Opinion
Civil Action No. 6:17-3250-BHH-KFM
01-18-2019
Violet Widener, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
REPORT OF MAGISTRATE JUDGE
This case is before the court for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a), D.S.C., concerning the disposition of Social Security cases in this District, and Title 28, United States Code, Section 636(b)(1)(B).
A report and recommendation is being filed in this case, in which one or both parties declined to consent to disposition by the magistrate judge.
The plaintiff brought this action pursuant to Sections 205(g) and 1631(c)(3) of the Social Security Act, as amended (42 U.S.C. 405(g) and 1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security denying her claims for disability insurance benefits and supplemental security income benefits under Titles II and XVI of the Social Security Act.
ADMINISTRATIVE PROCEEDINGS
The plaintiff filed applications for disability insurance benefits ("DIB"), disabled widow's benefits ("DWB"), and supplemental security income ("SSI") benefits on March 26, 2013 (Tr. 222-32). In the applications, the plaintiff alleged that she became unable to work on July 20, 2012 (Tr. 222, 232). The applications were denied initially and on reconsideration by the Social Security Administration (Tr. 68-137). On April 25, 2014, the plaintiff requested a hearing before an administrative law judge ("ALJ"), and on July 5, 2016, ALJ Larry J. Stroud, conducted a de novo hearing on the plaintiff's claims (Tr. 36-67). The ALJ issued a decision on August 2, 2016, finding that plaintiff has not been under a disability within the meaning of the Social Security Act ("the Act") from July 20, 2012, the alleged onset date, through August 2, 2016, the date of the decision (Tr. 18-35). The plaintiff requested Appeals Council review of the ALJ's decision and the Council declined review on September 29, 2017 (Tr. 1-4). The plaintiff filed this action for judicial review on December 1, 2017 (doc. 1).
In making the determination that the plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant meets the insured status requirements of the Social Security Act through December 31, 1999 (Exhibit 5D).
(2) It was previously found that the claimant is the unmarried widow of the deceased insured worker and has attained the age of 50. The claimant met the non-disability requirements for disabled widow's benefits set forth in section 202(e) of the Social Security Act.
(3) The prescribed period ended on May 15, 2015.
(4) The claimant engaged in substantial gainful activity in 2013 (Exhibit 5D) (20 C.F.R §§ 404.1520(b), 404.1571 et seq., 416.920(b), 416.971 et seq.).
(5) However, there has been a continuous 12 month period(s) during which the claimant did not engage in substantial gainful activity. The remaining findings address the period(s) the claimant did not engage in substantial gainful activity.
(6) The claimant has the following severe impairments: chronic obstructive pulmonary disease, neuropathy of the feet, congestive heart failure, degenerative disc disease of the lumbar spine and affective disorder (20 C.F.R. §§ 404.1520(c), 416.920(c)).
(7) 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 C.F.R. Part 404,
Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926).
(8) After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) with the following exceptions: the claimant cannot climb ladders, ropes and scaffolds. She can occasionally stoop, crouch, crawl, kneel and climb ramps and stairs. The claimant must avoid exposure to fumes, chemicals, pollutant irritants, humidity and concentrated exposure to extreme heat. She is able to perform simple, repetitive tasks; by which, the undersigned means she can understand, remember and carry out simple instructions.
(9) The claimant is unable to perform her past relevant work as a housekeeper (20 C.F.R. §§ 404.1565, 416.965).
(10) The claimant was born on September 29, 1962, and was 49 years old, which is defined as an individual closely approaching advanced age, on the alleged disability onset date. (20 C.F.R. §§ 404.1563, 416.963).
(11) The claimant has a limited education and is able to communicate in English (20 C.F.R. §§ 404.1564, 416.964).
(12) Transferability of job skills is not an issue in this case because the claimant's past relevant work is unskilled (20 C.F.R. §§ 404.1568, 416.968).
(13) 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 C.F.R. §§ 404.1569, 404.1569(a), 416.969, 416.969(a)).
(14) The claimant has not been under a disability, as defined in the Social Security Act, from July 20, 2012, through the date of this decision (20 C.F.R. §§ 404.1520(g), 416.920(g)).
The only issues before the court are whether proper legal standards were applied and whether the final decision of the Commissioner is supported by substantial evidence.
APPLICABLE LAW
Under 42 U.S.C. § 423(d)(1)(A), (d)(5) and § 1382c(a)(3)(A), (H)(i), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do 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 months." 20 C.F.R. §§ 404.1505(a), 416.905(a).
To facilitate a uniform and efficient processing of disability claims, the Social Security Act has by regulation reduced the statutory definition of "disability" to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment that meets or medically equals an impairment contained in the Listing of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1, (4) can perform his or her past relevant work, and (5) can perform other work. Id. §§ 404.1520, 416.920. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. §§ 404.1520(a)(4), 416.920(a)(4).
A claimant must make a prima facie case of disability by showing she is unable to return to her past relevant work because of her impairments. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). Once an individual has established a prima facie case of disability, the burden shifts to the Commissioner to establish that the plaintiff can perform alternative work and that such work exists in the national economy. Id. (citing 42 U.S.C. § 423(d)(2)(A)). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Id. at 192.
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings "are supported by substantial evidence and were reached through application of the correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Id. In reviewing the evidence, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Id. Consequently, even if the court disagrees with Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
EVIDENCE PRESENTED
The plaintiff was 49 years old on her alleged disability onset date (July 20, 2012) and 53 years old at the time of the ALJ's decision (August 2, 2016). She completed the eighth grade and has unskilled past relevant work experience as a housekeeper (Tr. 27, 40).
On August 19, 2010, the plaintiff was seen at Saluda Family Practice for depression and anxiety. On October 6, 2010, she reported depression and headaches. On November 22, 2010, Deborah Grate, M.D., treated the plaintiff for anxiety and stress (Tr. 353-57). On January 18, 2011, she was diagnosed with prolonged posttraumatic stress disorder ("PTSD"). She reported panic attacks and frequent crying (Tr. 358-59). On February 15, 2011, trazodone was prescribed for her anxiety (Tr. 360-61).
On March 9, 2011, the plaintiff saw Alfred R. Ebort, M.D., at Greenwood Mental Health. She reported crying and poor energy. Her thought content was paranoid and she was assessed a Global Assessment of Functioning ("GAF") score of 50. She needed help with trust and paranoia issues and adjunctive depression (Tr. 365-66).
A GAF score is a number between 1 and 100 that measures "the clinician's judgment of the individual's overall level of functioning." See Am. Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental Disorders, 32-34 (Text Revision 4th ed. 2000) ("DSM-IV"). A GAF score between 41 and 50 indicates serious symptoms or a serious impairment in social, occupational, or school functioning. Id. A GAF score between 51 and 60 indicates moderate symptoms or moderate difficulty in social, occupational, or school functioning. Id.
The court notes that the fifth edition of the DSM, published in 2013, has discontinued use of the GAF score for several reasons, including "its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice." See Am. Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental Disorders, 16 (5th ed. 2013) ("DSM-V").
On March 10 and 11, 2011, the plaintiff was seen by Dr. Grate at Calhoun Falls Family Practice for reactive airway disease and acute bronchitis. On July 12, 2011, she returned for medication refills for anxiety, depression, PTSD, hypertension, and reactive airway disease (Tr. 317, 373-76).
On December 9, 2011, the plaintiff reported to Saluda Family Practice that she was using her Proventil three to four times daily (Tr. 497-98). On March 9, 2012, she had a headache and needed a sample of Advair (Tr. 501). On July 20, 2012, she reported severe shortness of breath for the past two days. A physical examination revealed that respiratory effort, auscultation of the lungs and of the heart were normal (Tr. 505-06).
On July 22, 2012, the plaintiff was admitted to Newberry County Memorial Hospital for acute pulmonary edema and acute respiratory failure with chronic obstructive pulmonary disease ("COPD") exacerbation with acute-on-chronic systolic dysfunction. Upon admission, she reported a history of chronic lung disease with long-standing tobacco use. She acknowledged that she smoked more than one pack of cigarettes per day (Tr. 383-86, 405-08). A July 26, 2012, a chest x-ray showed marked improvement with aeration and no acute findings (Tr. 420, 706). On July 29, 2012, the plaintiff was discharged home (Tr. 408).
On July 31, 2012, the plaintiff was seen by cardiologist William W. Stuck, M.D., at Columbia Heart, P.A., for a followup to her hospitalization. She was gradually recovering from her pulmonary exacerbation and had elevated cardiac enzymes (Tr. 475).
On August 6, 2012, Dr. Grate saw the plaintiff for followup of COPD, which she described as "stable" since her last visit. The plaintiff said she had to use her inhaler more frequently recently. She reported lower extremity edema. Respiratory effort, auscultation of the lungs and auscultation of the heart were normal. Examination of the extremities for edema and/or varicosities was normal (Tr.508-10).
On September 4, 2012, she was anxious and described edema in her feet. Dr. Stuck refilled her Lasix prescription (Tr. 474).
The plaintiff returned to Newberry County Memorial Hospital on December 26, 2012, with bronchospasms and bronchitis (Tr. 410-11).
On January 25, 2013, the plaintiff presented to Dr. Grate for a routine follow-up of her hypertension and COPD that were noted as asymptomatic as well as for her depression. The plaintiff reported that she had been arrested on driving under the influence ("DUI") charges. Dr. Grate noted that the plaintiff was a current every day smoker. A physical examination revealed that the plaintiff's respiratory effort was normal, and that auscultation of the lungs was clear without rails, rhonchi, or wheezing. Auscultation of the heart revealed regular rhythm with no murmurs, gallops, rubs or abnormal heart sounds. Her carotids were normal bilaterally, with no bruits or enlarged pulsations. Examination of the extremities revealed no edema or varicosities. Dr. Grate referred the plaintiff to mental health because of her depression (Tr. 515-18).
On March 7, 2013, the plaintiff presented in the emergency room with cough and productive sputum. She was admitted to Aiken Regional Medical Center for shortness of breath, hypoxia, and chest pain. She was diagnosed with pneumonia, a history of COPD, acute exacerbation of bronchitis, hypertension, and depression (Tr. 447, 464). A March 8, 2013, transthoracic echocardiogram was technically difficult due to poor windows from chronic tobacco abuse. However, the study showed that the left ventricle was normal in size. Left ventricular systolic function was normal, with an ejection fraction of 65% (Tr. 455). By March 10, 2013, the date of discharge, the plaintiff was hemodynamically stable. She did not have any current heart issues. Recommendations included regular exercise (Tr. 464-65).
On March 26, 2013, the plaintiff was seen by Dr. Stuck after a hospitalization for pneumonia. She was still having a lot of chest pain. Her cardiac enzymes were negative, a CT scan of the chest showed an infiltrate in the left lung but no evidence for pulmonary embolus. An echocardiogram showed normal left ventricular chamber size and function, with mild left ventricular hypertrophy. Her ejection fraction was 65%, with no significant valvular dysfunction, and her electrocardiogram ("EKG") showed no acute changes. The plaintiff continued to smoke. Dr. Stuck recommended a heart catheterization (Tr. 473).
On April 9, 2013, Dr. Grate saw the plaintiff for hospital followup of PTSD. Dr. Grate noted that she was oriented to person, place and time, and described her mood and affect as agitated, angry, anxious, and labile, with no excessive crying or tearfulness. Pulmonary and cardiovascular examinations, however, were normal (Tr. 520-22).
On April 24, 2013, Dr. Grate completed a one-page report and noted the plaintiff was diagnosed with anxiety, dysthymic disorder, and PTSD. Her medications had not helped and psychiatric care had been recommended. Her mood was worried/anxious, depressed, and angry. She had adequate attention and concentration and memory. Although Dr. Grate circled the sections of the form indicating that the plaintiff's mood/affect was worried/anxious, depressed, and angry, she also circled the sections of the form indicating that the plaintiff was fully oriented (to time, person, place, situation). Dr. Grate indicated that the plaintiff's thought process was intact, her thought content was appropriate, her attention/concentration was adequate, and her memory was adequate. Dr. Grate concluded that the plaintiff had obvious work-related limitations in function as a result of low self-esteem and lack of energy or motivation to do work. Dr. Grate did not explain how the plaintiff's mental impairments imposed functional limitations on her ability to do work-related activities (Tr. 481).
On May 7, 2013, the plaintiff reported worsening shortness of breath. She experienced chest heaviness, pressure, and tightness. She was somewhat anxious and had chest pain suggestive of angina (Tr. 481-82). On May 15, 2013, Dr. Stuck performed a left heart catheterization, left ventriculography, and selective coronary angiography, which revealed essentially normal coronary arteriograms, and normal left ventricular function, with an ejection fraction of 70% (Tr. 491-92).
A July 23, 2013, EKG revealed trace valvular disease, and mildly decreased left ventricular systolic function, with an ejection fraction estimated to be about 40-50% (Tr. 704).
On August 12, 2013, the plaintiff saw Dr. Grate for follow-up of depressive disorder. She had symptoms of a loss of interest, depressed mood, hopelessness, fatigue, poor concentration, indecisiveness, guilt, appetite changes, poor sleep, hypersomnia, and irritability. The plaintiff reported that she was currently able to do activities of daily living without limitations. She also reported that she had been evaluated for mental health issues by an out-of-town physician who did not recommend treatment. Dr. Grate noted that the plaintiff's COPD was currently asymptomatic. The plaintiff continued to smoke (Tr. 524).
On September 4, 2013, a pulmonary function study from Edgefield County Hospital showed moderately severe results (Tr. 530-32).
On September 16, 2013, the plaintiff presented in the emergency room with complaints of chest pain and syncope. Three hours earlier, she was riding on a motorcycle and did not feel well. She complained of very mild chest tightness and minimal shortness of breath. She denied leg swelling. She currently smoked a half a pack of cigarettes per day. A cardiovascular examination revealed normal rate, regular rhythm, normal heart sounds, and no friction rub or murmurs. A pulmonary/chest examination revealed normal effort and breath sounds, no respiratory distress, and no wheezes. A psychiatric examination revealed normal mood, affect, and behavior. Diagnoses included congestive heart failure, myocardial infarction, and hypertension. A chest x-ray revealed that the heart was at the upper limits of normal, and that the lungs were clear without pneumonia or edema. An EKG was normal (Tr. 536, 545-46, 550-60).
On September 17, 2013, Frank Ferrell, M.D., a state agency physician, performed a physical residual functional capacity ("RFC") assessment based on his review of the record. Dr. Ferrell opined that the plaintiff could occasionally lift and/or carry 20 pounds and frequently lift and/or carry ten pounds. She could stand, walk, and sit for six hours in an eight-hour workday, and her ability to push and/or pull was unlimited except as shown for lifting and/or carrying. She could frequently climb ramps and stairs, balance, stoop, and crouch. She could occasionally climb ladders, ropes, and scaffolds, kneel, and crawl. She should avoid even moderate exposure to fumes, odors, dusts, gases, and poor ventilation (Tr. 77-79).
On October 14, 2013, the plaintiff saw A. Nicholas DePace, Ph.D., for an adult mental status examination. She was accompanied to the evaluation by her ex-husband, with whom she was currently living. She reported that her medical problems caused her significant anxiety because she was no longer able to work. She last worked at a flower and gift shop "under the table" for a couple of months. Prior to that, she worked for about a year as a waitress at a local marina. She had her own cleaning business in the past, but stated she was unable to be around cleaning chemicals because of her breathing problems. She reported that she had several friends with whom she interacted on occasion, and that she used the internet and frequently went on Facebook. In January 2013, she lost her driver's license because she failed to pay a fine associated with her DUI charge. With respect to activities of daily living, the plaintiff reported that she did them when "I feel like it." She was able to manage her own funds and provide care for children and dependent adults (Tr. 568-69).
In describing a typical day, the plaintiff stated that she usually got up about 7:00 a.m., had a cup of coffee, read the Bible, prayed, and watched the news. She walked outside if the weather permitted. She talked to her old friends and reported that she would be going on a charity motorcycle ride with her ex-husband that was about two hours away from her home. She had been arrested in the past on a criminal domestic violence charge for assaulting her second husband when they both had drinking problems. She had never been psychiatrically hospitalized, other than an overnight stay at an emergency room. The plaintiff reported that she had not consumed alcohol since January 2013, when she got a DUI citation, and that she last consumed marijuana on the July 4th weekend (Tr. 569).
Dr. DePace observed that the plaintiff's psychomotor behaviors appeared to be within normal limits, as did her rate, volume, and production of speech. She demonstrated a full range of affect and stated that she felt bad because she was sick—had bronchitis and felt like she was running a fever (Tr. 570). Her thought processes were goal directed and coherent, she denied any history of perceptual disturbances, she denied any history of problematic thought content such as suicidal or homicidal thinking or paranoia, she was cooperative, she maintain good eye contact with the examiner, she was in no acute distress, she was able to follow directions without significant difficulties, and she was able to clearly state her perspective on questions asked of her. Dr. DePace noted that despite the plaintiff's described struggles, she did not appear to have any significant difficulties with tearfulness, fearfulness, anxiety, or sadness at the time of the examination. Intellectually, the plaintiff appeared likely to be functioning in at least the low average range. Dr. DePace diagnosed the plaintiff with adjustment disorder with mixed anxiety and depressed mood, chronic. Dr. DePace concluded that interpersonally, the plaintiff easily understood the give and take associated with appropriate and effective social interactions, although she claimed that at times, her pain was so severe that she was unable to interact with others. Dr. DePace opined that she had the cognitive ability to perform all activities of daily living, that she was able to perform three-step commands, and that she had the ability to manage her funds (Tr. 570).
On November 8, 2013, Xanthia Harkness, Ph.D., a state agency psychologist, completed a psychiatric review technique form. Dr. Harkness found that the plaintiff had affective and anxiety related disorders that were not of listing level severity as they resulted in mild restriction of activities of daily living, mild difficulties in maintaining social functioning, moderate difficulties in maintaining concentration, persistence, or pace, and no repeated episodes of decompensation, each of extended duration. Dr. Harkness noted that the plaintiff's statements regarding the inability to concentrate for more than 15 minutes, difficulty with memory, and difficulty in following written instructions, were inconsistent with evidence from her primary care physician and findings at the consultative evaluation(Tr. 75-76).
Dr. Harkness also performed a mental RFC assessment based on her review of the record. With respect to understanding and memory, Dr. Harkness found that the plaintiff had no significant limitations in her ability to remember locations and work-like procedures, and she understood and remembered very short and simple instructions. The plaintiff had moderate limitations in her ability to understand and remember detailed instructions. With respect to her ability to sustain concentration and persistence, Dr. Harkness found that the plaintiff had no significant limitations in her ability to carry out very short and simple instructions, perform activities within a schedule, maintain regular attendance, be punctual within customary tolerances, sustain an ordinary routine without special supervision, work in coordination with or in proximity to others without being distracted by them, make simple work-related decisions, complete a normal workday and workweek without interruptions from psychologically-based symptoms, and perform at a consistent pace without an unreasonable number and length of rest periods; and moderate limitations in her ability to carry out detailed instructions, and maintain attention and concentration for extended periods. Dr. Harkness found no limitations in the areas of social interaction and adaptation (Tr. 79-81).
Dr. Harkness further found that the plaintiff's symptoms would not interfere with satisfactory completion of a normal workday/week or require an unreasonable number of rest or cooling-off periods, and that the plaintiff had the capacity to ask simple questions, request assistance from peers or supervisors, maintain interaction with the public, sustain appropriate interaction with peers and co-workers without interference in work, sustain socially appropriate work behavior, standards and appearance, respond appropriately to changes in a routine setting, be aware of personal safety, and avoid work hazards (Tr. 80-81).
On November 25, 2013, the plaintiff was seen in urgent care for dysuria, back pain, anxiety, and generalized joint pain. She stated that her hands were swollen and hurt. She was somewhat anxious and had pain in her hands and feet (Tr. 577-78).
On December 10, 2013, the plaintiff presented in the emergency room at Aiken County Regional Medical Center with complaints of shortness of breath. The plaintiff asked to be admitted to the hospital for a COPD exacerbation. A physical examination revealed that her lungs were clear, and that her heart rate was regular, with no murmurs, rubs, or gallops. An EKG was normal, with no ischemic changes, and a chest x-ray was clear, with no acute cardiopulmonary disease. A neurological examination revealed that she had normal strength and sensation. Although the plaintiff showed improvement, the emergency room physician agreed to put her in the hospital. It was noted that she suffered from anxiety and chronic pain. She was counseled extensively against continuing to smoke and encouraged to stop smoking (Tr. 590-600).
On December 27, 2013, the plaintiff presented in the emergency room with complaints of chest pain, diarrhea, and shortness of breath. The duration of the episode was one day. She was treated for obstructive chronic bronchitis, congestive heart failure, hypertension and an old myocardial infarction. A physical examination revealed that heart rate and rhythm were normal with no murmur heard. A pulmonary examination revealed that effort and breath sounds were normal. The plaintiff was in no respiratory distress, she had no wheezes or rales, and her lungs were clear bilaterally. A musculoskeletal examination revealed normal range of motion and no edema or tenderness. A neurological examination revealed that the plaintiff was alert and oriented to person, place, and time, and that she exhibited normal muscle tone and coordination. A psychiatric evaluation revealed that her mood, affect, and behavior were normal. A chest x-ray revealed no significant interval changes or evidence of acute cardiopulmonary process. Upon discharge, diagnoses included bronchitis and diarrhea (Tr. 638-45).
On February 10, 2014, the plaintiff reported a lot of shortness of breath and anxiety. Dr. Stuck noted that the plaintiff had a history of chronic chest pain and ongoing tobacco use. The plaintiff stated that she was caring for some of her family members and doing household work. She experienced dyspnea and some palpitations. Her heart rate and rhythm were regular, without murmur, rub, or gallop, and her lungs were clear to auscultation (Tr. 775-76).
On February 21, 2014, the plaintiff was seen at Ridge Spring Family Practice by Tonya Lewis, MS, PA-C, for joint pain at multiple sites. She asked for "arthritis medicine." She was obese with a body mass index of 34.27. Her mood and affect were abnormal in that she was concerned, depressed, and frustrated. She also experienced bilateral flank pain. A pulmonary examination revealed that respiratory rate was normal, with normal rhythm and effort. Auscultation of the lungs was clear without rales, rhonchi, or wheezing, and her heart rhythm was regular, with no murmurs, gallops rubs, or abnormal heart sounds. The carotids were normal bilaterally with no bruits or enlarged pulsations (Tr. 674-79). On March 17, 2014, the plaintiff reported chronic back pain. Her bronchitis was flaring up and she had pain in multiple joints (Tr. 764).
On March 22, 2014, Robin Lanford, M.D., performed a one-time consultative evaluation of the plaintiff. The plaintiff reported breathing problems, arthritis, anxiety, and depression. She took Advair and used a nebulizer, which helped, but she still complained of some shortness of breath. She also acknowledged that she had been a lifetime smoker and had smoked two packs of cigarettes per day since age 14. She stated that she stopped smoking six months ago. She reported that she saw Dr. Stuck in connection a myocardial infarction in 2012 and cardiac catheterization in 2013. Dr. Lanford found it "interesting" that the plaintiff did not have any nitroglycerin pills and that Dr. Stuck did not prescribe nitroglycerin. The plaintiff also stated that she was taking Xanax and Celexa for anxiety, and claimed that she had been in three mental institutions. Dr. Lanford noted that a review of systems was "quite tedious" because the plaintiff "responded yes to practically every question ask[ed], regardless of which organ system." The plaintiff also told Dr. Lanford that she had started developing foot pain. She appeared nervous. (Tr. 746).
Dr. Lanford reviewed medical records, including the records from the plaintiff's December 2013 emergency room visit. Dr. Lanford noted that the plaintiff's troponin was negative for a myocardial infarction, her EKG was normal, there were no ischemic changes noted, and that the plaintiff's chest x-ray was completely clear. A physical examination revealed that the plaintiff was able to ambulate without an assistive device and without difficulty, and that she did not appear short of breath after ambulating in from the parking lot (about 40 feet). She got on and off the examining table without difficulty and up and out of the chair, and was able to dress and undress herself. Her speech was understandable and appropriate, and she was alert and oriented to person, place, and time. Her lungs were clear to auscultation, and there were no rales, rhonchi or wheezing. Her heart rate and rhythm were regular, without murmur, rub, or gallop. Examination of the extremities revealed no clubbing, cyanosis, or edema. All joint range of motion in both the upper and lower extremities was normal, muscle strength was normal, patellar reflexes were 2+ bilaterally, and bilateral grip strength was 5/5, with normal fine and gross manipulative skills. Diagnoses included COPD—although her lungs were totally clear at the time of the examination; heart problems—although her records showed that she had a normal EKG, with no ischemic changes, and a normal troponin level at the emergency room. Dr. Lanford concluded that there was no objective evidence at that time that the plaintiff had heart problems. The plaintiff also was diagnosed with arthritis and Dr. Lanford noted that there were no objective findings in joint range of motion limitations or strength; depression for which she took medication; and cancer. Dr. Lanford noted that his review of the chart revealed that the plaintiff had several surgeries in the perineal area for cancer seven years ago. Dr. Lanford opined that "[t]here is no objective evidence which is consistent with functional limitations in this patient" (Tr. 744-48).
On April 7, 2014, William Hopkins, M.D., a state agency physician, performed a physical RFC assessment based on his review of the updated record and reached the same conclusions as Dr. Ferrell had in September 2013 (Tr. 77-78, 112-14).
On April 9, 2014, the plaintiff reported coughing, congestion, wheezing and right foot and leg pain during a visit to Lexington Medical Center urgent care. She stated that she had been sick over the last few days and was having joint pain. An x-ray of her foot showed some arthritis, and a chest x-ray was consistent with some patchy basilar bronchitis or pneumonitis. She had rhonchi to auscultation bilaterally with wheezing, but she was not in respiratory distress. Cardiovascular examination revealed that the plaintiff's heart rate and rhythm were regular, with no murmurs, gallops, or rubs. A chest x-ray revealed no acute cardiopulmonary process. Diagnoses included joint pain, acute bronchospasm, acute bronchitis, and arthritis of the foot (Tr. 751-55).
Also on April 9, 2014, Craig Horn, Ph.D., a state agency psychologist, completed a psychiatric review technique form based on his review of the updated record. Dr. Horn found that the current medical evidence was not suggestive of mental worsening. Dr. Horn also found that the plaintiff's reports that she was unable to concentrate more than 15 minutes, and had difficulty with memory and following written instructions were in excess of the evidence from her primary care physician regarding memory/concentration and consultative evaluation findings. Giving the plaintiff the benefit of the doubt, Dr. Horn concluded that she had a severe mental impairment that would not preclude the ability to carry out simple, unskilled tasks. Dr. Horn also completed a mental RFC assessment based on his review of the updated record that did not differ from Dr. Harkness' assessment of November 2013 (Tr. 79-81, 109-15).
On April 17, 2014, the plaintiff was seen at Ridge Springs Family Practice for hypertension and chronic pain syndrome. Celebrex, oxycodone, and Lasix were prescribed (Tr. 772). On May 16, 2014, she had anxiety and chronic pain syndrome. Ms. Lewis performed a physical examination which revealed that the plaintiff's respiratory effort was normal; her lungs were clear, without rales, rhonchi, or wheezing; and her heart rhythm was regular, with no murmurs, gallops, rubs, or abnormal heart sounds (Tr. 782).
On June 10, 2014, Dr. Stuck saw the plaintiff for followup of her cardiac status. Her chest was clear, with no cardiac murmurs, and an electrocardiogram revealed that sinus rhythm was normal. Diagnostic impressions included chest pain syndrome, atypical for angina, likely musculoskeletal; continued cigarette smoking; and situational stress. Dr. Stuck wrote that the plaintiff's catheterization in May of 2013 was negative with normal coronary arteries. He noted that objective findings did not indicate any significant cardiac issues, and that laboratory studies were all negative. Dr. Stuck felt her issues with chest pain and numbness in her feet were a non-cardiac problem. Dr. Struck did not recommend repeat ischemic evaluation (Tr. 777).
On June 26, 2014, Ridge Spring Family Practice records indicate the plaintiff was using a cane when weight bearing. She had arthritic-like pain affecting her hands and multiple other joints. Ms. Lewis performed a physical examination which revealed that the plaintiff's respiratory effort was normal; her lungs were clear, without rales, rhonchi, or wheezing; and her heart rhythm was regular, with no murmurs, gallops, rubs, or abnormal heart sounds (Tr. 784-87). On July 24, 2014, she was treated for back pain and an acute exacerbation of her chronic obstructive bronchitis. A physical examination by Ms. Lewis revealed rhonchi over the right mid-lung field and left base. Her heart rhythm was regular, with no murmurs, rubs, or abnormal heart sounds. Diagnoses included acute exacerbation of chronic obstructive bronchitis, and COPD. Examination also revealed that the plaintiff's mood and affect were normal (Tr. 789-92). On August 29, 2014, the plaintiff returned for medication refills (Tr. 793).
On October 30, 2014, Locke Simons, M.D., at Ridge Spring Family Practice, saw the plaintiff for vaginal bleeding. She also complained of chronic joint aches and pains in her hands, back, and legs. Her feet burned and hurt. Pulmonary and cardiovascular examinations were normal. Mood and affect seemed anxious, concerned, depressed, and frustrated (Tr. 874-77).
On December 30, 2014, Dr. Simons saw the plaintiff for followup, at which time she complained of swelling and constipation. She reported that she had vulvar cancer in the past, and that it had recently been suggested that it had returned and was possibly metastatic. Dr. Simons noted that there was no proof of that suggestion. Dr. Simons also noted that a CT of the abdomen and pelvis was negative for the pathologies he was looking for. Diagnoses included abnormal vaginal bleeding, pelvic pain, and personal history of malignant neoplasm of vulva. The plaintiff was to see Dr. Boone, who had the best history of her gynecologic problems (Tr. 878-81).
On January 29, 2015, Dr. Simons treated the plaintiff for shortness of breath. She had seen Dr. Boone, who informed her that she had no cancer. She reported continual pain and weakness in her hands and feet, which were starting to burn continuously. She had swelling in her legs, but she took Lasix regularly. Upon examination she had bilateral pitting edema to her ankles and tibias. Gabapentin was prescribed for her neuropathic symptoms and she was referred to a pulmonologist. Oxycodone was refilled. She had weakness, stiffness, and pain in her hands that she used for the cane to help her walk. She was getting worse physically. Dr. Simons stated, "I cannot imagine her working any type of job in the shape she is in currently, though the etiology of all her symptoms is still a little unclear"(Tr. 884-87).
On February 20, 2015, the plaintiff began treatment as a new patient at Carolina Pulmonary with Francis Dayrit, M.D. She had not been seen by a pulmonologist in the past. A pulmonary examination revealed no increased work of breathing or signs of respiratory distress, and that the lungs were clear to auscultation. A cardiovascular examination revealed that heart rate and rhythm were normal, with no murmurs. Examination of the extremities for edema and/or varicosities was normal. Dr. Dayrit noted the plaintiff's pulmonary function report showed a moderately obstructive pattern with a non-significant improvement post-bronchodilator administration. Her diffusion capacity was severely reduced. The restrictive pattern was likely due to her obesity and appeared to be consistent with COPD with moderate obstruction. Dr. Dayrit was concerned about the severity of the reduction in the diffusion capacity. A chest x-ray was normal—lung fields were normal, there were no pleural effusions, heart size and shape were normal, and there was no mediastinal widening. The plaintiff also had findings that suggested issues with fluid retention and possibly congestive heart failure versus pulmonary hypertension. A psychiatric evaluation revealed that the plaintiff was oriented to person, place, and time, and that her mood and affect were normal. Dr. Dayrit concluded,
Ms. Widener appears to have moderate obstructive dysfunction which is consistent with COPD. [The] history does not appear to be consistent with chronic bronchitis at this point. She does not appear to have the type of infection that needs antibiotic intervention at this point. I feel that the proper inhalers should address her complaints at this point.(Tr. 836-40). On February 25, 2015, the plaintiff underwent a transthoracic echocardiogram, which Dr. Dayrit described as essentially normal (Tr. 846-47, 911-13).
On March 19, 2015, Dr. Dayrit informed the plaintiff that her echocardiogram was basically normal—she had a normal LV function with no mention of diastolic dysfunction, and there was no evidence of pulmonary hypertension. She complained of some wheezing at night, which Dr. Dayrit attributed to the use of a vapor cigarette. Pulmonary and cardiovascular examinations were normal. A psychiatric examination was normal as well. Diagnoses included COPD and current every day smoker. Dr. Dayrit recommended smoking cessation. Dr. Dayrit also recommended that the plaintiff stop using the vapor cigarettes since she had a lot of coughing and bronchospasms when she used them. Dr. Dayrit concluded that most of the plaintiff's symptoms were from COPD and smoking (Tr. 846-47, 911-14).
On March 27, 2015, the plaintiff stated that the gabapentin was wearing off before lunch time (Tr. 888). On May 29, 2015, Mark Adams, M.D., performed a physical examination which revealed no signs of respiratory distress. Heart rate and rhythm were normal she reported diffuse joint and back pain with tingling. Her mood and affect were normal. She was diagnosed with anxiety, arthritis, COPD, esophageal reflux, and peripheral neuropathy (Tr. 797-801). On June 15, 2015, Dr. Simons prescribed meloxicam for arthritis and gabapentin for peripheral neuropathy (Tr. 802-05). On July 21, 2015, the plaintiff had chest pain and nausea. Dr. Adams performed a physical examination which revealed mild wheezing and decreased breath sounds bilaterally but no signs of respiratory distress. Heart rate and rhythm were normal, with no murmurs. The plaintiff's mood and affect were normal (Tr. 806-10). On August 1, 2015, the plaintiff reported increased, severe neuropathic pain in her lower extremities. Melanie Johnson-Bailey, M.D., renewed her fentanyl and oxycodone for arthritis pain and she increased her gabapentin dosage to 800mg three times a day. Tudorza Pressair and Proventil were prescribed for COPD and reactive airway disease (Tr. 811-13).
On August 6, 2015, Dr. Dayrit saw the plaintiff for follow-up (Tr. 922). She reported that she cut her smoking to six to ten cigarettes per day and was no longer using vapor cigarettes. A pulmonary examination revealed that the chest was normal. There was no increased work of breathing or signs of respiratory distress, and the lungs were clear to auscultation. A cardiovascular examination revealed that heart rate and rhythm were normal, with no murmurs. Examination of the extremities for edema and/or varicosities was normal. A psychiatric examination revealed that the plaintiff was oriented to person, place, and time, and that her mood and affect were normal. The plaintiff underwent another spirometry pulmonary function test with results that were worse than previous testing. She had a moderately obstructive pattern and Dr. Dayrit prescribed Breo Ellipta and prednisone (Tr. 922-26).
On August 21, 2015, Dr. Johnson-Bailey performed a physical examination which revealed scattered expiratory and inspiratory wheezing. Heart rate and rhythm were regular, with no gallops, rubs, or murmurs. Examination also revealed that the plaintiff's mood and affect were normal (Tr. 814).
On September 21, 2015, Dr. Johnson-Bailey saw the plaintiff for an exacerbation of chronic obstructive bronchitis. The plaintiff had increasing shortness of breath and continued to smoke. A x-ray on this date revealed no acute cardiopulmonary disease (Tr. 816-19, 865). On October, 20, 2015, examination revealed that the plaintiff's speech and affect were normal (Tr. 824).
On October 21, 2015, the plaintiff told Dr. Johnson-Bailey that she was doing well on Cymbalta. She had been helping care for her mother, who was in hospice. She denied headaches, dizziness, confusion, chest pain, shortness of breath, nausea or vomiting, left arm pain, jaw pain or other signs of cardiac pathology. Cardiovascular and pulmonary examinations were normal. Gait and station, and general range of motion of the joints were normal as well (Tr. 821-24).
On November 20, 2015, the plaintiff told Dr. Johnson-Bailey that she was "[d]oing great" on Cymbalta. Examination revealed her mood and affect were normal. Cardiovascular and pulmonary examinations were normal. Gait and station, and general range of motion of the joints were normal as well (Tr. 825-28).
On December 16, 2015, the plaintiff was seen at Lexington Medical Center for acute bronchitis and COPD. She complained of feeling sick and chest pain after riding her motorcycle all weekend long. A pulmonary function study revealed a mildly obstructive pattern, improved from the previous study. A chest x-ray was normal—lung fields were normal, there was no pleural effusion, heart size and shape were normal, and there was no mediastinal widening. Pulmonary and cardiovascular examinations were normal. A psychiatric examination was normal as well. Dr. Dayrit recommended that the plaintiff protect herself more when riding her motorcycle (Tr. 870-71).
At the administrative hearing held on July 5, 2016, the plaintiff testified that she could no longer work because of breathing problems, neuropathy, and degenerative disc disease in her lower back. She testified that her worst medical problem was difficulty breathing. She used a cane because she lost her balance due to neuropathy of her feet. She took gabapentin, but her feet still swelled. She bought the cane herself. Her doctor told her that if she needed one she should get one. She used the cane when she went out (Tr. 40-44).
The plaintiff testified that she went to the Ridge Spring Family Clinic because it was all she could afford. She had seen doctors for her heart and her breathing problems, but she had not seen them in the last year because she could not afford to go. She stated she had congestive heart failure. She had a heart attack when she was in the hospital for her collapsed lungs. The plaintiff lived alone in a trailer. Her siblings helped her pay her bills. Her daughter and her sister drove her places. She did not drive because her feet bothered her when she drove. She had not been able to get new glasses. She stated that she needed to stand up (Tr. 44-45).
The plaintiff testified that after her hospitalization she continued to have breathing problems. She used a nebulizer three or four times a day, every day. She also used inhalers. Her doctor told her to avoid chemicals and things like fireplaces. She should avoid humidity, heat, and dust. She said going out in the heat took her breath away. She had an inhaler that she used every morning and every night. She used an albuterol inhaler a couple of times every time she went out. The plaintiff also had low back problems. She had a history of fracture. X-rays showed advanced degenerative disc disease. Her doctors wanted to refer her to a place in Columbia for treatment, but she did not have medical insurance coverage. Heavy lifting, changing the sheets on the bed, sweeping, and vacuuming bothered her back. She could only do those things for five or six minutes before she would have to stop. She used a heating pad and stayed in bed (Tr. 46-49).
The plaintiff had problems with her feet due to neuropathy for over a year. Her doctors told it was due to arthritis. She had swelling in her feet and legs every day. She elevated her feet every afternoon. The more she was on her feet during the day the more swelling she experienced in the afternoon. Gabapentin helped with the burning sensation, but she still experienced cramping in her feet. The gabapentin made her sleepy. She testified that she also had pain in her hands. It was difficult for her to open a jar. She took gabapentin and Mobic for arthritis pain. The plaintiff estimated that she could stand for ten or 15 minutes with her cane and she could walk for about 15 minutes before she would have to stop. She could not pick up a case of 24 water bottles. She could carry a gallon of milk, but her hands shook. She could sit for 15 or 20 minutes before she needed to get up and move around due to back pain. She did not return to work after her hospitalization. Her doctor told her she should not be around the cleaning chemicals (Tr. 50-54).
The plaintiff also had problems with anxiety and depression. She had been through a divorce, and she lost her home. She was not used to depending on other people and it was hard for her. She took Celexa, Cymbalta, Xanax as needed, and trazodone. She was not as nervous as she used to be, but she still had crying spells. Previously she had two or three panic attacks a day, but she had improved. She was still nervous, but not as bad. Light activity around her house for a few minutes caused breathing problems, and she had to stop. Some days she spent all day lying down due to her condition. Some days she showered, got dressed, and went to the store with her sister. She watched television. She did a little bit at a time, and then sat down. She no longer cooked full meals. She used to enjoy cleaning, camping, and running. She could not do those things anymore because of her breathing problems. The plaintiff smoked, but she had cut back. She had tried to stop. She tried patches, but they were too expensive. She used to smoke two packs a day, and now she smoked one pack every three days. The attorney noted that some of the plaintiff's breathing test results showed moderate to severe obstruction. The ALJ asked about the plaintiff's drinking problem. She testified that she drank after her divorce, but she quit drinking in January of 2013 (Tr. 55-61).
The vocational expert classified the plaintiff's past relevant work as that of housekeeping cleaner. The ALJ proposed the following hypothetical:
[T]he individual is currently 53 with an 8th grade education, and the same past relevant work. . . . [T]he individual can perform the full range of the light exertional level of work . . . should not climb ladders, ropes, or scaffolds, should only occasionally climb ramps and stairs, occasionally stoop, crouch, crawl, and kneel.(Tr. 62 ). The vocational expert testified that the individual could perform the plaintiff's past relevant work. The individual could also perform work as a furniture rental consultant, Dictionary of Occupational Titles ("DOT") #259.357-018, light, specific vocational preparation ("SVP") of 2, unskilled, with 420,070 jobs nationally; school bus monitor, DOT #372.667-042, light, SVP of 2, with 96,260 jobs nationally; and collator operator, DOT #208.685-010, light, SVP of 2, with 420,670 jobs nationally. The vocational expert stated that the school bus monitor would not include exposure to heat because most school buses are air-conditioned (Tr. 62-64).
The individual should avoid even moderate exposure to fumes, chemicals, and other pulmonary irritants. The individual should avoid concentrated exposure to extreme heat and humidity.
The individual should perform only simple, repetitive tasks. By that, I mean the individual can understand, remember, and carry out simple instructions.
The undersigned would note that although the vocational expert identified furniture rental consultant as DOT #295.357-018, it presumes that the vocational expert and the ALJ meant to indicate DOT #259.357-018, as DOT#295.357-018 is for the job of sales representative, radio and television time (light, with an SVP of 6). See Dictionary of Occupational Titles.
The ALJ proposed a second hypothetical individual who was limited to sedentary work. The vocational expert stated that the hypothetical individual could not do the plaintiff's past relevant work. The attorney asked the vocational expert about her testimony that the first hypothetical individual could return to the plaintiff's past relevant work, which included exposure to chemicals and fumes and odors. The vocational expert retracted her statement that the first hypothetical individual could perform the plaintiff's past relevant work. The attorney asked the vocational expert if the first hypothetical individual needed an assistive device to stand and walk could the individual still perform the jobs cited. The ALJ stated that this was not a valid question. The ALJ equated the question to asking if someone had glasses could they still perform a job. The ALJ stated the records did not show the plaintiff using a cane at her doctor's office (Tr. 64-66).
ANALYSIS
The plaintiff argues that the ALJ's decision is not supported by substantial evidence because it did not (1) properly assess medical source opinion evidence; (2) properly explain the ALJ's findings in the RFC assessment; (3) comply with Social Security Ruling ("SSR") 02-1p regarding the evaluation of the combined effects of obesity with other impairments; (4) properly discuss the plaintiff's need for an assistive device; and (5) properly consider the plaintiff's subjective complaints (doc. 11 at 16-30). The commissioner, on the other hand, asserts that the ALJ's decision is supported by substantial evidence and should be affirmed (doc. 12 at 22-33). For the reasons set forth in more detail 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).
Residual Functional Capacity
The plaintiff argues that the ALJ failed to properly explain his findings with respect to the plaintiff's RFC—especially with respect to the plaintiff's mental impairments (doc. 11 at 24-27). The commissioner, on the other hand, argues that the ALJ's RFC analysis is properly explained and supported by substantial evidence (doc. 12 at 29-31).
The regulations provide that a claimant's RFC is the most that she can still do despite her limitations. 20 C.F.R. §§ 404.1545(a), 416.945(a). It is the ALJ's responsibility to make the RFC assessment, id. §§ 404.1546(c), 416.946(c), and the ALJ does so by considering all of the relevant medical and other evidence in the record, id. §§ 404.1545(a)(3), 416.945(a)(3).
Social Security Ruling ("SSR") 96-8p provides in pertinent part:
The RFC assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions in paragraph (b), (c), and (d) of 20 C.F.R. §§ 404.1545 and 416.945. Only after that may [the] RFC be expressed in terms of the exertional levels of work, sedentary, light, medium, heavy, and very heavy.SSR 96-8p, 1996 WL 374184, at *1. The ruling further provides:
The RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations). In assessing RFC, the adjudicator must discuss the individual's ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and describe the maximum amount of each work-related activity the individual can perform based on the evidence available in the case record. The adjudicator must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved.Id. at *7 (footnote omitted). Further, "[t]he RFC assessment must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence." Id. Moreover, "[t]he RFC assessment must always consider and address medical source opinions. If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted." Id.
In Mascio v. Colvin, relied upon by the plaintiff, the claimant objected to the ALJ's failure to conduct a function-by-function analysis of the claimant, as well as the use of a legally insufficient hypothesis to the vocational expert. 780 F.3d 632, 635-38. In Mascio, the Fourth Circuit found that "the ability to perform simple tasks differs from the ability to stay on task" and that "only the latter limitation would account for a claimant's limitation in concentration, persistence, or pace." 780 F.3d at 638. The Mascio court found it reversible error that the ALJ did not explain her consideration of Plaintiff's limitations in concentration in the RFC or present the limitation to VE in a hypothetical, opining that
Perhaps the ALJ can explain why Mascio's moderate limitation in concentration, persistence, or pace at step three does not translate into a limitation in Mascio's residual functional capacity. For example, the ALJ may find that the concentration, persistence, or pace limitation does not affect Mascio's ability to work, in which case it would have been appropriate to exclude it from the hypothetical tendered to the vocational expert. But because the ALJ here gave no explanation, a remand is in order.Mascio, 780 F.3d at 638 (internal citation omitted).
In this case, the ALJ found that the plaintiff had "moderate" limitations in concentrating, persisting, or maintaining pace, noting that the plaintiff—on a previously submitted function report—indicated that she could manage a checkbook, watch television programs, and sew (Tr. 24 (citing Tr. 256-67)). In determining the plaintiff's RFC, the ALJ limited the plaintiff "to perform[ing] simple, repetitive tasks; by which, the undersigned means [the plaintiff] can understand, remember and carry out simple instructions" (doc. 11 at 25-27; see Tr. 25). In the RFC assessment, the ALJ's entire analysis with respect to the plaintiff's severe mental impairments and the corresponding mental limitations assessed in the RFC is:
Psychological consultant, Dr. DePace opined that [the plaintiff] easily understands the give-and-take associated with appropriate and effective social interactions. She has the cognitive ability to perform all activities of daily living. She is able to perform three-step commands. She does have the ability to manage her funds (Exhibit 14F). Great weight is given to this opinion, as it is consistent with the medical evidence of record.(Tr. 27). Missing from the analysis, however, is any explanation by the ALJ of his conclusion that a limitation to simple, repetitive tasks accounted for the limitations he found as a result of the plaintiff's affective disorder. The commissioner argues that the ALJ's decision is supported by substantial evidence because "the ALJ considered the evidence which showed that Widener's concentration was sufficient to manage a checkbook, watch a television program and follow the plot and characters, and sew (doc. 12 at 30 (citing Tr. 24, 257, 259-60). However, "[a]n ALJ may not, by merely explaining [his] reasons for grading a limitation as moderate in step three, avoid the requirement to account for this moderate limitation in the RFC assessment. Thus, the mere fact that the ALJ in this case offered reasons for finding that Plaintiff's limitation was moderate does not obviate the requirement to account for Plaintiff's moderate limitation in the subsequent evaluation." Knight v. Comm'r of Soc. Sec. Adm., No. 9:15-cv-01512-JMC, 2016 WL 4926072, at *5 (D.S.C. Sept. 16, 2016). Accordingly, that the ALJ in the instant matter offered reasons for finding that the plaintiff's limitations in concentration, persistence, or pace were moderate does not obviate the requirement to account for and explain the plaintiff's moderate limitations in the subsequent RFC evaluation.
The commissioner also argues that the ALJ's RFC is supported by the opinions of two state agency psychologists (doc. 12 at 29-30). The same opinions argued by the commissioner, however, are not mentioned, weighed, or addressed in the ALJ's decision. Thus, these arguments are post hoc rationalizations to justify the ALJ's RFC analysis when the ALJ has not provided such an analysis within his decision. Gannon v. Colvin, C.A. No. 9:15-cv-3250-RMG-BM, 2016 WL 5339698, at *7 (D.S.C. Aug. 22, 2016), Report and Recommendation adopted by 2016 WL 5338504 (D.S.C. Sept. 21, 2016). As such, further explanation and/or consideration is necessary regarding how Plaintiff's moderate limitation in concentration, persistence, or pace does or does not translate into a limitation in Plaintiff's RFC and/or a limitation in the hypothetical to the VE. Accordingly, the Court cannot find the ALJ's RFC determination is supported by substantial evidence.
Remaining Allegations of Error
In light of the court's recommendation that this matter be remanded for further consideration as discussed above, the court need not specifically address the plaintiff's remaining allegations of error as the ALJ will be able to reconsider and re-evaluate the evidence as part of the reconsideration of this claim. Hancock v. Barnhart, 206 F. Supp. 2d 757, 763-64 n.3 (W.D. Va. 2002) (on remand, the ALJ's prior decision has no preclusive effect as it is vacated and the new hearing is conducted de novo); see Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3d Cir. 2003) (remanding on other grounds and declining to address claimant's additional arguments).
However, the undersigned reminds the ALJ specifically that the regulations require that all medical opinions in a case be considered, 20 C.F.R. § 404.1527(b), 416.927(b), that SSR 02-1p sets forth specific requirements with respect to the ALJ's responsibilities when analyzing obesity, and that the ALJ has specific responsibilities in analyzing a plaintiff's subjective allegations, SSR 16-3p. Accordingly, as part of the overall reconsideration of this claim upon remand, the plaintiff's remaining allegations of error should be considered and addressed by the ALJ as appropriate (see doc. 11 at 16-24, 27-30).
CONCLUSION AND RECOMMENDATION
Based upon the foregoing, this court recommends that the Commissioner's decision be reversed under sentence four of 42 U.S.C. § 405(g), with a remand of the cause to the Commissioner for further proceedings as discussed above.
IT IS SO RECOMMENDED
s/ Kevin F. McDonald
United States Magistrate Judge January 18, 2019
Greenville, South Carolina
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
300 East Washington Street
Greenville, South Carolina 29601
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).