Opinion
Civil Action 4:23-cv-02901-BHH-TER
04-10-2024
LEONARD D. BUNCH, Plaintiff, v. MARTIN O'MALLEY,[1] Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
This is an action brought pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. Section 405(g), to obtain judicial review of a “final decision” of the Commissioner of Social Security, denying Plaintiff's claim for disability insurance benefits (DIB). The only issues before the Court are whether the findings of fact are supported by substantial evidence and whether proper legal standards have been applied.
I. RELEVANT BACKGROUND
A. Procedural History
Plaintiff filed an application for DIB on July 27, 2020, alleging disability beginning on December 22, 2017; however, as noted by the ALJ, the relevant period begins in January 2020 as Plaintiff was granted benefits in a prior action on a different application and failed to appeal the December 2019 cessation. (Tr. 10-11). His claims were denied initially and upon reconsideration. Thereafter, Plaintiff filed a request for a hearing. A hearing was held in July 2022, at which time Plaintiff and a vocational expert (VE) testified. The Administrative Law Judge (ALJ) issued an unfavorable decision on October 6, 2022, finding that Plaintiff was not disabled within the meaning of the Act. (Tr. 10-19). Plaintiff filed a request for review of the ALJ's decision. The Appeals Council denied the request for review in April 2023. (Tr. 1). Plaintiff filed this action in June 2023. (ECF No. 1).
B. Introductory Facts
Plaintiff was born in November 1962 and was fifty-five years old on the alleged onset date. (Tr. 17). Plaintiff has past relevant work as an IT Supervisor. (Tr. 17). Plaintiff alleges disability originally due to liver transplant, immune compromised, major depression, anxiety, irritability, bladder and bowel issues, hypertension, memory issues, focus and concentration, physical strength, and stamina. (Tr. 56).
C. The ALJ's Decision
In the decision of October 6, 2022, the ALJ made the following findings of fact and conclusions of law (Tr. 10-19):
1. The claimant meets the insured status requirements of the Social Security Act through March 31, 2025.
2. The claimant has not engaged in substantial gainful activity since December 22, 2017, the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairment: status post liver transplant (20 CFR 404.1520(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) except he can perform postural activities
frequently but never climb ladders, ropes, or scaffolds; he should avoid heights and hazards; he requires ready access to a restroom within approximately 50 yards from the work station.
6. The claimant is capable of performing past relevant work as an IT supervisor.
This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565).
7. The claimant has not been under a disability, as defined in the Social Security Act, from December 22, 2017, through the date of this decision (20 CFR 404.1520(f)).
II. DISCUSSION
Plaintiff argues the ALJ failed to account for time off task caused by GI issues and the RFC of proximity to a bathroom. (ECF No. 24 at 18-19). Plaintiff argues generally that the ALJ did not perform a function-by-function analysis. Plaintiff argues the ALJ failed to explain how Plaintiff could physically perform the RFC of medium work. Plaintiff argues the ALJ did not properly evaluate nonsevere mental impairments. Plaintiff argues the ALJ erred in performing the subjective symptom evaluation. Plaintiff argues the ALJ did not properly weigh Dr. Rodgers' opinions and Dr. Jenkins' opinions under 20 C.F.R. § 404.1520c. Defendant argues the ALJ's analysis here was sufficient, was in accordance with the applicable law, and Plaintiff has failed to show that the ALJ's decision is not based on substantial evidence.
A. LEGAL FRAMEWORK
1. The Commissioner's Determination-of-Disability Process
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a “disability.” 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability as: the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for at least 12 consecutive months. 42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983) (discussing considerations and noting the “need for efficiency” in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity (“SGA”); (2) whether he has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents him from doing SGA. See 20 C.F.R. § 404.1520. These considerations are sometimes referred to as the “five steps” of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).
The Commissioner's regulations include an extensive list of impairments (“the Listings” or “Listed impairments”) the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. § 404.1525. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, he will be found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that his impairments match several specific criteria or be “at least equal in severity and duration to [those] criteria.” 20 C.F.R. § 404.1526; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's past relevant work to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. § 404.1520(h).
A claimant is not disabled within the meaning of the Act if he can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, § 404.1520(a), (b); Social Security Ruling (“SSR”) 82-62 (1982). The claimant bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the regional economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that he is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of “any final decision of the Commissioner [ ] made after a hearing to which he was a party.” 42 U.S.C. § 405(g). The scope of that federal court review is narrowly-tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See id.; Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to “try these cases de novo or resolve mere conflicts in the evidence.” Vitek v. Finch, 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir.1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. “Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed “even should the court disagree with such decision.” Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).Substantial evidence as a threshold is “not high;” “[u]nder the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains “sufficien[t] evidence” to support the agency's factual determinations.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019).
B. ANALYSIS
RFC: Restroom
Plaintiff argues the ALJ's RFC did not account for any time off task caused by GI issues or resulting from the ALJ's included limitation of bathroom proximity. (ECF No. 24 at 18). Plaintiff cites to the following transcript pages in support: 440, 442, 1808, 1811,1959, 1961, and 2044, as well as Plaintiff's 2022 testimony. (ECF No. 24 at 18).
Important here, the relevancy of the 2,058 page record is not inclusive of Plaintiff's alleged onset date of 2017 through 2019. (Tr. 11). The relevant period is from January 2020 through the date of the ALJ's decision. (Tr. 11). This results from Plaintiff receiving benefits with an onset date of July 17, 2018, due to meeting Listing 5.09 related to his liver transplant due to alcoholic cirrhosis, and then Plaintiff failing to appeal the cessation of benefits in December 2019. (Tr. 11, 193, 102-103, 106). The ALJ's “decision only considers whether the claimant has been disabled since January of 2020.” (Tr. 11).
The ALJ's RFC includes Plaintiff “requires ready access to a restroom within approximately 50 yards from the work station.” (Tr. 15). The RFC did not include any limitation as to the frequency of restroom breaks. (Tr. 15). The ALJ's explanation included citation to Exhibit 13F/4, June 2021 notes for treatment of diarrhea and incontinence. (Tr. 16). The ALJ reasoned that contemporaneous treatments notes showed when Plaintiff stopped taking the medication Cellcept, Plaintiff's diarrhea resolved, citing Exhibit 21F/3, a February 2022 note from Dr. Rodgers. (Tr. 16). The ALJ found: “Any remaining issues with fecal or urinary urgency can be accommodated by allowing ready access to a restroom.” (Tr. 16). Dr. Smolka, the nonexamining state agency consultant, summarized reports of diarrhea, fiber use, and that diarrhea had resolved, and then stated “proximity to the restroom in the workplace would also be helpful.” (Tr. 68). The ALJ had found Dr. Smolka's opinion of reduced range of medium work as persuasive. (Tr. 17).
The ALJ noted Plaintiff's testimony of frequent trips to the bathroom. (Tr. 16, 43). In 2022, Plaintiff testified that quitting the medication CellCept had no effect. (Tr. 41). Plaintiff testified he had problems with his bowels 4-5 times a day every day with urgency. (Tr. 43). Plaintiff testified vaguely that it was “starting to be the same with urination now.” (Tr. 44). Plaintiff then stated his stomach hurt every day for two hours after he took his medications. (Tr. 44). Plaintiff testified he had to stay near a bathroom or he would have accidents. (Tr. 47). Plaintiff testified he had a colonoscopy and endoscopy, the findings were normal, and it was “all medicine related.” (Tr. 48).
An adjudicator is solely responsible for assessing a claimant's RFC. 20 C.F.R. § 404.1546(c). In making that assessment, she must consider the functional limitations resulting from the claimant's medically determinable impairments. Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184, at *2. This ruling provides that: “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).” SSR 96-8p, *7.
Plaintiff cites to pages 1808 and 1811; these 2019 notes are not during the relevant time period before the ALJ and are during a time period for which Plaintiff already received disability benefits in another action. (Tr. 1808, 1811; 11).
In July 2020, Plaintiff was seen by NP Cole. CellCept was listed as an active medication. (Tr. 440). “He is still having diarrhea and the fiber helps bulk up the stool, but he still has urgency most days.” (Tr. 440). “The only concern is whether or not the CellCept is currently contributing to his loose stools.” Plaintiff's follow up appointment was in a year. (Tr. 442).
In September 2020, Plaintiff called to refill CellCept. (Tr. 1868). In June 2021, CellCept was still listed under current medications. (Tr. 1959).
In June 2021, Plaintiff was seen by Dr. Rodgers for GI issues. (Tr. 1959). Plaintiff rarely had a formed stool; stool was very watery and just mush. Problem was listed as fecal incontinence. Plaintiff reported an accident at Wal-mart where he soiled his clothes because he could not reach the restroom in time. (Tr. 1959). Plaintiff reported it happened twice a day if he left his home. Plaintiff reported he had fecal urgency within minutes of eating a meal. (Tr. 1959). Plaintiff's current medications included CellCept. (Tr. 1959). Plaintiff reported his stomach hurt after he took his medication. Upon exam, Plaintiff's sphincter tone was tight and excellent. (Tr. 1960). Assessment was full incontinence of feces and fecal urgency. Plaintiff was referred to a specialist. (Tr. 1961).
In July 2021, pharmacy records indicate CellCept was discontinued due to side effects. (Tr. 1981). In August 2021, GI specialist Dr. Elias noted “diarrhea in the setting of CellCept-now stopped and diarrhea has resolved.” (Tr. 1991).
In February 2022, Plaintiff was seen by Dr. Rodgers for a six month hypertension follow up. (Tr. 2043). Under review of systems, Plaintiff reported that he hoped to “walk more now that the diarrhea has stopped” and occasionally “cannot make it to the bathroom on time-this has stopped [when] the liver MD stopp[ed] the CellCept.” (Tr. 2044). While Plaintiff cited this note in support of Plaintiff's arguments as to ongoing diarrhea, this visit also supports the ALJ's statement that diarrhea had stopped with the stopping of the medication and the ALJ cited this exact page as Exhibit 21F/3. (Tr. 16).
Either Plaintiff's diarrhea, fecal urgency, and fecal frequency had stopped when CellCept was stopped in 2021 or it did not. There is conflicting evidence in the record that an ALJ has the responsibility of resolving. Besides this issue, the ALJ already credited Plaintiff's need for ready access to the restroom by putting it in the RFC, appearing to recognize some need or support in the record for that RFC. The ALJ found: “Any remaining issues with fecal or urinary urgency can be accommodated by allowing ready access to a restroom.” (Tr. 16). However, the ALJ did not explain the effect on function within a job and the sustainability of a forty hour work week when Plaintiff regularly used his “ready access” to a restroom. See SSR 96-8p, 1996 WL 374184, *7 (ALJ required to discuss ability to sustain work for 40 hour work week).
Concerns over time spent in the bathroom affecting the RFC considerations of time off task and CPP have been addressed by the Fourth Circuit Court of Appeals. “Obviously, the need to visit the bathroom many times throughout the day impacts one's ability to work. And yet, the ALJ did not analyze Appellant's need for regular bathroom breaks.”Dowling v. Comm'r, 986 F.3d 377, 389 (4th Cir. 2021)(“On remand, the ALJ should evaluate the frequency at which Appellant needed to use the bathroom and analyze how that restriction impacted her ability to work.”).
In Malone v. Kijakazi, 4:22-cv-4189-TER, 2023 WL 6157347 (D.S.C. Sept. 21, 2023), the ALJ there determined a similar RFC: “must have ready access to a restroom(not more than approximately 50 yards from the workstation).” Id. In that case, there was no explanation in the RFC narrative as to restroom use. The ALJ here stated treatment notes showed resolution of Plaintiff's diarrhea as related to fecal urgency and frequency upon the cessation of medication CellCept and noted Plaintiff's testimony otherwise. (Tr. 16). The ALJ here included restroom access in the RFC determination, and despite the partial explanation for why it was included, “[l]ogic suggests if ‘ready access' is required, frequency is a consideration as well.” Malone, at *4; see also Rose A. v. O'Malley, 2024 WL 256972, at *9 (S.D. W.Va. Jan. 5, 2024), report and recommendation adopted, 2024 WL 253656 (S.D. W.Va. Jan. 23, 2024)(citing Malone case and noting a driving factor is plaintiff's endorsement of frequency). The ALJ acknowledged by the RFC determination itself that Plaintiff has record-supported, restroom-access needs, related to at least urgency linked to proximity. In the particular facts of the instant case, the ALJ provided no explanation as to the effect on the RFC related to the frequency of actually using that “ready access.” Plaintiff testified to 4-5 times a day.
It is unclear how long Plaintiff spent in the bathroom with fecal urgency and/or incontinence; the VE testified if a hypothetical person was 15% or more off task, 1.2 hours of a work day, it would be work preclusive, assuming 4-5 twenty minute breaks a day in the hypothetical. (Tr. 52-53).
The ALJ has not provided the court with a meaningful opportunity to review the RFC and the RFC explanation/narrative. Based on the foregoing record, the court can not find that the ALJ's decision was supported by substantial evidence and remand is appropriate where inadequacies in the ALJ's analysis frustrate meaningful review. Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015). Upon remand, the ALJ should take into consideration all of Plaintiff's briefed allegations of error and support findings with citation to substantial evidence and provide logical explanation from the evidence to the ultimate conclusions. See Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015).
II. CONCLUSION
In conclusion, it may well be that substantial evidence exists to support the Commissioner's decision in the instant case. Accordingly, pursuant to the power of the Court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in social security actions under sentence four of Sections 205(g) and 1631(c)(3) of the Social Security Act, 42 U.S.C. Sections 405(g) and 1338(c)(3), it is recommended that the Commissioner's decision be reversed and that this matter be remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings in accordance with this opinion.
The parties' attention is directed to the important notice on the next page.
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
Post Office Box 2317
Florence, South Carolina 29503
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).