Opinion
CA No: 8:19-cv-01301-CMC-JDA
04-28-2020
Teresa R. Cook, Plaintiff, v. Andrew Saul, Commissioner Social Security Administration, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court for a Report and Recommendation pursuant to Local Civil Rule 73.02(B)(2)(a), D.S.C., and 28 U.S.C. § 636(b)(1)(B). Plaintiff brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the Commissioner of Social Security ("the Commissioner"), denying Plaintiff's claims for disability insurance benefits ("DIB") and supplemental security income ("SSI"). For the reasons set forth below, it is recommended that the decision of the Commissioner be reversed and remanded for administrative action consistent with this recommendation, pursuant to sentence four of 42 U.S.C. § 405(g).
A Report and Recommendation is being filed in this case, in which one or both parties declined to consent to disposition by a magistrate judge.
Section 1383(c)(3) provides, "The final determination of the Commissioner of Social Security after a hearing under paragraph (1) shall be subject to judicial review as provided in section 405(g) of this title to the same extent as the Commissioner's final determinations under section 405 of this title." 42 U.S.C. § 1383(c)(3).
PROCEDURAL HISTORY
Plaintiff filed an application for DIB on October 11, 2016, and an application for SSI on October 14, 2016, alleging an onset of disability date of March 6, 2016. [R. 182-89.] The claims were denied initially and on reconsideration by the Social Security Administration ("the Administration"). [R. 110-114, 115-119, 82-93, 94-105.] Plaintiff requested a hearing before an administrative law judge ("ALJ") and, on January 16, 2018, ALJ Peter Jamison conducted a de novo hearing on Plaintiff's claims. [R. 29-60.]
The ALJ issued a decision on April 11, 2018, finding that Plaintiff was not disabled within the meaning of the Social Security Act (the "Act") from March 6, 2016, through the date of the decision. [R. 15-23.] At Step 1, the ALJ found that Plaintiff met the insured status requirements of the Act through September 30, 2018, and had not engaged in substantial gainful activity since March 6, 2016, the alleged onset date. [R. 17, Findings 1 & 2.] At Step 2, the ALJ found that Plaintiff had the following severe impairments: left hip disorder, lumbar spine disorder, and depression. [R. 17, Finding 3.] At Step 3, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 17-18, Finding 4.]
The five-step sequential analysis used to evaluate disability claims is discussed in the Applicable Law section, infra.
Before addressing Step 4, Plaintiff's ability to perform her past relevant work, the ALJ found that Plaintiff retained the following residual functional capacity ("RFC"):
[C]laimant has the [RFC] to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) with further limitation to lifting and carrying 20 pounds occasionally and 10 pounds frequently; occasionally push and/or pull with bilateral lower extremities; occasionally climb ramps and stairs, balance, kneel, crouch and crawl; no climbing of ladders and scaffolds; avoid unprotected heights hazardous moving mechanical parts, and vibration; and avoid exposure to extreme cold. Further,
claimant is limited to frequent interaction with supervisors, coworkers and public.[R. 19, Finding 5.] Based on this RFC finding, the ALJ determined at Step 4 that Plaintiff was able to perform her past relevant as a cook. [R. 22, Finding 6]. Thus, the ALJ found that Plaintiff had not been under a disability, as defined by the Act, from March 6, 2016, through the date of the decision. [R. 22, Finding 7.]
Plaintiff requested Appeals Council review of the ALJ's decision, but the Appeals Council declined review. [R. 1-6.] Plaintiff filed the instant request for review in this Court on May 3, 2019. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff contends the ALJ's decision is not supported by substantial evidence and contains multiple legal errors warranting the reversal and remand of the case. [Doc. 14.] Specifically, Plaintiff contends the ALJ erred in assessing Plaintiff's RFC by failing to account for limitations in her ability to stand, walk, and use her hands. [Id. at 9-11.] Plaintiff also contends the ALJ failed to properly assess her subjective pain complaints in accordance with SSR 16-3p. [Id. at 12-13.]
The Commissioner contends the ALJ's decision should be affirmed because there is substantial evidence of record that Plaintiff was not disabled within the meaning of the Act. [Doc. 16.] Specifically, the Commissioner contends the ALJ sufficiently explained the evidence supporting his RFC assessment. [Id. at 8-11.] The Commissioner also contends the ALJ properly evaluated Plaintiff's subjective complaints of pain and found that her alleged intensity, persistence, and limiting effects were not entirely consistent with the medical evidence or other evidence of record. [Id. at 11-13.]
STANDARD OF REVIEW
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla—i.e., the evidence must do more than merely create a suspicion of the existence of a fact and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) (citing Woolridge v. Celebrezze, 214 F. Supp. 686, 687 (S.D.W. Va. 1963)) ("Substantial evidence, it has been held, is evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is 'substantial evidence.'").
Where conflicting evidence "allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ)," not on the reviewing court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991) (stating that where the Commissioner's decision is supported by substantial evidence, the court will affirm, even if the reviewer would have reached a contrary result as finder of fact and even if the reviewer finds that the evidence preponderates against the Commissioner's decision). Thus, it is not within the province of a reviewing court to determine the weight of the evidence, nor is it the court's function to substitute its judgment for that of the Commissioner so long as the decision is supported by substantial evidence. Laws, 368 F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).
The reviewing court will reverse the Commissioner's decision on plenary review, however, if the decision applies incorrect law or fails to provide the court with sufficient reasoning to determine that the Commissioner properly applied the law. Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980); see also Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner's decision "is in clear disregard of the overwhelming weight of the evidence, Congress has empowered the courts to modify or reverse the [Commissioner's] decision 'with or without remanding the cause for a rehearing.'" Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971) (quoting 42 U.S.C. § 405(g)). Remand is unnecessary where "the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no purpose." Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974).
The court may remand a case to the Commissioner for a rehearing under sentence four or sentence six of 42 U.S.C. § 405(g). Sargent v. Sullivan, 941 F.2d 1207 (4th Cir. 1991) (unpublished table decision). To remand under sentence four, the reviewing court must find either that the Commissioner's decision is not supported by substantial evidence or that the Commissioner incorrectly applied the law relevant to the disability claim. See, e.g., Jackson v. Chater, 99 F.3d 1086, 1090-91 (11th Cir. 1996) (holding remand was appropriate where the ALJ failed to develop a full and fair record of the claimant's residual functional capacity); Brehem v. Harris, 621 F.2d 688, 690 (5th Cir. 1980) (holding remand was appropriate where record was insufficient to affirm but was also insufficient for court to find the claimant disabled). Where the court cannot discern the basis for the Commissioner's decision, a remand under sentence four may be appropriate to allow the Commissioner to explain the basis for the decision. See Smith v. Heckler, 782 F.2d 1176, 1181-82 (4th Cir. 1986) (remanding case where decision of ALJ contained "a gap in its reasoning" because ALJ did not say he was discounting testimony or why); Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (remanding case where neither the ALJ nor the Appeals Council indicated the weight given to relevant evidence). On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. See Smith, 782 F.2d at 1182 ("The [Commissioner] and the claimant may produce further evidence on remand."). After a remand under sentence four, the court enters a final and immediately appealable judgment and then loses jurisdiction. Sargent, 941 F.2d 1207 (citing Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991)).
In contrast, sentence six provides:
The court may . . . at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding . . . .42 U.S.C. § 405(g). A reviewing court may remand a case to the Commissioner on the basis of new evidence only if four prerequisites are met: (1) the evidence is relevant to the determination of disability at the time the application was first filed; (2) the evidence is material to the extent that the Commissioner's decision might reasonably have been different had the new evidence been before him; (3) there is good cause for the claimant's failure to submit the evidence when the claim was before the Commissioner; and (4) the claimant made at least a general showing of the nature of the new evidence to the reviewing court. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985) (citing 42 U.S.C. § 405(g); Mitchell v. Schweiker, 699 F.2d 185, 188 (4th Cir. 1983); Sims v. Harris, 631 F.2d 26, 28 (4th Cir. 1980); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)), superseded by amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec'y, Dep't of Health & Human Servs., 925 F.2d 769, 774 (4th Cir. 1991). With remand under sentence six, the parties must return to the court after remand to file modified findings of fact. Melkonyan, 501 U.S. at 98. The reviewing court retains jurisdiction pending remand and does not enter a final judgment until after the completion of remand proceedings. See Allen v. Chater, 67 F.3d 293 (4th Cir. 1995) (unpublished table decision) (holding that an order remanding a claim for Social Security benefits pursuant to sentence six of 42 U.S.C. § 405(g) is not a final order).
Though the court in Wilkins indicated in a parenthetical that the four-part test set forth in Borders had been superseded by an amendment to 42 U.S.C. § 405(g), courts in the Fourth Circuit have continued to cite the requirements outlined in Borders when evaluating a claim for remand based on new evidence. See, e.g., Brooks v. Astrue, No. 6:10-cv-152, 2010 WL 5478648, at *8 (D.S.C. Nov. 23, 2010); Ashton v. Astrue, No. TMD 09-1107, 2010 WL 3199345, at *3 (D. Md. Aug. 12, 2010); Washington v. Comm'r of Soc. Sec., No. 2:08-cv-93, 2009 WL 86737, at *5 (E.D. Va. Jan. 13, 2009); Brock v. Sec'y of Health & Human Servs., 807 F. Supp. 1248, 1250 n.3 (S.D.W. Va. 1992). Further, the Supreme Court of the United States has not suggested Borders' construction of § 405(g) is incorrect. See Sullivan v. Finkelstein, 496 U.S. 617, 626 n.6 (1990). Accordingly, the Court will apply the more stringent Borders inquiry.
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a disability. 42 U.S.C. § 423(a). "Disability" is defined as:
the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 consecutive months.Id. § 423(d)(1)(A).
I. The Five Step Evaluation
To facilitate uniform and efficient processing of disability claims, federal regulations have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (noting a "need for efficiency" in considering disability claims). The ALJ must consider whether (1) the claimant is engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the impairment meets or equals an impairment included in the Administration's Official Listings of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents the claimant from performing past relevant work; and (5) the impairment prevents the claimant from having substantial gainful employment. 20 C.F.R. §§ 404.1520, 416.920. Through the fourth step, the burden of production and proof is on the claimant. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). The claimant must prove disability on or before the last day of her insured status to receive disability benefits. Everett v. Sec'y of Health, Educ. & Welfare, 412 F.2d 842, 843 (4th Cir. 1969). If the inquiry reaches Step 5, the burden shifts to the Commissioner to produce evidence that other jobs exist in the national economy that the claimant can perform, considering the claimant's age, education, and work experience. Grant, 699 F.2d at 191. If at any step of the evaluation the ALJ can find an individual is disabled or not disabled, further inquiry is unnecessary. 20 C.F.R. §§ 404.1520(a), 416.920(a)(4); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
A. Substantial Gainful Activity
"Substantial gainful activity" must be both substantial—involves doing significant physical or mental activities, 20 C.F.R. §§ 404.1572(a), 416.972(a)—and gainful—done for pay or profit, whether or not a profit is realized, id. §§ 404.1572(b), 416.972(b). If an individual has earnings from employment or self-employment above a specific level set out in the regulations, he is generally presumed to be able to engage in substantial gainful activity. Id. §§ 404.1574-.1575, 416.974-.975.
B. Severe Impairment
An impairment is "severe" if it significantly limits an individual's ability to perform basic work activities. See id. §§ 404.1521, 416.921. When determining whether a claimant's physical and mental impairments are sufficiently severe, the ALJ must consider the combined effect of all of the claimant's impairments. 42 U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G). The ALJ must evaluate a disability claimant as a whole person and not in the abstract, having several hypothetical and isolated illnesses. Walker v. Bowen, 889 F.2d 47, 49-50 (4th Cir. 1989) (stating that, when evaluating the effect of a number of impairments on a disability claimant, "the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them"). Accordingly, the ALJ must make specific and well-articulated findings as to the effect of a combination of impairments when determining whether an individual is disabled. Id. at 50 ("As a corollary to this rule, the ALJ must adequately explain his or her evaluation of the combined effects of the impairments."). If the ALJ finds a combination of impairments to be severe, "the combined impact of the impairments shall be considered throughout the disability determination process." 42 U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G).
C. Meets or Equals an Impairment Listed in the Listings of Impairments
If a claimant's impairment or combination of impairments meets or medically equals the criteria of a listing found at 20 C.F.R. Pt. 404, Subpt. P, App.1 and meets the duration requirement found at 20 C.F.R. §§ 404.1509 or 416.909, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience. 20 C.F.R. §§ 404.1520(d), 416.920(a)(4)(iii), (d).
The Listing of Impairments is applicable to SSI claims pursuant to 20 C.F.R. §§ 416.911, 416.925.
D. Past Relevant Work
The assessment of a claimant's ability to perform past relevant work "reflect[s] the statute's focus on the functional capacity retained by the claimant." Pass v. Chater, 65 F.3d 1200, 1204 (4th Cir. 1995). At this step of the evaluation, the ALJ compares the claimant's residual functional capacity with the physical and mental demands of the kind of work he has done in the past to determine whether the claimant has the residual functional capacity to do his past work. 20 C.F.R. §§ 404.1560(b), 416.960(b).
Residual functional capacity is "the most [a claimant] can still do despite [his] limitations." 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).
E. Other Work
As previously stated, once the ALJ finds that a claimant cannot return to her prior work, the burden of proof shifts to the Commissioner to establish that the claimant could perform other work that exists in the national economy. See 20 C.F.R. §§ 404.1520(f)-(g), 416.920(f)-(g); Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992). To meet this burden, the Commissioner may sometimes rely exclusively on the Medical-Vocational Guidelines (the "grids"). Exclusive reliance on the "grids" is appropriate where the claimant suffers primarily from an exertional impairment, without significant nonexertional factors. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e); Gory v. Schweiker, 712 F.2d 929, 930-31 (4th Cir. 1983) (stating that exclusive reliance on the grids is appropriate in cases involving exertional limitations). When a claimant suffers from both exertional and nonexertional limitations, the grids may serve only as guidelines. Gory, 712 F.2d at 931. In such a case, the Commissioner must use a vocational expert to establish the claimant's ability to perform other work. 20 C.F.R. §§ 404.1569a, 416.969a; see Walker, 889 F.2d at 49-50 ("Because we have found that the grids cannot be relied upon to show conclusively that claimant is not disabled, when the case is remanded it will be incumbent upon the [Commissioner] to prove by expert vocational testimony that despite the combination of exertional and nonexertional impairments, the claimant retains the ability to perform specific jobs which exist in the national economy."). The purpose of using a vocational expert is "to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform." Walker, 889 F.2d at 50. For the vocational expert's testimony to be relevant, "it must be based upon a consideration of all other evidence in the record, . . . and it must be in response to proper hypothetical questions which fairly set out all of claimant's impairments." Id. (citations omitted).
An exertional limitation is one that affects the claimant's ability to meet the strength requirements of jobs. 20 C.F.R. §§ 404.1569a(a), 416.969a(a). A nonexertional limitation is one that affects the ability to meet the demands of the job other than the strength demands. Id. Examples of nonexertional limitations include but are not limited to difficulty functioning because of being nervous, anxious, or depressed; difficulty maintaining attention or concentrating; difficulty understanding or remembering detailed instructions; difficulty seeing or hearing. 20 C.F.R. §§ 404.1569a(c)(1), 416.969a(c)(1). --------
II. Developing the Record
The ALJ has a duty to fully and fairly develop the record. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). The ALJ is required to inquire fully into each relevant issue. Snyder, 307 F.2d at 520. The performance of this duty is particularly important when a claimant appears without counsel. Marsh v. Harris, 632 F.2d 296, 299 (4th Cir. 1980). In such circumstances, "the ALJ should scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts, . . . being especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited." Id. (internal quotations and citations omitted).
III. Treating Physicians
If a treating physician's opinion on the nature and severity of a claimant's impairments is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" in the record, the ALJ must give it controlling weight. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). The ALJ may discount a treating physician's opinion if it is unsupported or inconsistent with other evidence, i.e., when the treating physician's opinion does not warrant controlling weight, Craig, 76 F.3d at 590, but the ALJ must nevertheless assign a weight to the medical opinion based on the 1) length of the treatment relationship and the frequency of examination; 2) nature and extent of the treatment relationship; 3) supportability of the opinion; 4) consistency of the opinion with the record a whole; 5) specialization of the physician; and 6) other factors which tend to support or contradict the opinion, 20 C.F.R. §§ 404.1527(c), 416.927(c). Similarly, where a treating physician has merely made conclusory statements, the ALJ may afford the opinion such weight as is supported by clinical or laboratory findings and other consistent evidence of a claimant's impairments. See Craig, 76 F.3d at 590 (holding there was sufficient evidence for the ALJ to reject the treating physician's conclusory opinion where the record contained contradictory evidence).
In any instance, a treating physician's opinion is generally entitled to more weight than a consulting physician's opinion. See Mitchell v. Schweiker, 699 F.2d 185, 187 (4th Cir. 1983) (stating that treating physician's opinion must be accorded great weight because "it reflects an expert judgment based on a continuing observation of the patient's condition for a prolonged period of time"); 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). An ALJ determination coming down on the side of a non-examining, non-treating physician's opinion can stand only if the medical testimony of examining and treating physicians goes both ways. Smith v. Schweiker, 795 F.2d 343, 346 (4th Cir. 1986). Further, the ALJ is required to review all of the medical findings and other evidence that support a medical source's statement that a claimant is disabled. 20 C.F.R. §§ 404.1527(d), 416.927(d). However, the ALJ is responsible for making the ultimate determination about whether a claimant meets the statutory definition of disability. Id.
IV. Medical Tests and Examinations
The ALJ is required to order additional medical tests and exams only when a claimant's medical sources do not give sufficient medical evidence about an impairment to determine whether the claimant is disabled. 20 C.F.R. §§ 404.1517, 416.917; see also Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986). The regulations are clear: a consultative examination is not required when there is sufficient medical evidence to make a determination on a claimant's disability. 20 C.F.R. §§ 404.1517, 416.917. Under the regulations, however, the ALJ may determine that a consultative examination or other medical tests are necessary. Id.
V. Pain
Congress has determined that a claimant will not be considered disabled unless he furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing the existence of a medical impairment that could reasonably be expected to produce the pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). Social Security Ruling ("SSR") 16-3p provides, "[i]n considering the intensity, persistence, and limiting effects of an individual's symptoms, we examine the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record." Social Security Ruling 16-3p Titles II and XVI: Evaluation of Symptoms In Disability Claims, 82 Fed. Reg. 49,462, 49,464 (Oct. 25, 2017); see also 20 C.F.R. § 404.1529(c)(1)-(c)(2) (outlining evaluation of pain).
In evaluating claims of disabling pain, the ALJ must proceed in a two-part analysis. Morgan v. Barnhart, 142 F. App'x 716, 723 (4th Cir. 2005) (unpublished opinion); see also SSR 16-3p, 82 Fed. Reg. at 49,463. First, "the ALJ must determine whether the claimant has produced medical evidence of a 'medically determinable impairment which could reasonably be expected to produce" the alleged symptoms. Id. (quoting Craig, 76 F.3d at 594); see also SSR 16-3p, 82 Fed. Reg. at 49,463. Second, the ALJ must evaluate "the intensity and persistence of an individual's symptoms such as pain and determine the extent to which an individual's symptoms limit his or her ability to perform work-related activities . . . or to function independently." SSR 16-3p, 82 Fed. Reg. at 49,464; see also 20 C.F.R. § 404.1528 (noting that the ALJ must consider all of a claimant's statements about his symptoms, including pain, and determine the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence).
APPLICATION AND ANALYSIS
RFC Analysis
Social Security Ruling 96-8p provides the process for determining RFC. Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015). The ruling states that the "'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' listed in the regulations." Id. (quoting SSR 96-8p, 61 Fed. Reg. 34,474, 34,475 (July 2, 1996)). "Only after such a function-by-function analysis may an ALJ express RFC in terms of the exertional levels of work." Monroe v. Colvin, 826 F.3d 176, 187 (4th Cir. 2016) (internal quotation marks omitted). SSR 96-8p also 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).'" Mascio, 780 F.3d at 636 (quoting SSR 96-8p, 61 Fed. Reg. at 34,478). Additionally, the Fourth Circuit has held that "[a] necessary predicate to engaging in substantial evidence review is a record of the basis for the ALJ's ruling, including a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence." Monroe, 826 F.3d at 189 (alteration in original and internal quotation marks omitted). To create such a record, the ALJ must "explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved." Rehoric v. Berryhill, No. 1:17-cv-02634-MGL-SVH, 2018 WL 7021611, at *12 (D.S.C. Dec. 28, 2018) (internal quotation marks omitted), Report and Recommendation adopted by 2019 WL 188690 (D.S.C. Jan. 14, 2019). The Fourth Circuit has described the required discussion as "build[ing] an accurate and logical bridge from the evidence to [the ALJ's] conclusion." Monroe, 826 F.3d at 189 (internal quotation marks omitted).
ALJ's RFC Determination
Here, in determining Plaintiff's RFC, the ALJ confirmed the presence of objective medical evidence showing the existence of medical impairments that could reasonably be expected to cause the alleged symptoms. [R. 19.] The ALJ explained that
[t]he evidence shows that the claimant is 58 years old with a 10th grade education. The claimant's severe impairment includes left hip disorder, lumbar spine disorder, and depression.
In March 2016, claimant underwent left hip hemiarthroplasty. Follow up treatment notes from Camden Bone and Joint in October 2016 show that the claimant is status post left hip hemiarthroplasty. Claimant reported some discomfort over the lateral aspect of her left hip. However, she reported she is doing well. She walked with a cane but can walk unsupported. The incision was well healed and nontender. X-ray of the left hip showed a well-fixed femoral arthroplasty (Exhibit 2F).
Physical therapy records from West Wateree Medical Complex in April 2016 show the claimant complained of hip pain. Claimant is noted to be making progress with decreased pain, improving range of motion, improved strength and improved functional ability. Claimant limping slightly but reports a sore spot on plantar surface of left foot. Claimant was limping prior to hip surgery. Claimant was discharged from physical therapy to continue home exercises (Exhibit 1F). . . .[R. 20.]
Treatment notes from Sandhills Medical Foundation in February 2017 indicate that the claimant presented to establish care. The claimant complained of hip problems. On exam, the claimant appeared in no acute distress. Claimant was alert and oriented times three. Claimant had decreased range of motion in the left hip. X-ray of the claimant's left hip showed total left hip replacement with normal mineralization and soft tissue. Degenerative disc disease was visualized in the lower lumbar spine. Claimant's assessment includes arthritis of left hip (Exhibit 3F).
Next, at step two of the analysis, the ALJ found that Plaintiff's statements concerning the intensity, persistence, and limiting effects of the alleged symptoms during the relevant time period were not entirely credible. [R. 19-20.] The ALJ explained his findings as follows:
The evidence does not show significant strength deficits, circulatory compromise, neurological deficits, muscle spasms, or muscle atrophy or dystrophy that are often associated with long standing, severe or intense pain, and physical inactivity. The claimant's symptoms and their impact on her ability to work are not entirely consistent with the medical evidence.[R. 21-22.] As a result, the ALJ determined that Plaintiff retained the capacity to perform light work with certain exertional limitations and, thus, retained the ability to perform her past relevant work as a cook. [R. 19, 22.]
Treatment notes show the claimant appearing in no acute distress. There was no clubbing, cyanosis, or edema in the extremities. Claimant was alert and oriented to person, place and time. Her affect, mood, and judgment were all normal. Cranial nerves II through XII were intact (Exhibits 3F, 8F, and 9F).
Discussion
Plaintiff argues that the ALJ failed to explain his consideration of limitations in Plaintiff's ability to stand and walk and her need for a cane in assessing her RFC and her ability to perform sustained work activity during an 8-hour day. [Doc. 14 at 10.] Plaintiff contends the ALJ failed to explain his consideration of her alleged limitations due to her hip pain and argues that her limitations in standing and walking and her need for a cane undermine the ALJ's RFC finding. [Id. at 11, 13.]
Plaintiff testified that she has sharp pain in her hip that comes and goes. [R. 42-43.] Plaintiff testified that the pain is triggered by changes in the weather and that standing or sitting in one position for too long makes the pain worse. [R. 43.] With respect to her cane, Plaintiff testified that she uses her cane daily when standing for 30-45 minutes. [Id.] Although she was prescribed a walker, she does not use the walker. [Id.] Plaintiff testified that physical therapy and pain medications helped her manage her pain. [R. 44.] She testified that walking with the cane relieves some of the pressure in her left hip. [Id.] Plaintiff testified she can stand about 30 minutes without a cane and about an hour with her cane. [R. 45.] She also testified she can walk about 30 minutes with a cane. [Id.] Plaintiff testified she could sit for about 45-60 minutes before having to stand up and stretch. [R. 46.] Plaintiff testified that she could not do her previous work because she is unable to lift while using a cane and because the jobs required a lot of standing an walking. [R. 50.]
In presenting hypotheticals to the VE, the ALJ included limitations to light work with additional limitations to Plaintiff's ability to occasionally use her feet bilaterally to push and pull foot controls; occasionally climb ramps and stairs; never climb ladders, ropes, or scaffolds; occasionally balance, kneel, crouch, and crawl; and never be exposed to extreme cold, vibration, unprotected heights or hazardous moving mechanical parts. [R. 55.] The ALJ did not include any limitations in his hypothetical regarding Plaintiff's ability to stand or walk, and he did not include the use of a cane in the RFC.
A review of treatment notes indicate that Plaintiff had a left hip hemiarthroplasty in March 2016, and she completed physical therapy in June 2016 with a lower extremity impairment rating of 41.25% on the lower extremity functional scale. [R. 269.] In light of this score, Plaintiff is a limited community ambulator, is unable to run, has difficulty walking, has moderate difficulty walking two blocks, and has difficulty walking between rooms. See Clinical Interpretation of a Lower-Extremity Functional Scale-Derived Computerized Adaptive Test, Physical Therapy, Volume 89, Issue 9, September 2009, pages 957-968, Table 2, available at https://academic.oup.com/ptj/article/89/9/957/2737660, (last visited Apr. 28, 2020).
Light work, by definition, requires that Plaintiff have the ability to stand or walk, off and on, for a total of approximately 6 hours of an 8-hour workday. Sitting may occur intermittently during the remaining time. SSR 83-10, 1983 WL 31251, at *5 (Jan. 1, 1983). The regulations define light work as follows:
The regulations define light work as lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted in a particular light job may be very little, a job is in this category when it requires a good deal of walking or standing—the primary difference between sedentary and most light jobs. A job is also in this category when it involves sitting most of the time but with some pushing and pulling of arm-hand or leg-foot controls, which require greater exertion than in sedentary work; e.g., mattress sewing machine operator, motor-grader operator, and road-roller operator (skilled and semiskilled jobs in these particular instances). Relatively few unskilled light jobs are performed in a seated position.SSR 83-10, 1983 WL 31251, at *5 (Jan. 1, 1983). Many unskilled light jobs are performed primarily in one location with the ability to stand being more critical than the ability to walk. [Id.] The presence of particular additional exertional or nonexertional limitations, however, may affect the range of work a plaintiff can perform. SSR 83-14, 1983 WL 31254, *4 (Jan. 1, 1983).
As noted, "most light jobs . . . require a person to be standing or walking most of the workday." SSR 83-14, 1983 WL 31254, at *4. The Court notes that the ALJ does not appear to have considered Plaintiff's use of a cane or her alleged limitations in standing and walking in formulating the physical RFC, even in light of finding Plaintiff capable of performing her past relevant work as a cook. Appendix One, however, provides that "[t]he requirement to use a hand-held assistive device may [] impact on the individual's functional capacity by virtue of the fact that one or both upper extremities are not available for such activities as lifting, carrying, pushing, and pulling." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.00(J)(4). By expressing Plaintiff's RFC without first resolving these issues-or even explicitly identifying them-the ALJ "created the danger that the [function-by-function-analysis] rule identifies," namely, that the ALJ would "'overlook limitations or restrictions that would narrow the ranges and types of work'" that Plaintiff was able to perform. Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting SSR 96-8p, 61 Fed. Reg. at 34,476). The error is most concerning as it pertains to the ALJ's failure to address his consideration of Plaintiff's use of a cane and her allegations regarding her limited ability to stand and walk during the workday. See Morgan v. Colvin, No. 5:15-cv-00266-D, 2016 WL 4217822, at *7 (E.D.N.C. July 21, 2016) (holding that ALJ erred by failing to explain what effect the claimant's use of a boot, wheelchair, and cane had on her ability to work "[g]iven [claimant's] testimony that she could only stand for a few minutes and walk 15-20 minutes with the cane, along with her . . . left-side lower extremity weakness") (citation omitted), Report and Recommendation adopted by 2016 WL 4218333 (D.S.C. Aug. 9, 2016).
The Fourth Circuit has "not adopted a rule of per se reversal for errors in expressing the RFC before analyzing the claimant's limitation function by function." Monroe v. Colvin, 826 F.3d 176, 188 (4th Cir. 2016). However, the Fourth Circuit has held that "[r]emand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review." Mascio, 780 F.3d at 736 (internal quotation marks omitted). That is exactly the case here.
Plaintiff indicated that her job as a cook required her to stand or walk 6 to 10 hours per day, sit for 0 hours per day, and lift up to 25 to 30 pounds at times during the day. [R. 211.] Because the ALJ did not explain his consideration of Plaintiff's alleged limitations on her ability to stand and walk, or resolve whether Plaintiff was limited in her ability to walk with her prescribed cane, the Court "cannot determine whether the hypothetical questions posed to the VE included all of [Plaintiff's] functional limitations as they needed to do in order to be useful." Monroe, 826 F.3d at 188 (citing Hines v. Barnhart, 453 F.3d 559, 566 (4th Cir. 2006)). In other words, if Plaintiff is indeed limited regarding her ability to stand and walk or required the use of a cane to stand and walk, the VE's testimony regarding jobs that could be performed by a hypothetical person who was not so limited would be irrelevant. Accordingly, the undersigned concludes that the case should be remanded and the ALJ should be directed to consider the extent to which Plaintiff is limited in her ability to stand and walk and her need for using a cane to do the same. Once the ALJ has resolved this issue, he will be able to properly consider Plaintiff's ability to perform her past relevant work and/or other jobs that exist in significant numbers in the national economy. See Monroe, 826 F.3d at 188-89 (citing Mascio, 780 F.3d at 636).
Here, the ALJ's decision fails to recount Plaintiff's testimony regarding her symptoms and limitations, let alone explain what parts of the testimony the ALJ found to be consistent with the medical evidence. Assuming the ALJ again determines on remand that Plaintiff is capable of performing light work with the exceptions the ALJ noted, the ALJ should explain how and to what degree Plaintiff's ability to walk and ability to stand are limited, her need for a cane to stand and walk, and how the medical evidence supports those determinations. Only with this analysis will the Court be able to engage in meaningful review of the ALJ's decision.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g), and the case be REMANDED to the Commissioner for further administrative action consistent with this Report and Recommendation.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge April 28, 2020
Greenville, South Carolina