Opinion
C. A. 2:22-cv-01003-BHH-MGB
10-14-2022
AMANDA FORD, Plaintiff, v. KILOLO KIJAKAZI, [1] Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE
Plaintiff Amanda Ford (“Plaintiff”), 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”) and Supplemental Security Income (“SSI”) under the Social Security Act (the “Act”). This matter was referred to the Magistrate Judge for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and Title 28, United States Code, Section 636(b)(1)(B). For the reasons set forth herein, the undersigned recommends the Court affirm the Commissioner's decision.
RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS
Plaintiff initially filed applications for DIB and SSI on June 19, 2019, alleging a disability onset date of April 22, 2019. (R. at 10.) Plaintiff was 39 years old on her alleged disability onset date. (R. at 20.) Plaintiff claimed disability due, inter alia, multiple sclerosis, endometriosis, obstructive sleep apnea, restless leg syndrome, neurocognitive disorder, “anxiety problem,” “difficulty falling or staying asleep,” incontinence, and “worsening of multiple sclerosis.” (R. at 283.) Plaintiff has a high school education and past relevant work as a pet and supplies sales person and a composite job of animal hospital clerk and vet tech. (R. at 20.) Her applications were both denied initially and on reconsideration. (R. at 10.) After an online video hearing before an Administrative Law Judge (“ALJ”) on October 28, 2021, the ALJ issued a decision on November 16, 2021, in which the ALJ found that Plaintiff was not disabled. (R. at 10-22.) The Appeals Council denied Plaintiff's request for review, (R. at 1-5), making the ALJ's decision the Commissioner's final decision for purposes of judicial review.
In making the determination that the Plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant meets the insured status requirements of the Social Security Act through December 31, 2024.
(2) The claimant has not engaged in substantial gainful activity since April 22, 2019, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
(3) The claimant has the following severe impairments: multiple sclerosis and obesity (20 CFR 404.1520(c) and 416.920(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, 404.1526, 416.920(d), 416.925 and 416.926).
(5) After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a); can never climb; can occasionally balance, stoop, kneel, crouch, and crawl; can frequently reach overhead, handle, and finger; can tolerate frequent exposure to extreme heat and humidity; and no exposure to workplace hazards.
(6) The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
(7) The claimant was born on June 26, 1979 and was 39 years old, which is defined as a younger individual age 18-44, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
(8) The claimant has at least a high school education (20 CFR 404.1564 and 416.964).
(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 residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969a).
(11) The claimant has not been under a disability, as defined in the Social Security Act, from April 22, 2019, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).(R. at 10-22.)
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). The Act also provides that SSI disability benefits shall be available for aged, blind, or disabled persons who have income and resources below a specific amount. See 42 U.S.C. § 1381 et seq. “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.” 42 U.S.C. § 423(d)(1)(A) (DIB context); 42 U.S.C. § 1382c(a)(3)(A) (SSI context).1F
“[T]he definition of disability is the same under both DIB and SSI....” Morgan v. Saul, 9:19-CV-1390-BHH-BM, 2020 WL 3318630, at *1 n.1 (D.S.C. June 3, 2020) (citing Emberlin v. Astrue, No. 06-4136, 2008 WL 565185, at *1n.3 (D.S.D. Feb. 29, 2008)).
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 Social Security Administration's official Listing of Impairments found at 20 C.F.R. Part 404, 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. 20 C.F.R. § 404.1520 (DIB context); 20 C.F.R. § 416.920 (SSI context). If an individual is found not disabled at any step, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a)(4) (DIB context); 20 C.F.R. § 416.920(a)(4) (SSI context).
The claimant bears the burden of proof with respect to the first four steps of the analysis. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); Patterson v. Comm'r of Soc. Sec. Admin., 846 F.3d 656, 659 (4th Cir. 2017). Once the claimant has established an inability to return to his past relevant work, the burden shifts to the Commissioner to show that the claimant-considering his age, education, work experience, and residual functional capacity-can perform alternative jobs and that such jobs exist in the national economy. SSR 82-62, 1982 WL 31386, at *3; Grant, 699 F.2d at 191; Pass, 65 F.3d at 1203; Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016).
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the Commissioner supported his findings with substantial evidence and applied the correct law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015); Woods v. Berryhill, 888 F.3d 686, 691 (4th Cir. 2018); Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 94 (4th Cir. 2020); 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). Consequently, the Act precludes a de novo review of the evidence and requires that the court 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); Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012); Mascio, 780 F.3d at 640; Dowling v. Comm'r of Soc. Sec. Admin., 986 F.3d 377, 383 (4th Cir. 2021); 42 U.S.C. § 405(g).
“Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion.” Dowling, 986 F.3d at 383 (citing Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015)). It is “more than a mere scintilla of evidence but may be less than a preponderance.” Pearson, 810 F.3d at 207 (citing Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012)). In reviewing for substantial evidence, the court does not undertake to “reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ].” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); Hancock, 667 F.3d at 472; Arakas, 983 F.3d at 95; Dowling, 986 F.3d at 383. “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled,” the reviewing court must defer to the ALJ's decision. Shinaberry v. Saul, 952 F.3d 113, 123 (4th Cir. 2020) (citing Hancock, 667 F.3d at 472).
However, the court does not “reflexively rubber-stamp an ALJ's findings.” Dowling, 986 F.3d at 383 (citing Lewis v. Berryhill, 858 F.3d 858, 870 (4th Cir. 2017)). An ALJ may not cherrypick, misstate, or mischaracterize material facts. Arakas, 983 F.3d at 99 (citing Lewis, 858 F.3d at 869). Rather, ALJs “must ‘build an accurate and logical bridge' from the evidence to their conclusions.” Arakas, 983 F.3d at 95 (quoting Monroe, 826 F.3d at 189).
DISCUSSION
Plaintiff asserts that the ALJ's decision is not supported by substantial evidence because the ALJ failed to account for Plaintiff's chronic fatigue in her assessment of Plaintiff's residual functional capacity (“RFC”). (Dkt. No. 8 at 15.) The Commissioner responds that substantial evidence supports the ALJ's finding that Plaintiff's limitations do not preclude all work activity. (Dkt. No. 10.)
Upon review of the parties' arguments, the decision, and the record as a whole, the undersigned agrees that the ALJ thoroughly considered the evidence in the record to find that Plaintiff could perform sedentary work with certain limitations. The ALJ provided detailed reasons for her conclusion that Plaintiff is not disabled, and the undersigned finds the ALJ's decision is supported by substantial evidence. For these reasons, as discussed further below, the undersigned recommends the Court affirm the Commissioner's decision.
A. The ALJ's Decision
The ALJ issued a thorough and comprehensive decision, in which she considered Plaintiff's alleged impairments in detail throughout her analysis. (R. at 10-22.) The ALJ prefaced her Step Two analysis by noting when an impairment or combination of impairments is considered to be “severe” or “not severe.” (R. at 12.) At Step Two, the ALJ noted that Plaintiff “admitted” that certain conditions were “non-severe impairments,” including her “chronic fatigue.” (R. at 14.) Here, the ALJ cited to Plaintiff's pre-hearing brief, in which Plaintiff listed “chronic fatigue” under her list of “non-severe impairments” and cited to treatment records from August 20, 2014 as evidentiary support. (R. at 14, 365-66, 1057-59, 1260-62.) The ALJ ultimately found that Plaintiff's chronic fatigue was a non-severe impairment, noting, inter alia, that “Jeanne Williams, ANP, noted diagnosis of insomnia and incontinence in December of 2016. It was treated with behavioral changes, rather than medication.” (R. at 14.) The ALJ also noted here that a “[p]olysomnography in April of 2019 showed ‘moderate' obstructive sleep apnea, treated successfully with CPAP (Ex. B2F/5-6, 38).” (R. at 14.) The ALJ discussed evidence pertaining to Plaintiff's fatigue when finding that she had mild limitations in concentrating, persisting, or maintaining pace. Specifically, the ALJ noted, inter alia, that
In 2019, Dr. Brevetta reported improved fatigue with normal orientation, alertness, and neuro-psych signs (Ex. B3F/10-28; B14F/13-33). In 2020, Dr. Jain noted complaints of difficulty concentrating and following conversations. Dr. Jain and associates observed normal orientation, attention, concentration, object-naming, and other neuro-psych signs (Ex. B8F/6, 2227). From February to November of 2020, Ms. Reeves noted normal alertness, orientation, and other neuro-psych signs (Ex. B9F/5-23; B10F/8-51; B18F/188-274). From March to June of 2021, Dr. Lapeyrolerie and associates noted normal alertness, orientation, and other neuropsych signs (Ex. B18F/53-156). The negative findings of normal impulse control, alertness, attention span, focus on topic or concentration, perception, and orientation do not support moderate limitations in this area.(R. at 15.) Relatedly, the ALJ found that the mental opinions in the record supported finding Plaintiff's mental impairments were non-severe:
The undersigned evaluated all mental opinions per 20 CFR 404.1520c and 416.920c. In October of 2019, Xanthia Harkness, PhD, reviewed the mental evidence for DDS and found diagnoses of neurocognitive disorder, depression, and anxiety. Dr. Harkness found mild mental limitations in all four major areas of mental functioning. Dr. Harkness advised the claimant's mental impairments nonsevere (Ex. B1A; B2A). In February of 2021 Michael Neboschick, PhD, agreed (Ex. B5A; B6A). They supported their opinion with a review of the record. Dr. Brevetta's negative psychiatric signs are consistent with nonsevere mental impairments (Ex. B3F/10-27; B14F/13-33). Dr. Jain's findings of occasional memory and concentration complaints but consistently normal mood and neuropsych signs are consistent with mild mental impairments (Ex. B8F/6-27; B17F/13-33). Dr. Lapeyrolerie's and Ms. Reeves's reports of stable depression with normal mental status signs are consistent with nonsevere mental impairments (Ex. B9F/5-23; B10F/8-51; B18F/53-156, 188-274). The undersigned found these opinions persuasive.(R. at 16.)
The ALJ continued her detailed discussion of Plaintiff's impairments at Step Four and addressed her reasons for finding Plaintiff could perform sedentary work with certain limitations. (R. at 17-20.) The ALJ expressly stated here that she considered “all symptoms” when assessing Plaintiff's RFC. (R. at 17.) She first acknowledged Plaintiff's subjective statements as to her alleged limitations, including that Plaintiff's impairments restricted her ability to, inter alia, “work for a full day without fatigue or sleepiness, drive, stand and walk for two hours at a time, work for eight-hours a day due to weakness, . . . work at a normal pace due to weakness, stand for more than five minutes, [and] walk more than twenty feet.” (R. at 17.) The ALJ concluded that Plaintiff's “medically determinable impairments could reasonably be expected to cause some of the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” (R. at 18.)
The ALJ proceeded to discuss at length her reasons for affording only certain limitations based on Plaintiff's alleged impairments. She detailed Plaintiff's treatment history, noting, inter alia, that Plaintiff's multiple sclerosis was treated with Ocrevus and steroids and that
In May of 2020, Dr. Jain found no relapse on Ocrevus and that her medications for multiple sclerosis symptoms were working with only fatigue as a lingering concern (Ex. B8F/5). Dr. Jain continued to find her clinically stable (Ex. B8F/7). In November of 2020, Dr. Jain prescribed a small cortisone injection and tissue massage for lower extremity muscle spasm (Ex. B14F/10; B15F/10). In April and June of 2021, the claimant complained only of mild fatigue with too much activity (Ex. B18F/48, 97).(R. at 18.) The ALJ concluded that “[t]he success of treatment, observations of specialists, and the claimant's statements to treatment providers are inconsistent with disabling limitations.” (R.at 18.) The ALJ further found that “[t]he medical evidence supports some physical limitations but not the degree alleged.” (R. at 18.) Relevant here, she noted that
From February to November of 2019, Dr. Jain noted complaints of fatigue, mildly reduced motor strength in the extremities (four out of five), positive Romberg, occasional urinary incontinence, and inability to tandem, toe, and heel walk. Dr. Jain otherwise found normal sensation, reflexes, gait, and coordination (Ex. B2F/13-31; B4F/12-34; B16F/12-44; B17F/12-34).... From May to November of 2020, Dr. Jain noted complaints of fatigue, complaints of left arm weakness, and complaints of lower extremity muscle spasms. Dr. Jain observed gait favoring the right leg, and otherwise normal strength, sensation, coordination, and reflexes (Ex. B8F/6, 22; B14F/5).(R. at 18-19.) The ALJ found that this evidence supported finding Plaintiff could perform sedentary work with certain limitations:
The mild weakness and occasional lower extremity muscle spasms support sedentary work with occasional postural changes. These also necessitate environmental limitations to avoid exacerbating symptoms.... [T]he stable findings on MRIs of the head and brain with treatment and the consistently negative clinical signs regarding coordination, extremity function, sensation, reflexes, ambulation, and manipulation are inconsistent with disabling physical limitations.(R. at 19.)
Finally, the ALJ found that the opinion evidence supported her RFC assessment. She noted that the two expert state agency medical consultants agreed Plaintiff could perform sedentary work. (R. at 19.) She further found that “Dr. Jain's reports of mildly reduced motor strength in the extremities (four out of five) and otherwise normal sensation, reflexes, gait, and coordination are consistent with continued performance of reduced sedentary work (Ex. B2F/13-31; B4F/12-34; B8F/6, 22; B14F/5; B16F/12-44; B17F/12-34)” and “Ms. Reeves reports of no significant positive musculoskeletal or neurological signs are consistent with continued performance of sedentary work (Ex. B9F/5-23; B10F/8-51; B18F/17-168, 188-274).” (R. at 19.) The ALJ concluded that Plaintiff's RFC “is supported by the treatment history, medical images and labs, clinical and mental status signs in medical exams, the claimant's statements and activities, and the evidence supported opinions of physicians and care providers.” (R. at 19.)
After considering Plaintiff's RFC and the vocational expert's testimony, the ALJ found that Plaintiff is capable of performing jobs that exist in significant numbers in the national economy. (R. at 21.) The ALJ therefore concluded that Plaintiff was not disabled during the period at issue. (R. at 22.)
B. RFC Analysis
Plaintiff argues that the ALJ improperly dismissed Plaintiff's chronic fatigue as a non-severe impairment “without providing an explanation, supported by the record, for doing so when formulating [Plaintiff's] RFC.” (Dkt. No. 8 at 16.)
“[R]esidual functional capacity is the most [a claimant] can still do despite [her] limitations.” Felton-Miller v. Astrue, 459 Fed.Appx. 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, 780 F.3d at 636 (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 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 claimant carries the burden to show that prejudice resulted from any error. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009).
According to Plaintiff, the ALJ's “discussion of [Plaintiff's] non-severe impairments does not properly address the record evidence of continued, chronic fatigue.” (Dkt. No. 8 at 16.) Plaintiff asserts that this error is not harmless because the Vocational Expert testified that an “individual being off task 15% or more of a workday in addition to regularly scheduled breaks” would not be able to work. (Id. at 17 (citing R. at 64).) The Commissioner responds that the ALJ's RFC finding is supported by substantial evidence. (Dkt. No. 10 at 8-14.) The Commissioner asserts that fatigue is a symptom, not an impairment under the regulations, and that “the ALJ recognized Plaintiff experienced fatigue due to her impairments including [multiple sclerosis] and took that into account when assessing the RFC.” (Id. at 9.) The Commissioner further responds that the ALJ was not required to include an off-task limitation in Plaintiff's RFC where it was unsupported by the record. (Id. at 13.)
As demonstrated above, the ALJ thoroughly reviewed the record to determine Plaintiff's RFC. See supra section A. The ALJ considered Plaintiff's subjective statements, evaluated relevant treatment records, and discussed the opinion evidence before concluding that the record did not support a finding of disabling work limitations. (R. at 17-20.) She expressly considered evidence pertaining to Plaintiff's chronic fatigue both in finding it to be a non-severe impairment at Step Two and as a symptom of Plaintiff's multiple sclerosis at Step Four. (R. at 14-19.) As detailed above, the ALJ found that the record evidence, including that of Plaintiff's fatigue, was inconsistent with disabling limitations. (R. at 18-19.)
Ultimately, Plaintiff disagrees with the ALJ's evaluation of the record and her decision not to include certain work-related limitations in Plaintiff's RFC; specifically, a limitation to being “off task 15% or more of a workday.” (Dkt. No. 13 at 4.) However, the ALJ undeniably conducted a thorough review of the relevant evidence and justified her RFC finding with substantial evidence. Notably, there is no opinion evidence opining that Plaintiff's fatigue would cause her to be off task 15% or more of a workday. Rather, Plaintiff draws this limitation from her own interpretation of the evidence. While Plaintiff disagrees with the ALJ's interpretation of the evidence, it is not for the Court to substitute its judgment for that of the ALJ. See Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (holding that a reviewing court should not undertake to reweigh conflicting evidence, make credibility determinations, or substitute its judgment for that of the ALJ); Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996) (“The duty to resolve conflicts in the evidence rests with the ALJ, not with a reviewing court”); Kellough v. Heckler, 785 F.2d 1147, 1149 (4th Cir. 1986) (“If the Secretary's dispositive factual findings are supported by substantial evidence, they must be affirmed, even in cases where contrary findings of an ALJ might also be so supported.”) (citation omitted).
In sum, the undersigned finds no error in the ALJ's RFC assessment and recommends that remand is not warranted on this basis.
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that the Commissioner's decision be AFFIRMED.
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 835
Charleston, South Carolina 29402
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).