Opinion
No. 4:16-CV-239-FL(2)
07-21-2017
AMY DIANE WILLIAMS, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM & RECOMMENDATION
This matter is before the court on the parties' cross motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Amy Diane Williams ("Plaintiff") filed this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the denial of her application for Disability Insurance Benefits ("DIB"). The time for filing responsive briefs has expired, and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, the undersigned recommends that Plaintiff's Motion for Judgment on the Pleadings [DE #14] be granted, Defendant's Motion for Judgment on the Pleadings [DE #18] be denied, and the Commissioner's decision be remanded for further proceedings.
STATEMENT OF THE CASE
Plaintiff protectively applied for a period of disability and DIB on June 20, 2012, with an alleged onset date of June 1, 2011. (R. 71, 39-41.) The application was denied initially and upon reconsideration, and a request for hearing was filed. (R. 71, 39, 51, 92, 102, 105-06.) On November 7, 2014, a hearing was held before Administrative Law Judge ("ALJ") Sara L. Alston, who issued an unfavorable ruling on April 24, 2015. (R. 71, 83.) The Appeals Council denied Plaintiff's request for review on July 21, 2016. (R. 1.) Plaintiff seeks judicial review of the final administrative decision pursuant to 42 U.S.C. § 405(g).
DISCUSSION
I. Standard of Review
The scope of judicial review of a final agency decision denying disability benefits is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). "Substantial evidence is 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; [i]t consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.'" Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971), and Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)) (citations omitted) (alteration in original). "In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig, 76 F.3d at 589) (first and second alterations in original). Rather, in conducting the "substantial evidence" inquiry, the court determines whether the Commissioner has considered all relevant evidence and sufficiently explained the weight accorded to the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
II. Disability Determination
In making a disability determination, the Commissioner utilizes a five-step evaluation process. The Commissioner asks, sequentially, whether the claimant: (1) is engaged in substantial gainful activity; (2) has a severe impairment; (3) has an impairment that meets or equals the requirements of an impairment listed in 20 C.F.R. Part 404, Subpart P, App. 1; (4) can perform the requirements of past work; and, if not, (5) based on the claimant's age, work experience, and residual functional capacity can adjust to other work that exists in significant numbers in the national economy. See 20 C.F.R. § 404.1520; Albright v. Comm'r of Soc. Sec. Admin., 174 F.3d 473, 475 n.2 (4th Cir. 1999). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Pass v. Chater, 65 F.3d 1200, 1203 (4th. Cir. 1995). At the fifth step, the burden shifts to the Commissioner to show that other work exists in the national economy that the claimant can perform. Id.
III. ALJ's Findings
Applying the five-step, sequential evaluation process, the ALJ found Plaintiff "not disabled" as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful employment since June 1, 2011, the alleged onset date. (R. 73.) Next, the ALJ determined Plaintiff had the following severe impairments: "depressive disorder, rheumatoid arthritis, chronic non-malignant pain, anxiety, panic attacks, osteoarthritis (lesions on the spine) and fibromyalgia." (Id.) The ALJ did not identify any non-severe impairments. (Id.)
At step three, the ALJ concluded that Plaintiff's impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 73.) The ALJ analyzed Listings 12.04 and 12.06. (R. 74-75.)
Prior to proceeding to step four, the ALJ assessed Plaintiff's residual functional capacity ("RFC") and found that Plaintiff had
the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b). [Plaintiff] would be able to lift and carry 20 pounds occasionally and 10 pounds frequently, and sitting, standing and[/]or walking for six hours in any combination to complete an eight-hour workday. [Plaintiff] would be limited to occasionally climbing ramps and stairs, kneeling, crouching, stooping and crawling. [Plaintiff] would be limited to occasional reaching and fingering. [Plaintiff] would be limited to frequent handling and feeling. [Plaintiff] would be limited to simple routine and repetitive tasks consistent with unskilled work. [Plaintiff] would be limited to low stress work including no high production or quotas, and only frequent interaction with coworkers and supervisors.(R. 75.) In making this assessment, the ALJ found Plaintiff's work activity in the third quarter of 2011 "undermine[d]" her credibility. (R. 78-79.) At step four, the ALJ concluded Plaintiff was not able to perform her past relevant work as a secretary or housekeeping cleaner. (R. 81.) At step five, the ALJ concluded, based on Plaintiff's age, education, work experience, and RFC, that there are jobs that exist in significant numbers in the national economy that Plaintiff could perform. (R. 82.) Specifically, the ALJ found Plaintiff capable of performing work as a counter clerk, furniture rental consultant, or usher. (R. 82-83.)
IV. Plaintiff's Arguments
Plaintiff contends the ALJ erred by (1) failing to assign proper weight to the opinion of Plaintiff's treating physician; (2) failing to consider whether Plaintiff met Listing 14.09; and (3) assessing an RFC with an exertional limitation of "light." The undersigned finds merit in each of these arguments and, therefore, recommends that the matter be remanded to the Commissioner.
A. Weight Assigned to Medical Opinions
An ALJ "is required to evaluate all evidence in the case record that may have a bearing on the determination or decision of disability, including opinions from medical sources about issues reserved to the Commissioner." SSR 96-5p, 1996 WL 374183, at *3 (July 2, 1996). An ALJ must "explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved." SSR 96-8p, 1996 WL 374184, at *7 (July 2, 1996).
This ruling was rescinded on March 27, 2017, for claims filed on or after that date. 82 Fed. Reg. 15263 (Mar. 27, 2017).
As part of this consideration and explanation, an ALJ must evaluate all medical opinions in the record. 20 C.F.R § 404.1527(b)-(c). Medical opinions are statements from physicians or other "acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [the claimant's] symptoms, diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and [the claimant's] physical or mental restrictions." 20 C.F.R. § 404.1527(a)(1).
A treating source is a "physician, psychologist, or other acceptable medical source who provides . . . or has provided [the claimant] with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with [the claimant]." 20 C.F.R. § 404.1502 (effective June 13, 2011 to Mar. 26, 2017). Controlling weight will be given to "a treating source's medical opinion on the issue(s) of the nature and severity of [a claimant's] impairment(s) [if it] is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record." 20 C.F.R. § 404.1527(c)(2); Craig, 76 F.3d at 590.
If an ALJ determines that a treating physician's opinion is not entitled to controlling weight, he must then determine the weight to be given the opinion by applying the following factors: (1) the length of the treatment relationship and the frequency of examinations; (2) the nature and extent of the treatment relationship; (3) the evidentiary support for the physician's opinion; (4) the consistency of the opinion with the record as a whole; (5) whether the physician is a specialist in the field in which the opinion is rendered; and (6) any other relevant factors brought to the ALJ's attention. 20 C.F.R. § 404.1527(c)(2)-(6); see also Parker v. Astrue, 792 F. Supp. 2d 886, 894 (E.D.N.C. 2011). "The ALJ is not required to discuss all of these factors." Ware v. Astrue, No. 5:11-CV-446-D, 2012 WL 6645000, at *2 (E.D.N.C. Dec. 20, 2012) (citing Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007), and Munson v. Astrue, No. 5:08-CV-110-D(3), 2008 WL 5190490, at *3 (E.D.N.C. Dec. 8, 2008)). "However, the ALJ must give 'good reasons' for the weight assigned to a treating source's opinion." Ware, 2012 WL 6645000, at *2 (citing 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2), and SSR 96-2p, 1996 WL 374188, at *5 (July 2, 1996)).
Here, the ALJ's explanation and analysis of the weight she assigned to medical opinions in the record is insufficient to permit meaningful review. As to Dr. Moeller, Plaintiff's treating physician, the ALJ did not explain factors (1), (2), and (5) listed above. An ALJ is not required to discuss all of the factors in 20 C.F.R. § 404.1527(c)(2)-(6). However, simply selecting the factors that support a particular position and ignoring other factors that are obviously present, as the ALJ did here, makes it impossible for a reviewing court to determine whether the ALJ weighed all of the evidence. Moreover, the ALJ only discussed the evidentiary support for portions of Dr. Moeller's opinion that supported a determination that Plaintiff's symptoms were not as limiting as stated by Plaintiff and by other portions of Dr. Moeller's opinion. (R. 79-80.) Thus, the ALJ insufficiently explained how she resolved material inconsistences or conflicts in the evidence as required by SSR 96-8p, in addition to conducting an insufficient explanation of the factors listed in 20 C.F.R. § 404.1527(c)(2)-(6).
Furthermore, the ALJ's various explanations as to the weight assigned different portions of Dr. Moeller's opinion are at best vague and at worst inconsistent. For example, the ALJ stated she gave "the opinions of Dr. Moeller[] only some weight." (R. 79.) Immediately following this statement, the ALJ reached the conclusion that "[t]here is little in Dr. Moeller's records that would support" limiting Plaintiff's lifting capacity to ten pounds. (Id.) In apparent support of this conclusion, the ALJ cited Dr. Moeller's treatment notes indicating "trigger point tenderness in 11 through 15 out of 18 locations, reduced wrist and biceps strength, 'mild' swelling and tenderness in [Plaintiff]'s right wrist, hip and bilateral knees and some limited range of motion with rotation of the hip." (Id.) Those facts, however, support Dr. Moeller's opinion that Plaintiff's lifting ability would be low. Admittedly, the ALJ includes facts apparently gleaned from the doctor's treatment notes supporting a higher lifting capacity. It is simply unclear, though, how the ALJ used the facts cited to reach her conclusion regarding Dr. Moeller's opinion as to Plaintiff's lifting capacity.
In concluding her analysis of Dr. Moeller's opinions, the ALJ stated that Dr. Moeller's "conclusions about [Plaintiff]'s conditions" are "most persuasive." (R. 80.) In the discussion that follows, the ALJ mentioned two of Dr. Moeller's opinions: (i) that some aspect of Plaintiff's medical condition "has achieved the status of remission"; and (ii) that Dr. Moeller would have preferred Plaintiff attend vocational rehabilitation rather than pursue a claim for disability benefits. (Id.) The ALJ found Dr. Moeller's opinion regarding remission ambiguous because it was unclear whether that opinion referred to Plaintiff's rheumatoid arthritis or synovitis. (Id.) How, then, the ALJ could find this opinion "most persuasive" is not apparent. The ALJ's failure to explain more thoroughly the weight accorded Dr. Moeller's opinions prevents the court from determining whether substantial evidence supports her findings in this regard.
Moreover, Dr. Moeller's opinion that he would prefer Plaintiff to attend "vocational rehabilitation to get training for a part-time job" (R. 429) is not a medical opinion. See 20 C.F.R. § 404.1527(a)(1). Therefore, it should not be assigned "controlling weight or special significance." SSR 96-5p, 1996 WL 374183, at *2. Yet it appears as though this is one of the opinions that the ALJ found "most persuasive." The ALJ went so far as to quote Dr. Moeller's statement regarding vocational rehabilitation four times in her written opinion. (R. 77-78, 80.) She also engaged in a contested discussion with Plaintiff's attorney during the hearing about the issue (R. 15-17) and stated "I want [Plaintiff] to go to voc rehab" when Plaintiff's attorney emphasized that Dr. Moeller had also opined that Plaintiff's symptoms would permit her to work only four hours per day (R. 36-37). The hearing transcript further indicates that the ALJ was reticent to acknowledge the Social Security regulation that permits a finding of disability when a claimant can work only on a part-time basis. (See R. 34-35 (stating "You know - you know - no, that ain't right" in response to the Vocational Expert's testimony that there would be no jobs available for someone who could only work four hours per day).) Based on the record, the undersigned is unable to say that the ALJ applied the correct legal standard in assessing Dr. Moeller's opinions and that her findings in this regard are supported by substantial evidence.
The ALJ's written opinion also contains insufficient explanation regarding the weight assigned to the opinions of state consultative examiner Dr. Andrea Whitfield. In her discussion of Dr. Whitfield's report, the ALJ stated that she gave "Dr. Whitfield's opinion only some weight overall." (R. 80.) This statement is infected with the same vagueness problem as her assessment of Dr. Moeller's opinions. Additionally, while the ALJ stated that Dr. Whitfield's opinion with regard to Plaintiff's manipulative limitations "is entitled to greater weight," she did not explain why she was assigning more weight to that aspect of Dr. Whitfield's opinion. Again, absent further explanation of the weight assigned Dr. Whitfield's medical opinion and the reasons therefor, the undersigned cannot meaningfully review the ALJ's findings as to these medical opinions.
B. Listing Analysis
In determining whether a listing is met or equaled, an ALJ must consider all evidence in the case record about the claimant's impairments and their effects on the claimant. 20 C.F.R. § 404.1526(c) (effective June 13, 2011, to March 26, 2017). Where a claimant has a severe impairment, and the record contains evidence that symptoms related to the impairment "correspond to some or all of the requirements of [a listing]," it is incumbent upon the ALJ to identify the listing and to compare the claimant's symptoms to each of the listing's requirements. See Cook v. Heckler, 783 F.2d 1168, 1172-73 (4th Cir. 1986). "Meaningful review may be possible even absent the explicit step-by-step analysis set out in Cook where the ALJ discusses in detail the evidence presented and adequately explains his consideration thereof." Johnson v. Astrue, No. 5:08-CV-515-FL, 2009 WL 3648551, at *2 (Nov. 3, 2009). However, an ALJ's failure to compare a claimant's symptoms to the relevant listings or to explain, other than in a summary or conclusory fashion, why the claimant's impairments do not meet or equal a listing "makes it impossible for a reviewing court to evaluate whether substantial evidence supports the ALJ's findings." Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013) (citing Cook, 783 F.2d at 1173).
A new version of this regulation went into effect March 27, 2017, for claims filed on or after that date. The text of subsection (c) is the same in both versions of the regulation.
Listing 14.09 applies to inflammatory arthritis. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 14.09 (effective Jan. 2, 2015, to May 17, 2015). This listing may be associated with several disorders, specifically including rheumatoid arthritis. 20 C.F.R. Pt. 404, Subpt. App. 1, § 14.00(D)(6)(c)(i). Listing 14.09 can be met in four ways, each described in paragraphs (A) through (D) of the listing. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 14.09(A)-(D). As for the paragraph (A) criteria, a claimant meets Listing 14.09 if she has persistent inflammation or deformity of one or more major peripheral weight-bearing joints resulting in the inability to (1) ambulate effectively, as defined in §14.00(C)(6), or (2) perform fine and gross movements effectively, as defined in §14.00(C)(7). 20 C.F.R. Pt. 404, Subpt. P, App. 1, §14.09(A)(1)-(2). The regulations define "inability to ambulate effectively" and "inability to perform fine and gross movements effectively" by reference to 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.00(B)(2)(b)-(c). See 20 C.F.R. Pt. 404, Subpt. P., App. 1, §§ 14.00(C)(6)-(7), 14.09(A)(1)-(2) (Listing 14.09 references § 14.00(C)(6)-(7), which in turn references § 1.00(B)(2)(b)-(c)).
The listings have been updated since the date of the ALJ's decision. See 20 C.F.R. Pt. 404, Subpt. P., App. 1, §§ 14.00, 14.09 (effective Mar. 27, 2017, through Jan. 17, 2022); 82 Fed. Reg. 5872 (Jan. 17, 2017); 81 Fed. Reg. 66161, 66167 (Sept. 26, 2016); see generally 81 Fed. Reg. 66138 (Sept. 26, 2016) (introductory statement regarding updates to all listings). It does not appear that the text of Listing 14.09 was amended when the updated regulations became effective in March 2017. Nevertheless, the undersigned reviews the ALJ's decision based on the version of Listing 14.09 in effect at the time of the ALJ's decision. See 81 Fed. Reg. 66138 n.1 (Sept. 26, 2016) (noting that federal judicial review should apply the regulations in effect at the time of the final agency decision but that any amended regulations will be applied if a matter is remanded for further administrative proceedings after the effective date of the amended regulations); see also Cook, 783 F.2d at 112-73. All references herein are to the version of Listing 14.09 in effect at the time of the ALJ's decision.
Plaintiff mentions Listing 14.09 generally, but objects specifically to the ALJ's failure to explain why she does not meet the paragraph (A) criteria of Listing 14.09. (Pl.'s Mem. Supp. Mot. J. Pldgs. [DE #15] at 8-9). --------
Here, the ALJ only discussed listings 12.04 and 12.06 (R. 74-75) despite that (i) the Disability Determination and Transmittal notices from the Social Security Administration list "rheumatoid arthritis & other inflam[matory] polyarthropathies" as the primary diagnosis (R. 39, 40, 51, 52); (ii) the vast majority of the administrative hearing before the ALJ focused on Plaintiff's arthritis (R. 12, 15, 17, 20, 21, 22, 23, 25, 26, 28, 36, 37); and (iii) Plaintiff's treating physician (whose medical notes, records, and opinions form a significant portion of the medical record) is a rheumatologist (R. 417). Simply put, the ALJ's failure to evaluate Plaintiff's symptoms to Listing 14.09 is baffling considering the medical evidence in the record.
The Commissioner argues, nevertheless, that omitting an explicit discussion of Listing 14.09 was not error because (i) there was not "ample evidence" to support a finding that Plaintiff met Listing 14.09, thereby obviating the need to compare Plaintiff's symptoms to that listing's criteria (Def.'s Mem. Supp. Mot. J. Pldgs. [DE #19] at 11, 14); and (ii) the ALJ's discussion of the relevant medical evidence during the RFC discussion is sufficient to permit judicial review (id. at 11).
The Commissioner cites to Kelly v. Astrue, No. 5:08-CV-289-FL, 2009 WL 1346241, at *5 (E.D.N.C. May 12, 2009), and Ketcher v. Apfel, 68 F. Supp. 2d 629, 645 (D. Md. 1999), for the proposition that an explicit listing analysis is only required when there is "ample" evidence in the record that a claimant meets or equals a listing. (Def.'s Mem. Supp. Mot. J. Pldgs. at 11.) This proposition follows from Cook, 783 F.2d at 1172-73. See Ketcher, 68 F. Supp. 2d at 645. The Fourth Circuit further expounded on the ALJ's obligation to consider relevant listings in Radford, wherein it held that an ALJ errs by failing to engage in an explicit listing analysis when "there is probative evidence strongly suggesting that [the claimant] meets or equals [the listing at issue]." Radford, 734 F.3d at 295. The instructive point here is that neither "ample" nor "probative evidence strongly suggestive of" necessarily entails that the medical record of evidence relevant to a listing be uncontroverted. See id. at 296 (noting that there was conflicting evidence in the record as to whether the claimant met the listing at issue, but nonetheless instructing the district court to remand the case to the Commissioner because "the depth and ambivalence of the medical record" and "the ALJ's failure to adequately explain his reasoning" regarding the listing at issue precluded judicial review).
Here, there is "probative evidence strongly suggesting" that Plaintiff meets Listing 14.09. There are medical source statements from Plaintiff's treating rheumatologist explicitly stating that Plaintiff is functionally limited in ways that correspond precisely to Listing 14.09. (R. 414-24.) There is also a report from a state consultative physician indicating that Plaintiff's prognosis is "fair to poor," that Plaintiff may "benefit from an assistive device with regards to long distances and uneven terrain," and that Plaintiff has "manipulative limitations on handling, feeling, grasping, [and] fingering." (R. 383.) While there may be good reasons for discrediting this evidence, it is undeniably probative and strongly suggests that Plaintiff's symptoms correspond to some or all of Listing 14.09's requirements. Moreover, given the disability determination notices from the Social Security Administration, the discussion of Plaintiff's symptoms during the ALJ hearing, and the fact that Plaintiff's treating physician is a rheumatologist, the applicability of Listing 14.09 was not disguised. Cf. Ketcher, 68 F. Supp. 2d at 645 ("Neither the Social Security law nor logic commands an ALJ to discuss all or any of the listed impairments without some significant indication in the record that the claimant suffers from that impairment."). The ALJ, therefore, should have explicitly evaluated whether Plaintiff met Listing 14.09. See Cook, 783 F.2d at 1172-73; Radford, 734 F.3d at 295.
The Fourth Circuit has held—in a series of unpublished opinions—that even when an ALJ errs by failing to evaluate a relevant listing at step three, such error may not warrant remand if the ALJ discusses the relevant medical evidence later in her opinion. See Ketcher, 68 F. Supp. 2d at 645-46 (citing Russell v. Chater, 60 F.3d 824, 1995 WL 417576, at *3 (4th Cir. 1995) (unpublished table decision); Green v. Chater, 64 F.3d 657, 1995 WL 478032, at *3 (4th Cir. 1995) (unpublished table decision); Lyall v. Chater, 60 F.3d 823, 1995 WL 417654, at *1 (4th Cir. 1995) (unpublished table decision)). Somewhat more recently, in a case cited by the Commissioner, the Fourth Circuit rejected a claimant's argument that an ALJ's failure to conduct a relevant listing analysis at step three warranted remand because "the record [was] clear that the ALJ analyzed [the claimant]'s condition through the prism of [the relevant listing]" during the RFC discussion. McCartney v. Apfel, 28 F. App'x 277, 279-80 (4th Cir. 2002) (per curiam) (unpublished). In McCartney, which involved a mental impairment, the ALJ's RFC analysis explicitly referenced the relevant listing criteria and even went so far as to compare the claimant's symptoms to the special psychiatric review technique form required at step three for mental impairments. Id.
In contrast to McCartney, there are several reasons, here, why the ALJ's RFC analysis will not suffice for an adequate listing analysis. First, the ALJ did not conduct her RFC analysis "through the prism of" of Listing 14.09. As explained above, there are multiple ways for a claimant to meet Listing 14.09, and there exists probative evidence that Plaintiff meets some or all of the criteria of Listing 14.09. Yet, the ALJ failed to evaluate Plaintiff's symptoms in light of the listing's requirements, both at step three and in her evaluation of Plaintiff's RFC. Second, for the reasons discussed above, the ALJ's analysis of the medical opinions relevant to Listing 14.09 when assessing Plaintiff's RFC, specifically Dr. Moeller's and Dr. Whitfield's opinions, is insufficient. Third, the ALJ's RFC analysis includes her assessment of Plaintiff's credibility, which is limited to the statement that Plaintiff's credibility was undermined by her work activity in 2011. (R. 78-79.) However, "when a claimant for benefits satisfies the disability listings, benefits are due notwithstanding any prior efforts of the claimant to work despite the handicap." Murphy v. Bowen, 810 F.2d 433, 438 (4th Cir. 1987). Reviewing an ALJ's RFC discussion to determine whether substantial evidence supports a step-three listing determination is particularly problematic where the RFC discussion involves a credibility analysis that would be legally impermissible at step three.
C. RFC
The RFC is an administrative assessment of "an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis" despite impairments and related symptoms. SSR 96-8p, 1996 WL 374184, at *1; see also 20 C.F.R. § 404.1545(a)(1). In determining the RFC, the ALJ considers an individual's ability to meet the physical, mental, sensory, and other requirements of work. 20 C.F.R. § 404.1545(a)(4). It is based upon all relevant evidence and may include the claimant's own description of limitations from alleged symptoms. SSR 96-8p, 1996 WL 374184, at *5; 20 C.F.R. § 404.1545(a)(3). The 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." SSR 96-8p, 1996 WL 374184, at *7.
An ALJ is required to explain her analysis and evaluation when assessing a claimant's RFC because a reviewing court "cannot fill in the blanks for the ALJ." See Patterson v. Comm'r of Soc. Sec. Admin., 846 F.3d 656, 662 (4th Cir. 2017) (reversing and remanding a disability benefits denial because the ALJ failed to document properly application of mental impairment special technique in RFC assessment).
For the reasons discussed above, the ALJ insufficiently explained the weight she assigned the medical opinions of Plaintiff's treating rheumatologist and a state consultative medical examiner. These failures occurred during the RFC formulation. Therefore, it cannot be determined based on the record whether substantial evidence supports the RFC assessment. Accordingly, the undersigned recommends that the matter be remanded to the Commissioner.
CONCLUSION
For the reasons stated above, it is RECOMMENDED that Plaintiff's Motion for Judgment on the Pleadings [DE #14] be GRANTED, Defendant's Motion for Judgment on the Pleadings [DE #18] be DENIED, and the Commissioner's decision be remanded for further proceedings.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until August 4, 2017, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.
A party that does not file written objections to the Memorandum and Recommendation by the foregoing deadline, will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, a party's failure to file written objections by the foregoing deadline may bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).
This 21st day of July 2017.
/s/_________
KIMBERLY A. SWANK
United States Magistrate Judge