Opinion
C/A No. 2:17-cv-0024-MGL-MGB
01-18-2018
JOYCE A. EVERETTE, Plaintiff, v. NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
This case is before the court for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., concerning the disposition of Social Security cases in this District, and Title 28, United States Code, Section 636(b)(1)(B). The Plaintiff, Joyce A. Everette, brought this action 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 Administration regarding her claim for disability insurance benefits ("DIB") under Title II of the Social Security Act. For the reasons stated herein, the undersigned recommends that the Commissioner's findings be reversed and remanded for a new hearing.
ADMINISTRATIVE PROCEEDINGS
The Plaintiff applied for DIB on February 26, 2013, and was 51 years old on her alleged disability onset date of March 1, 2008. (R. 143.) The Plaintiff claimed disability for diabetes, neuropathy in both legs, pain in legs caused by water in a bath, and constant pain in both legs. (R. 155.) The Plaintiff's application for DIB was denied initially and on reconsideration. (R. 87-92.) The Plaintiff requested a hearing, which was held on April 21, 2015, before an Administrative Law Judge ("ALJ"). The ALJ issued his decision on May 7, 2015, and it is now the Commissioner's final decision for purposes of judicial review. (R. 65-75.) The Plaintiff filed an appeal to the Appeals Council which was denied review. (R. 1-6.) In making the determination that the Plaintiff was not entitled to benefits, the Commissioner adopted the following findings of the ALJ:
(1) The claimant last met the insured status requirements of the Social Security Act on June 30, 2013.
(2) The claimant did not engage in substantial gainful activity during the period from her alleged onset date of March 1, 2008 through her date last insured of June 30, 2013 (20 CFR 404.1571 et seq.).
(3) Through the date last insured, the claimant had the following severe impairments: a spinal disorder, diabetes mellitus, neuropathy in legs, and obesity (20 CFR 404.1520(c)).
(4) Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
(5) After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) except the claimant is limited to lifting up to 50 pounds occasionally and 25 pounds frequently; standing and walking for at least 6 hours; and sitting for up to 6 hours in an 8-hour workday with normal breaks. The claimant is limited to occasional climbing of ladders, ropes, or scaffolds. She is limited to frequent climbing of ramps or stairs, frequent balancing, frequent stooping, frequent kneeling, frequent crouching, and frequent crawling.
(6) Through the date last insured, the claimant was unable to perform any past relevant work (20 CFR 404.1565).
(7) The claimant was born on September 23, 1956 and was 56 years old, which is defined as an individual of advanced age, on the date last insured (20 CFR 404.1563).
(8) The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564).(R. 65-75.)
(9) Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
(10) Considering the claimant's age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)).
(11) The claimant was not under a disability, as defined in the Social Security Act, at any time from March 1, 2008, the alleged onset date, through June 30, 2013, the date last insured (20 CFR 404.1520(g)).
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 in the Act 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" twelve months. See 42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, the Act has by regulation reduced the statutory definition of "disability" to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment which equals an illness contained in the Administration's official Listing of Impairments found at 20 C.F.R. Part 4, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents him from doing substantial gainful employment. See 20 C.F.R. § 404.1520. If an individual is found not disabled at any step, further inquiry is unnecessary. See 20 C.F.R. § 404.1520(a)(4); see also Hall v. Harris, 658 F.2d 260 (4th Cir. 1981).
A plaintiff is not disabled within the meaning of the Act if she can return to past relevant work as it is customarily performed in the economy or as the claimant actually performed the work. See SSR 82-62, 1982 WL 31386, at *3. The plaintiff bears the burden of establishing her inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5). She must make a prima facie showing of disability by showing that she is unable to return to her past relevant work. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); see also Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
Once an individual has established an inability to return to her past relevant work, the burden is on the Commissioner to come forward with evidence that the plaintiff can perform alternative work and that such work exists in the regional economy. See Grant, 699 F.2d at 191. The Commissioner may carry the burden of demonstrating the existence of jobs available in the national economy which the plaintiff can perform despite the existence of impairments which prevent the return to past relevant work by obtaining testimony from a vocational expert. See id. at 191-92.
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the findings of the Commissioner "are supported by substantial evidence and whether the correct law was applied." Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); see also Richardson v. Perales, 402 U.S. 389 (1971); 42 U.S.C. § 405(g). Consequently, the Act precludes a de novo review of the evidence and requires the court to uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing 42 U.S.C. § 405(g); Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). The phrase "substantial evidence" is defined as:
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Substantial evidence consists of more than a mere scintilla of evidence but may be less than a preponderance.Smith v. Chater, 99 F.3d 635, 637-38 (4th Cir. 1996) (internal quotation marks and citations omitted). Thus, it is the duty of this Court to give careful scrutiny to the whole record to assure that there is a sound foundation for the Commissioner's findings, and that her conclusion is rational. 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. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
DISCUSSION
The Plaintiff asserts that the ALJ erred in the following two ways:
1. The ALJ did not explain his findings regarding the Plaintiff's residual functional capacity, as required by Social Security Ruling 96-8p.(Dkt. No. 14.)
2. The ALJ failed to properly evaluate the credibility of the Plaintiff.
Explanation of Plaintiff's Residual Functional Capacity ("RFC")
"[R]esidual functional capacity is the most [the Plaintiff] can still do despite [her] limitations." Felton-Miller v. Astrue, 459 F. App'x 226, 230 (4th Cir. 2011) (quoting 20 C.F.R. §§ 404.1545(a)). "The RFC assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis...." SSR 96-8P (S.S.A. July 2, 1996); accord Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (internal quotations omitted). The RFC must be based upon all relevant medical evidence and other evidence in the record and may include a claimant's own description of limitations arising from alleged symptoms. 20 C.F.R. § 404.1545(a)(3). The ALJ must consider the cumulative effect of a Plaintiff's multiple impairments in making a disability determination. 42 U.S.C. § 423(d)(2)(B); see Hines v. Bowen, 872 F.2d 56, 59 (4th Cir.1989) (citations omitted) ("[I]n determining whether an individual's impairments are of sufficient severity to prohibit basic work related activities, an ALJ must consider the combined effect of a claimant's impairments.").
Ordinarily, RFC is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis, and the RFC assessment must include a discussion of the individual's abilities on that basis. A "regular and continuing basis" means 8 hours a day, for 5 days a week, or an equivalent work schedule. RFC does not represent the least an individual can do despite his or her limitations or restrictions, but the most.SSR 96-8p, 1996 WL 374184, at *2 (emphases in original).
The ALJ "must consider all the evidence and explain on the record the reasons for his findings, including the reason for rejecting relevant evidence in support of the claim." King v. Califano, 615 F.2d 1018, 1020 (4th Cir. 1980). "Even if legitimate reasons exist for rejecting or discounting certain evidence, the [ALJ] cannot do so for no reason or for the wrong reason." Id. However, "there is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision." Reid v. Comm'r of Soc. Sec., 769 F.3d 861, 865 (4th Cir.2014) (quoting Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir.2005) (per curiam)). As the party attacking the Commissioner's decision, the plaintiff carries the burden to show that prejudice resulted from any error. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009).
Consideration of Plaintiff's Peripheral Neuropathy
The Plaintiff argues that the ALJ's conclusions regarding the Plaintiff's peripheral neuropathy are inconsistent because the ALJ stated that her peripheral neuropathy was controlled, yet she still reported having symptoms of peripheral neuropathy. (Dkt. No. 14 at 17-19.) The ALJ analyzed the Plaintiff's neuropathy in her legs in this RFC assessment as follows:
As for the claimant's neuropathy in legs, the claimant's complaint concerning her leg condition continued during her multiple follow-up evaluation sessions with her medical providers (Exhibit 2F). Since Dr. Graham diagnosed her with diabetes mellitus with neurological manifestations in January 2011, the claimant's providers controlled the neuropathy symptoms with medication such as Doxepin, Gabapentin, and Amitriptyline (Exhibits 2F/47, 55, 60). Dr. Graham reported in August 2011 that the claimant's peripheral neuropathy improved (Exhibit 2F/55).(R. 71.) The ALJ's synopsis of the Plaintiff's neuropathy—i.e. that its symptoms are "controlled ... with medication"—is not an accurate summary of the record. Additionally, while the ALJ cited one instance where the neuropathy improved, there are numerous instances where the neuropathy worsened and continued with significant symptoms.
In January of 2011, the Plaintiff was examined by Dr. Lalonda Graham. (R.328-330.) The Plaintiff reported burning in her feet. On January 14, 2011, the Plaintiff was seen again for diabetes with neurological manifestations. (Tr. 326-327). Dr. Graham noted that the burning in the Plaintiff's feet was "greatly improved" with medication. (Id.) On April 8, 2011, the Plaintiff was seen for diabetes and cramping in her feet at night. (R. 322.) In July of 2011, the Plaintiff returned to Dr. Graham. (R. 320-21.) Dr. Graham noted that the Plaintiff's diabetes was aggravated by "noncompliance with medication regimen." (Id.) The Plaintiff complained of pain in her legs and that her legs were "jumping" while in bed. (R. 320.) The Plaintiff's diabetes was assessed as worsening. (Id.) The Plaintiff told the doctor that the noncompliance was a mistake on her part about the quantity of pills she was supposed to be taking. (Id.)
In August of 2011, the Plaintiff was examined by Dr. Graham to follow up on her neuropathy related to her diabetes. (R. 317-18.) The Plaintiff reported an urge to move her legs at night. She felt heat on the bottom of her feet. She could not tolerate the gabapentin, and amitriptyline was prescribed for neuropathy and restless legs. (Id.) On November 9, 2011, the Plaintiff requested another increase in her amitriptyline dosage because she still experienced leg jerks at night (R. 309-310). On January 9, 2012, the Plaintiff reported that her neuropathy flared up at times, but she felt it was controlled with amitriptyline. (R. 307-308.) By January 31, 2012, the Plaintiff returned with a reaction to amitriptyline, which Dr. Graham changed to nortriptyline (R. 305-306). On June 20, 2012, the Plaintiff still had burning in her legs and feet. (R. 298-299.) She had difficulties sleeping and was tearful when discussing her symptoms. (Id.)
The Plaintiff was referred to a neurologist for "nerve pain in legs." (R. 331.) The Plaintiff saw a physician assistant along with a neurologist on July 31, 2012. (Id.) They concluded the Plaintiff had pain consistent with neuropathy. (Id.) They noted that the Plaintiff had already been treated with "many of the usual treatments" but that they were ineffective or had unbearable side effects. (Id.) The Plaintiff was given samples of Cymbalta to try. (Id.)
In September of 2012, the Plaintiff was examined by Dr. Graham. (R. 266-269.) The Plaintiff's diabetes had worsened, and she had discomfort in her feet from neuropathy (Id.) On October 12, 2012, the Plaintiff was seen by Dr. Graham and had pain that radiated down her legs, which was aggravated by movement, sitting, and standing. (R. 270-272.) She had tenderness to palpation of her right buttocks. (Id.) On May 8, 2013, the Plaintiff was seen by Dr. Graham for diabetes and abdominal pain caused by movement. (R. 277-79.) Dr. Graham "suspect[ed]" that the Plaintiff's pain in her abdomen was attributable to "prolonged healing with neuropathy due to diabetes." (R. 279.) On June 11, 2013, Dr. Graham assessed that the Plaintiff's feet were so sensitive that wearing shoes was "unbearable" at times. (R. 284.)
The ALJ's brief analysis—stating that the Plaintiff's neuropathy was "controlled" by medications and improved in 2011—falls woefully short of fully reflecting the record in this case. "An ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding." Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017) (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)). By stating that the Plaintiff improved in 2011, the ALJ ignores the vast evidence that the Plaintiff consistently complained of pain and regularly sought treatment for it after 2011. This included going to a specialist who found her pain consistent with neuropathy.
The ALJ failed to address how the Plaintiff could stand 6 hours per day and occasionally lift 50 pounds with her neuropathy and its symptoms. While the Plaintiff's treatment notes are clear that her peripheral neuropathy was an ongoing complication of diabetes, the ALJ failed to assess or evaluate the Plaintiff's neuropathic symptoms, including tingling and pain in her lower extremities. These symptoms were not specifically accounted for in the Plaintiff's RFC. Based upon the foregoing, the undersigned is unable to determine whether the ALJ's decision is based upon substantial evidence and, therefore, is constrained to recommend that the matter be remanded for further consideration of the Plaintiff's peripheral neuropathy, as discussed above.
The Plaintiff asserts that if the ALJ had limited to her light work, she would be disabled under the Medical-Vocational Guidelines, commonly referred to as "the grids." (Dkt. No. 14 at 22.) --------
Remaining Allegations of Error
The court does not address the Plaintiff's remaining two arguments that the ALJ failed to properly consider the Plaintiff's diabetes in his RFC analysis and that the ALJ erred by finding the Plaintiff's testimony less than fully credible. In light of the court's recommendation that this matter be remanded for further consideration as discussed above, the court need not address this issue as it may be rendered moot on remand. See Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3d Cir. 2003) (remanding on other grounds and declining to address claimant's additional arguments). However, as part of the overall reconsideration of the claim upon remand, the ALJ should, if necessary, also take into consideration the additional allegation of error raised by the Plaintiff.
RECOMMENDATION
It is therefore RECOMMENDED, for the foregoing reasons, that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be REMANDED for a new hearing consistent with this Report & Recommendation.
IT IS SO RECOMMENDED. January 18, 2018 Charleston, South Carolina
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE