatigue associated with Plaintiff's fibromyalgia; therefore, the Court finds the ALJ's decision to disregard Plaintiff's pain complaints not supported by substantial evidence. --------
Further, with respect to Plaintiff's mental limitations, the Court is equally concerned with the ALJ's apparent dismissal of limitations associated with Plaintiff's mental impairments although the ALJ found that they resulted in moderate difficulties in social functioning and in concentration, persistence, and pace. [See R. 25.] The ALJ also found that Plaintiff suffered from severe depression, but there is no indication that the ALJ considered Plaintiff's diagnoses of schizophrenia or personality disorder in his decision. The undersigned finds that, at a minimum, Plaintiff's moderate limitation in concentration, persistence, and pace should have been provided in a hypothetical to the vocational expert. Wilson v. Colvin, No. 2:14-CV-3209-TLW-MGB, 2016 WL 625088, at *4 (D.S.C. Jan. 15, 2016), Report and Recommendation adopted by 2016 WL 613891 (D.S.C. Feb. 16, 2016) (finding remand necessary under Mascio when "1) a finding of mental limitation in concentration, persistence, or pace is not reflected in the RFC; 2) the mental limitation was not incorporated into the hypothetical given to the VE; and 3) the ALJ did not sufficiently explain the exclusion of such mental limitation.").
"A necessary predicate to engaging in substantial evidence review is a record" that adequately explains the ALJ's findings and reasoning. See id. (requiring that the ALJ "build a logical bridge between the evidence and his conclusions") (citing Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013)). The ALJ's failure to sufficiently articulate his findings with respect to the credibility of Plaintiff's pain complaints or provide a discussion of the evidence in the case record prevents the Court from conducting a proper review; thus, the Court is unable to determine whether substantial evidence supports the ALJ's decision. Accordingly, in light of the above, the Court cannot find the ALJ's decision is supported by substantial evidence and recommends that the case be remanded for further administrative review of Plaintiff's claim.
Remaining Allegations of Error
Because the Court finds the ALJ's error, as outlined above, is a sufficient basis to remand this matter for further consideration, the Court declines to address Plaintiff's remaining allegations of error. On remand, however, the Commissioner should consider Plaintiff's remaining allegations of error.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g), and the case be REMANDED to the Commissioner for further administrative action consistent with this Report and Recommendation.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge July 13, 2018
Greenville, South Carolina