Opinion
C. A. 1:20-4037-RMG-SVH
07-29-2021
Jerri F., [1]Plaintiff, v. Kilolo Kijakazi, [2] Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Shiva V. Hodges, United States Magistrate Judge
This appeal from a denial of social security benefits is before the court for a Report and Recommendation (“Report”) pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying her claims for Disability Insurance Benefits (“DIB”) and Disabled Widow's Benefits (“DWB”). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether he applied the proper legal standards. For the reasons that follow, the undersigned recommends the Commissioner's decision be reversed and remanded for further proceedings as set forth herein.
I. Relevant Background
A. Procedural History
On July 17, 2018, Plaintiff protectively filed an application for DIB in which she alleged her disability began on March 7, 2016. Tr. at 109, 243-46. Her application was denied initially and upon reconsideration. Tr. at 111-14, 116-20. Plaintiff protectively filed an application for DWB on January 14, 2020. Tr. at 262-65. On February 7, 2020, Plaintiff had a hearing before Administrative Law Judge (“ALJ”) James Cumbie. Tr. at 53-93 (Hr'g Tr.). The ALJ issued an unfavorable decision on June 2, 2020, finding Plaintiff was not disabled within the meaning of the Act. Tr. at 7-31. Subsequently, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. Tr. at 1-6. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on November 19, 2020. [ECF No. 1].
B. Plaintiff's Background and Medical History
1. Background
Plaintiff was 55 years old at the time of the hearing. Tr. at 56, 243. She completed two years of college. Tr. at 271. Her past relevant work (“PRW”) was as a grocery store manager. Tr. at 271. She alleges she has been unable to work since March 7, 2016. Tr. at 243.
The record contains additional evidence for the period prior to Plaintiff's alleged onset date. The undersigned declines to summarize this evidence, with the exception of diagnostic and imaging studies, as it does not pertain to the relevant period.
On June 23, 2008, magnetic resonance imaging (“MRI”) of Plaintiff's lumbar spine showed mild degenerative disc disease (“DDD”) at ¶ 2-3 and L4-5; very subtle right and mild left neural foraminal encroachment at the L4-5 level due to minor bulging annulus, left intra-foraminal focal disc protrusion, and facet joint hypertrophy, causing obliteration of the perineural fat, particularly on the left, with no apparent exiting nerve root compression or impingement; very subtle bulging of the annulus fibrosis and retrolisthesis of the superjacent vertebrae at the L2-3 level without apparent nerve root compromise; and multilevel facet arthropathy with advanced changes at the L4-5 and L5-S1 levels. Tr. at 849.
On August 8, 2009, x-rays of Plaintiff's lumbar spine showed spondylosis at ¶ 2-3. Tr. at 836.
Plaintiff underwent nerve conduction studies of her bilateral lower extremities on January 24, 2011. Tr. at 934. They produced normal results showing no electrodiagnostic evidence of bilateral lower extremity radiculopathy, plexopathy, myopathy, or overt peripheral neuropathy. Id.
On May 2, 2012, x-rays of Plaintiff's lumbar spine showed a loss of lordosis with well-maintained disc spaces and no evidence of spondylosis or spondylolisthesis. Tr. at 838.
Gerald Rollins, M.D. (“Dr. Rollins”), completed a physician's statement for Plaintiff's worker's compensation claim on July 25, 2012. Tr. at 781. He noted Plaintiff complained of pain in her lumbar spine following an injury on April 30, 2012. Id. He stated Plaintiff had reached maximum medical improvement on July 11, 2012, had a zero percent impairment to her lumbar spine, and could return to work without restriction. Id.
Plaintiff presented to Victor N. Ambruso, M.D. (“Dr. Ambruso”), for evaluation on April 18, 2016. Tr. at 901-02. She reported having had a kidney stone 10 days prior. Tr. at 902.
Plaintiff presented to the emergency room (“ER”) at Spartanburg Regional Healthcare System on April 22, 2017, for right ankle pain. Tr. at 371-77. She reported having lost her balance and sustained a fall. Tr. at 371. She described pain in the lateral aspect of her right ankle that was accompanied by swelling and worsened by movement and weight-bearing. Id. Nurse practitioner Ellen Stanaway (“NP Stanaway”) noted Plaintiff's blood pressure was elevated at 151/102 mmHg and observed moderate swelling and tenderness to her right lateral malleolus and decreased sensation in her right lower lateral leg from mid-shin to above the malleolus. Tr. at 372. She noted a six-inch area without sensation from the lateral aspect of the right mid-calf extending to just above the right malleolus and acute right foot drop that appeared to be related to the ankle injury. Tr. at 373. X-rays of Plaintiff's right ankle showed asymmetric right lateral malleolar soft tissue swelling without underlying fracture. Id. X-rays of her right tibia and fibula indicated questionable lateral talar process. Id. NP Stanaway prescribed Norco and Motrin and placed Plaintiff in a posterior short-leg splint. Tr. at 374.
On January 2, 2018, Plaintiff's blood pressure was elevated at 150/110 mmHg. Tr. at 905. Dr. Ambruso prescribed Amlodipine 5 mg. Id.
Plaintiff's blood pressure was elevated at 160/93 mmHg on February 2, 2018. Tr. at 905. Dr. Ambruso noted she was smoking half a pack of cigarettes per day. Id.
On March 29, 2018, Dr. Ambruso noted Plaintiff had decreased her cigarette use to less than half a pack per day. Tr. at 905.
Dr. Ambruso prescribed Klonopin 0.5 mg three times a day on May 23, 2018. Tr. at 905.
On August 20, 2018, Plaintiff complained of a one-week history of bilateral leg edema. Tr. at 389. She reported having sustained two bee stings over the prior week and having used four Epi-pens. Id. She endorsed mood changes and difficulty sleeping. Id. Her blood pressure was elevated at 173/108 mmHg, and she weighed 224 pounds. Tr. at 390. Physician assistant Juana Diaz Perez (“PA Perez”) observed Plaintiff to have decreased range of motion (“ROM”) of the right foot with mildly-decreased strength, normal ROM of the left foot with normal strength, minimal pedal edema, and to be tearful during the visit. Tr. at 392. She prescribed Losartan Potassium 50 mg for better blood pressure control and Hydroxyzine HCl 25 mg for anxiety and depression. Tr. at 393. She noted Plaintiff's pedal edema and high blood pressure might be related to recurrent use of an Epi-pen. Id. She recommended Plaintiff continue with regular counseling. Id.
On September 11, 2018, Plaintiff reported migraines, episodes of high blood pressure, improved right leg swelling, situational depression, and chest tightness and jaw and left arm pain when she felt upset. Tr. at 891. She reported participating in hospice grief counseling bi-weekly and endorsed minimal side effects from Losartan. Id. Her blood pressure was elevated at 171/106 mmHg. Tr. at 894. PA Perez observed decreased ROM of the right foot with mild decreased strength and minimal pedal edema. Id. She stated Plaintiff was tearful during the visit. Id. She recommended Losartan be increased to address poorly-controlled hypertension, as well as close monitoring of hypertension with a blood pressure check within one to two weeks. Tr. at 894, 895. She advised Plaintiff to continue with counseling. Tr. at 895. She assessed hypertension, improved atypical chest pain, anxiety associated with depression, and improving pedal edema. Tr. at 894-95.
Plaintiff presented for counseling the same day. Tr. at 1092. Licensed clinical social worker Laura Ellington (“SW Ellington”) noted normal findings on mental status exam (“MSE”), aside from tearful, angry, and expansive affect; depressed, anxious, and agitated mood; and obsessive thought process. Id. She stated Plaintiff had heightened anxiety related to her husband's death nine months earlier and a toxic struggle with her stepdaughter regarding the estate. Id. She indicated Plaintiff's depression/anxiety was moderate-to-severe based on severe situational stressors. Id.
Dr. Ambruso continued Klonopin during Plaintiff's visits on September 16, November 5, December 3, and December 31, 2018 and January 2, February 4, March 4, April 25, May 23, June 2, July 2, August 2, September 26, October 24, November 21, and December 19, 2019. Tr. at 906-09.
On October 8, 2018, Plaintiff reported her blood pressure readings had been between 147/79 and 221/158 mmHg. Tr. at 882. She endorsed good and bad days, chest pain during stressful periods, and bilateral pedal edema associated with extremely elevated blood pressure. Id. She noted she was continuing to participate in grief counseling and was taking two Losartan pills daily. Id. She said she had filed for disability. I d. She said she continued to smoke one to two cigarettes per day, after poor results with Chantix and Wellbutrin. Id. Plaintiff's blood pressure was 171/98 mmHg. Tr. at 884. PA Perez recorded normal findings on physical exam. Tr. at 885. She recommended Plaintiff continue counseling and increase soy in her diet to address post-menopausal symptoms. Tr. at 886-87. She prescribed Amlodipine Besylate and continued Losartan. Tr. at 887.
Plaintiff presented for counseling the same day. Tr. at 1088. SW Ellington recorded normal MSE findings, aside from depressed, anxious, and situational mood and obsessive thought process. Id. She noted Plaintiff's obsessive thoughts concerned her husband's will and her stepdaughter's manipulative behavior. Id. She encouraged Plaintiff to pursue yoga as a coping mechanism. Id.
On October 18, 2018, state agency psychological consultant Rebekah Jackson, Ph.D. (“Dr. Jackson”), reviewed the evidence and concluded depression and anxiety were not established as medically-determinable impairments prior to Plaintiff's date last insured (“DLI”) of December 31, 2017. Tr. at 97-98. State agency medical consultant William Crosby, M.D. (“Dr. Crosby”), reviewed the record and concluded there was insufficient evidence to support a severe impairment prior to Plaintiff's DLI. Tr. at 97.
On November 5, 2018, Dr. Ambruso noted Plaintiff's blood pressure was 160/100 mmHg. Tr. at 606.
Plaintiff followed up with SW Ellington for counseling on November 13, 2018. Tr. at 1086. SW Ellington noted generally normal findings on MSE, aside from tearful affect, depressed mood, and obsessive thought process. Id. Plaintiff reported constant crying and not having left her house in two weeks. Id. She explained her family had come to her home and taken her to St. Louis after she spent two weeks in isolation, constantly crying and unable to function. Id.
Plaintiff complained of leg swelling, nausea, and chest pain associated with anxiety and exertion on November 19, 2018. Tr. at 425. Her blood pressure was elevated at 169/109 mmHg. Tr. at 428. PA Perez noted Plaintiff was anxious. Id. She prescribed a trial of Hydrochlorothiazide and discontinued Amlodipine Besylate. Id. She ordered a stress echocardiogram (“echo”) due to atypical chest pain. Tr. at 429.
During a counseling session on the same day, SW Ellington noted normal findings on MSE, aside from tearful affect and depressed and anxious mood with diminished agitation and acute grief reaction. Tr. at 1084. Plaintiff acknowledged thoughts of death, but had no active suicidal ideation or plan. Id.
On December 3, 2018, Plaintiff reported blood pressure readings between 155/89 and 220/120 mmHg, situational stressors, and chest pain that radiated to her arm. Tr. at 419. PA Perez observed Plaintiff to be anxious, but indicated no other abnormal exam findings. Tr. at 422. She prescribed Amlodipine 5 mg for better blood pressure control and discussed diet and exercise modifications. Tr. at 423. She stated she would need to cancel the echo because Plaintiff could not afford it and noted that she should visit a cardiologist upon being approved for financial assistance. Id. She continued Hydroxyzine. Id.
The same day, SW Ellington recorded normal findings on MSE, aside from congruent and tearful affect, depressed and agitated mood, and obsessive thought process. Tr. at 1082. She noted Plaintiff's obsessive thoughts and behaviors were beginning to diminish, although financial security continued to be her overriding concern. Id.
On January 7, 2019, Plaintiff reported an 800-pound gate had fallen on her four days earlier, causing a brief loss of consciousness, black eye, head lesion, and right foot injury. Tr. at 413. She denied having visited the ER because she could not afford treatment. Id. She reported blood pressure between 150/84 and 220/130 mmHg, but indicated she had just started Amlodipine that day. Id. She endorsed continued situational stressors, chest pain, and slight improvement of leg swelling. Id. PA Perez noted full ROM of the bilateral ankles and feet with no erythema or edema on musculoskeletal exam. Tr. at 416. She observed a laceration to Plaintiff's right eyebrow with mild discharge and erythema, a mild right eye hematoma, and a right foot abrasion with no surrounding erythema or edema. Id. PA Perez prescribed Keflex for signs of infection to the laceration above Plaintiff's eyebrow. Tr. at 417. She indicated Plaintiff had poor compliance with medication for hypertension and recommended she continue all medications and maintain a blood pressure log. Id.
Plaintiff followed up with SW Ellington for counseling the same day. Tr. at 1080. SW Ellington recorded normal findings on MSE, aside from tearful affect; depressed, anxious, and agitated mood, particularly toward the probate process and her deceased husband's daughter; and confused and obsessive thought process. Id. She noted Plaintiff presented with “intense emotional distress” and was “tearful, despondent and anxious” due to financial and emotional stress of settling her husband's estate. Id.
Plaintiff reported feeling better on January 14, 2019. Tr. at 406. She was excited for a trip to visit family in St. Louis. Id. She indicated she was taking her blood pressure medication as directed and her blood pressure had ranged from 154/78 to 170/112 mmHg. Id. She endorsed improved mood with medication. Id. She complained of several days' history of right foot bruising and swelling. Id. PA Perez recorded full ROM of Plaintiff's ankles and feet with no erythema or edema on musculoskeletal exam, but noted a right foot abrasion with mild edema on skin exam. Tr. at 409. She described Plaintiff as alert and cooperative with normal mood, affect, attention span, and concentration on psychiatric exam. Tr. at 410. She recommended Plaintiff use ice on swollen areas, increased Amlodipine to 10 mg daily for better blood pressure control, and prescribed Wellbutrin 150 mg for anxiety. Tr. at 410- 11.
Plaintiff also followed up with SW Ellington for counseling on January 14, 2019. Tr. at 1078. SW Ellington noted normal findings on MSE, aside from tearful affect; depressed, anxious, and situational mood; and obsessive thought process with diminishing obsessive focus on her stepdaughter. Id. Plaintiff reported feeling better and continuing to recover from injuries sustained in a farming accident. Id.
Plaintiff attended a counseling session on January 21, 2019. Tr. at 1111. SW Ellington recorded normal findings on exam, aside from tearful affect; depressed, anxious, and agitated mood; and obsessive thought process. Id. She noted Plaintiff's obsessive thoughts pertained to her husband's estate. Id.
State agency psychological consultant Douglas Robbins, Ph.D. (“Dr. Robbins”), reviewed the record and affirmed Dr. Jackson's assessment on February 5, 2019. Tr. at 106.
On February 6, 2019, state agency medical consultant James M. Lewis, M.D. (“Dr. Lewis”), reviewed the record and affirmed Dr. Crosby's assessment. Tr. at 105.
On July 15, 2019, Plaintiff reported she had stayed with her mother in St. Louis for six months and had returned six weeks prior. Tr. at 873. She endorsed severe back pain and indicated she had recently sustained an injury. Id. She indicated she had run out of Wellbutrin and Hydroxyzine three months prior and noted that Wellbutrin had helped her to quit smoking, but had worsened her depression. Id. She indicated she had experienced chest pain 10 minutes prior to the exam, along with bilateral pedal edema and dyspnea. Id. She reported blood pressure readings between 154/78 and 220/130 mmHg. Id. PA Perez observed Plaintiff to appear tearful. Tr. at 876. She increased Losartan to 100 mg to address hypertension, ordered an MRI of Plaintiff's lumbar spine, and refilled Hydroxyzine, Hydrochlorothiazide, and Amlodipine. Tr. at 877.
Plaintiff followed up with SW Ellington for counseling on July 17, 2019. Tr. at 1109. She indicated she had recently returned from a six-month visit with family. Id. She stated she felt calm and “important” during the time she was with her family, but felt anger, anxiety, depression, insomnia, and frustration since returning. Id. She indicated she needed to resume therapy to work on coping skills, manage anger and anxiety, and resolve insomnia. Id. SW Ellington recorded mostly normal findings on MSE, aside from perseveration of thought and depressed and anxious mood. Id.
On July 29, 2019, Plaintiff reported taking Amlodipine and Hydroxyzine daily and having restarted Losartan three to four days prior. Tr. at 868. She complained of frequent dyspnea, profuse sweating after activity, cold feet at night, hot flashes, and back pain that limited activity. Id. She indicated she was unable to afford an MRI. Id. She indicated she had tried to reduce her salt intake. Id. Her blood pressure was 166/100 mmHg during the visit. Id.
Plaintiff followed up for counseling the same day. Tr. at 1107. She complained of heightened anxiety related to continued delays in settling her husband's estate. Id. SW Ellington recorded normal findings on MSE, aside from depressed and anxious mood. Id.
On August 19, 2019, Plaintiff reported her blood pressure readings had been between 174/84 and 220/164 mmHg. Tr. at 863. She indicated increased stress caused elevated blood pressure and chest pain. Id. She denied having started Coreg, but indicated she was taking Losartan, Amlodipine, and Hydrochlorothiazide daily. Id. She denied having obtained an MRI or a renal ultrasound. Id. She said she continued regular therapy sessions. Id. PA Perez recorded normal findings on physical exam. Tr. at 865. She assessed uncontrolled hypertension with poor medication compliance, anxiety associated with depression, and atypical chest pain. Tr. at 866. She prescribed Carvedilol, advised Plaintiff to continue counseling, and continued Losartan, Amlodipine, Hydroxyzine, and Hydrochlorothiazide. Id.
Plaintiff also presented for counseling on August 19, 2019. Tr. at 1105. She endorsed severe anxiety, depression, and insomnia, but noted she was “doing ok” after a visit with family. Id. She reported continued situational stressors related to her stepdaughter's handling of her deceased husband's estate. Id. SW Ellington recorded normal findings on MSE, aside from some perseveration of thought and depressed and anxious mood. Tr. at 1105-06.
On September 6, 2019, Plaintiff reported her blood pressure readings had been between 150/68 and 190/108 mmHg. Tr. at 858. She endorsed feeling stressed, but indicated Hydroxyzine helped somewhat. Id. She complained of fatigue as a side effect of Coreg and indicated she felt she was retaining fluid. Id. She said she continued to experience chest pain when she felt stressed. Id. She reported compliance with Losartan, Amlodipine, and Hydrochlorothiazide, continued participation in counseling, and having scheduled a kidney ultrasound and an MRI for the following week. Id. She endorsed anxiety and depression, but denied suicidal ideation. Id. PA Perez recorded normal findings on physical exam. Tr. at 860-61. She prescribed Fluoxetine for anxiety associated with depression and continued Plaintiff's other medications. Tr. at 862.
Plaintiff also presented for counseling on September 6, 2019. Tr. at 1103. SW Ellington recorded normal findings on MSE, aside from perseveration of thought and depressed/anxious mood. Tr. at 1103-04.
On September 27, 2019, Plaintiff indicated she had not undergone a renal ultrasound because she could not afford it and had not been approved for a charity program. Tr. at 853. She denied having had an MRI. Id. She indicated her blood pressure had improved to 150/90 mmHg, but she continued to experience chest pain associated with stress. Id. She indicated she had recently started Fluoxetine. Id. She denied side effects and changes in mood. Id. Plaintiff's blood pressure was 164/100 mmHg during the visit. Tr. at 855. PA Perez observed Plaintiff to be tearful. Id. She assessed poorly-controlled hypertension, recurrent and moderate major depression, and back pain. 856. She advised Plaintiff to take Carvedilol as prescribed and to pursue a renal ultrasound through Advent Health. Id. She continued Plaintiff's medications. Id.
Plaintiff followed up with SW Ellington for counseling the same day. Tr. at 1101. SW Ellington recorded normal findings on MSE, aside from depressed and anxious mood. Id. She noted Plaintiff was tearful throughout the session. Id. Plaintiff reported the severe situational stressors pertaining to her late husband's estate had not been resolved. Id. She endorsed thoughts of death without suicidal intent. Id. She indicated she had recently rescued a donkey who had been mistreated, and SW Ellington encouraged her to become more involved in animal rescue projects. Id.
On November 21, 2019, an MRI of Plaintiff's lumbar spine showed multilevel acquired spinal stenosis worse at the L4-5 level on the right, as evidenced by abutment and probable compression of the exiting L4 nerve root. Tr. at 851-52. It further showed mild multilevel DDD and multilevel facet arthropathy with advanced changes at ¶ 4-5. Id.
On December 19, 2019, Dr. Ambruso noted Plaintiff had reported occasional anxiety due to pain and frustration. Tr. at 909.
C. The Administrative Proceedings
1. The Administrative Hearing
a. Plaintiff's Testimony
At the hearing, Plaintiff testified her neck and upper and lower back problems kept her from being able to work. Tr. at 70. She said she experienced shooting pain that prevented her from getting out of bed two days a week, on average. Tr. at 70, 71. She stated her lower back pain extended into her legs, affecting the right leg more than the left and causing numbness. Tr. at 70-71. She said she performed housework on days when she could get out of bed. Tr. at 71. She indicated she was able to load the dishwasher, make the bed, and clean the floor with a Swiffer. Tr. at 72. She said she was unable to clean the whole floor without stopping to sit down. Id. She stated she had experienced infrequent problems with stumbling and falling. Tr. at 73. She indicated she treated her pain with Goody's powder because she refused treatment with narcotics. Id. She said she had been unable return to a pain management physician or visit an orthopedist for her pain back because she had lacked insurance for several years. Tr. at 74. She testified she received medical and psychiatric treatment at Blue Ridge because of its sliding-scale payment structure. Id.
Plaintiff estimated she could sit for 30 minutes to an hour with pain after about 10 minutes. Tr. at 74-75. She said she could likely stand for 30 minutes. Tr. at 75. She explained she used a cart when she visited the store, even for just one item, because it helped to take the weight off her. Id.
Plaintiff testified she was dealing with grief over the loss of her husband on November 22, 2017. Tr. at 76. She stated her husband suffered from Lewy body disease, and she was his main caregiver. Id. She noted her husband had requested to remain in their home, and she was able to honor his request with the assistance of a hospice service. Id. She said her husband's son also died a month before his death. Tr. at 77.
Plaintiff testified she was taking medication for anxiety and depression, but indicated it was not very effective. Tr. at 78. She said she tried not to interact with others. Id. She indicated her ability to leave the house had improved such that she was doing so a couple times a week. Id.
Plaintiff testified she would be unable to perform work like she performed at Aldi because she was unable to be on her feet for long periods, could not sit in the office long enough to do payroll, and was not mentally strong enough to do it. Tr. at 80. She said she did not have the demeanor to deal with customers. Id. She indicated the job required she be quick on her feet, and she no longer had the ability to do so. Id. She testified she was required to lift over 50 pounds on the job. Tr. at 82. She stated she had been injured in April 2012 when she bent over to pick up a box for a customer. Tr. at 82-83. She said she had served as store manager at Aldi. Tr. at 83. She indicated she hired and fired employees, submitted store reports, and conducted employee performance evaluations. Tr. at 83-84. She said she left the job because of her husband's illness. Tr. at 84.
Plaintiff described an incident in which an 800-pound gate fell on her. Tr. at 80. She explained that friends from church were helping her to put out large round bales of hay when a bale fell on the gate and the gate fell off and landed on her. Tr. at 80-81. She denied having visited the ER following the incident because she had no insurance. Tr. at 81. However, she said she visited Blue Ridge for treatment following the injury. Id.
Plaintiff admitted she had been working an average of eight to 10 hours a week as a substitute teacher for Spartanburg School District Two. Tr. at 81-82. She denied being able to perform the job for 30 or 40 hours a week because it was exhausting and she was in pain after doing it. Tr. at 82.
Plaintiff said she continued to have problems with her blood pressure. Tr. at 84. She stated she experienced pain in her chest due to high blood pressure. Tr. at 84-85. She said she could no longer walk one-fourth of her driveway without developing a headache due to an increase in her blood pressure. Tr. at 85. She testified she had right foot drop, after an injury to her right ankle in 2017 when her husband fell on her. Tr. at 86-87.
b. Vocational Expert Testimony
Vocational Expert (“VE”) Mark Leaptrot reviewed the record and testified at the hearing. Tr. at 87-92. The VE categorized Plaintiff's PRW as a retail manager, Dictionary of Occupational Titles (“DOT”) No. 185.167-046, as having a specific vocational preparation (“SVP”) of 7 and requiring light exertion as described in the DOT and heavy exertion as she performed it. Tr. at 88. He stated the job produced some transferable skills, but adjustment would be required to perform other work. Tr. at 88-89. The ALJ described a hypothetical individual of Plaintiff's vocational profile who could perform the full range of light work requiring no climbing of ladders, ropes, or scaffolds and no more than frequent interaction with the public. Tr. at 89. The VE testified the hypothetical individual would be able to perform Plaintiff's PRW. Id. The ALJ asked whether there were any other jobs in the economy the hypothetical person could perform. Id. The VE identified light jobs with an SVP of 2 as a routing clerk, DOT No. 222.687-022, an office helper, DOT No. 239.567-010, and a shipping and receiving weigher, DOT No. 222.387-074, with 41, 300, 85, 000, and 75, 000 positions in the national economy, respectively. Tr. at 89-90.
For a second hypothetical question, the ALJ asked the VE to consider an individual of Plaintiff's vocational profile who was limited to the full range of sedentary work, except she would be unable to stand for two hours cumulatively due to back pain; would be limited to only occasional interaction with the public, coworkers, and supervisors due to depression; and would be unable to maintain concentration, persistence, and pace for two-hour increments due to depression. Tr. at 90. The ALJ asked if the individual would be able to perform Plaintiff's PRW or other jobs in the economy. Id. The VE testified the individual would be unable to perform Plaintiff's PRW or any other work, as all jobs would expect an individual to demonstrate good attention and concentration over four two-hour blocks per day. Id.
The ALJ asked the VE if his testimony had been consistent with the information in the DOT and its companion publications. Id. The VE stated his testimony did not conflict with the DOT, but explained that some of his testimony was not covered by the DOT and was based on his knowledge, education, and field experience. Tr. at 91.
Plaintiff's attorney asked the VE to consider the individual would be limited to light work with no climbing of ladders, ropes, or scaffolds and only occasional interaction with the public, coworkers, and supervisors. Id. He asked if the individual would be able to perform Plaintiff's PRW. Id. The VE testified the individual would not because the job of a retail manager would likely require interaction with the public for more than a third of the workday. Id.
Plaintiff's attorney asked the VE if her PRW produced transferable skills to other jobs at the light exertional level. Id. The VE stated there would be no transferable skills without vocational adjustment. Id.
Plaintiff's attorney asked the VE to consider an individual of Plaintiff's vocational profile who was limited to sedentary work with occasional interaction with the public, coworkers, and supervisors. Tr. at 92. He asked if the individual would be able to perform Plaintiff's PRW or would have skills transferable to work at the sedentary exertional level. Id. The VE responded “[n]o.” Id.
2. The ALJ's Findings
In his decision, the ALJ made the following findings of fact and conclusions of law:
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2017.
2. The claimant is the unmarried widow of the deceased insured worker and has attained the age of 50. The claimant met the non-disability requirements for disabled widow's benefits set forth in section 202(e) of the Social Security Act.
3. The prescribed period ends on January 31, 2024.
4. The claimant has not engaged in substantial gainful activity since March 7, 2016, the alleged onset date (20 CFR 404.1571 et seq.).
5. The claimant has the following severe impairments: lumbar spinal stenosis, obesity and depression (20 CFR 404.1520(c)).
6. 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).
7. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except she can never climb ladders, ropes and scaffolds. She is limited to frequent interaction with the public.
8. The claimant is capable of performing past relevant work as a retail manager (DOT #185.167-046) light (heavy as performed) and skilled with an SVP of 7. This work does not require performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565).
9. The claimant has not been under a disability, as defined in the Social Security Act, from March 7, 2016, through the date of this decision (20 CFR 404.1520(f)).Tr. at 13-25.
II. Discussion
Plaintiff alleges the Commissioner erred for the following reasons:
1) the ALJ did not assess the credibility of the lay witness statements of record;
2) the ALJ failed to include restrictions imposed by right foot drop in the RFC assessment; and
3) the Appeals Council erred in declining to remand the case for consideration of new and material evidence.
The Commissioner counters that substantial evidence supports the ALJ's findings and that the ALJ committed no legal error in her decision.
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 “need for efficiency” in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity; (2) whether she 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 her from doing substantial gainful employment. 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, she 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 her impairments match several specific criteria or are “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 she 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 her 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 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 she 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 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 his 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).
B. Analysis
1. Lay Witness Statements
On December 3, 2019, Marie Graeper, a chaplain for Spartanburg Regional Hospice noted she had provided bereavement services to Plaintiff from when her husband initially received hospice services until October 2018. Tr. at 335. She wrote:
After [her husband's] death, [Plaintiff] was obviously grieving. His side of the family complicated the grief process and made it more difficult to resolve it. They were creating a lot of stress for her mainly due to the financial situation. Through my work, I normally help people by talking with them and guiding them to resources that they can fall back on. However, this was complicated by the stress she was experiencing. She cried with me just about every session we had together. I saw her about once per week. She mentioned that there were days when she was unable to get out of bed due to stress and depression that she was experiencing. The last time I saw her was last October 2018 when I went out on back surgery and the bereavement time had expired. At that time, she was continuing to experience grief and depression which had not resolved at that time.Id.
On January 7, 2020, Robert R. R. Ortega provided a statement indicating he had met Plaintiff over a year prior and had served as her real estate agent. Tr. at 336. He stated he had visited Plaintiff weekly over the prior eight months to check on progress and follow up with contractors. Id. He wrote:
While visiting, [o]n several occasions I happened to notice Mrs. F[.] having trouble walking and being in constant pain as she
explained due to her back. I also have noted how grave her pain was since in several instances, she requested for me not to come to the property because she could not make it out of bed and consequently no work could be carried out due to her inability to stand up. Throughout all this time I realized that Mrs. F[.] is under a lot of stress physically and emotionally.Id.
Wilma Howell, Plaintiff's friend for over a decade through the horse industry, provided a statement on January 19, 2020. Tr. at 338. She wrote:
Jerri has always been a vibrant person and always eager to help others along the way.
She has been riddled with back pain for a while now and often unable to function. She has days that [are] difficult often rolls out of bed on her hands and knees to get up.
The most disheartening observance of mine is her emotional state. She has become depressed to the point that she withdraws to herself and will often not even answer her phone calls/messages. It is emotionally draining I realize when anyone loses a spouse but she has been badgered, spied upon, harassed relentlessly by a stepdaughter trying to destroy her financially/emotionally. This has added to her unstable blood pressure which spike very high at times. I understand the doctors have been trying to stabilize.
Jerri does try to take care of her horses but cannot carry a bucket of feed, therefore, she takes a scoop which weighs about 1 ½ pounds to each location. As I understand she has friends that help with the heavier farm work such as mowing, repairing gates and driving tractors.Id.
Also on January 19, 2020, David Deland, a member of Plaintiff's church who had known her for at least two years, provided the following statement:
[Mrs. F.] usually attends [church] on Sunday mornings when she is feeling well enough to attend. She misses church from time to time. I know from talking to her and others that she is having some physical problems with her back. However, I have more firsthand knowledge of her mental state than her physical state. More recently in the last 6 months or so, I have noticed that when she does come to church, she avoids engaging with people by arriving late and leaving early to avoid them. I have observed that her husband and son's death ha[ve] taken a toll on her. Her attempts to manage her farm have also created additional stress for her. I have helped counsel her through the depression and anxiety she is dealing with. She has cried multiple times during discussions with me regarding her situation both on the phone and in person.Tr. at 350.
Plaintiff argues the ALJ did not consider or weigh any of the lay witness statements in the record. [ECF No. 14 at 14-16]. She concedes that an ALJ is not required to consider every piece or evidence, but maintains the ALJ should have considered the lay witness statements, given their relevance. Id. at 15. Although the new regulations do not require ALJs to evaluate statements from nonmedical sources using the same criteria as for medical sources, she contends they do not excuse the failure to address lay witness statements. [ECF No. 16 at 4-6].
The Commissioner argues 20 C.F.R. § 404.1520c(d) does not require the ALJ to assess the credibility of witness statements. [ECF No. 15 at 14]. He maintains that, although SSR 16-3p and 20 C.F.R. § 404.1545(a)(3) require ALJs to consider all evidence to include statements from family and friends, there is a distinction between what an ALJ must consider and what he must specifically explain in his decision. Id. He contends the witness statements were undermined by other evidence, including relatively benign findings on physical and mental exams, the absence of psychiatric hospitalizations, Plaintiff's ability to live alone and function independently on a daily basis, and her ability to work part-time as a substitute teacher. Id. at 14-15.
“The information that your medical sources or nonmedical sources provide about your pain or other symptoms (e.g., what may precipitate or aggravate your symptoms, what medications, treatments or other methods you use to alleviate them, and how the symptoms may affect your pattern of daily living) is also an important indicator of the intensity and persistence of your symptoms.” 20 C.F.R. 404.1529(c)(3). “Because symptoms, such as pain, are subjective and difficult to quantify, any symptom-related functional limitations and restrictions that your medical sources or nonmedical sources report, which can reasonably be accepted as consistent with the objective medical evidence and other evidence, will be taken into account . . . in reaching a conclusion as to whether you are disabled.” Id. We will consider all of the evidence presented, including . . . observations by our employees and other persons.” Id.; see also SSR 16-3p, 2017 WL 5180304, at *4 (“In 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.”). The ALJ is to “consider any personal observations of [non-medical sources] in terms of how consistent those observations are with the individual's statements about his or her symptoms as well as with all of the evidence in the file.” SSR 16-3p, 2017 WL 5180304, at *7.
For cases filed prior to March 27, 2017, ALJs are required to weigh every medical opinion based on: (1) examining relationship; (2) treating relationship; (3) supportability; (4) consistency; (5) specialization; and (6) any other relevant factors, provided they do not accord controlling weight to a treating physicians' opinion. See 20 C.F.R. § 404.1527(c). Furthermore, ALJs are to consider opinions from nonmedical sources using these same factors and “generally should explain the weight given to opinions from these sources or otherwise ensure that the discussion of the evidence in the determination or decision allows a claimant or subsequent reviewer to follow the adjudicator's reasoning, when such opinions may have an effect on the outcome of the case.” See 20 C.F.R. § 404.1527(f)(1).
The rules in 20 C.F.R. § 404.1520c apply to the evaluation of medical opinions and prior administrative determinations in cases that, like Plaintiff's, were filed on or after March 27, 2017. The new rules differ from those in 20 C.F.R. § 404.1527 such that the ALJ is not required to articulate how he considered evidence from nonmedical sources using the requirements in paragraphs (a) through (c) of the regulation, which pertain to the supportability, consistency, relationship between the medical provider and the claimant, specialization of the medical provider offering the opinion, and other factors that might support or contradict the opinion. Compare 20 C.F.R. § 404.1527, with 20 C.F.R. § 404.1520c.
The ALJ stated his decision represented “careful consideration of all the evidence.” Tr. at 11. He specifically noted he had “fully considered the medical opinions and prior administrative medical findings.” Tr. at 24. However, the ALJ's decision contains no reference to or assertion that he considered the lay witness statements. See generally Tr. at 13-25.
A few courts have addressed how ALJs are to consider witness statements, given regulatory changes between 20 C.F.R. § 404.1527 and § 404.1520c. In several recent cases, the District of Oregon has confronted ALJs' failures to provide adequate reasons for rejecting statements from lay witnesses in cases where 20 C.F.R. § 404.1520c applies, and has concluded the regulation does not excuse the ALJs of their requirement to address the evidence. See Shirley C. v. Commissioner, Social Security Administration, C/A No. 1:20-cv-1212-MK, 2021 WL 3008265, at *7 (D. Or. July 15, 2021) (stating “the ALJ failed to supply a germane reason to reject lay witness statements” and his “failure to explicitly reject the remaining portions of lay witness statements was error”); Tanya L. v. Comm'r of Soc. Sec., C/A No. 3:20-cv-78-BR, 2021 WL 981492, at *7 (D. Or. Mar. 16, 2021) (noting that pursuant to 20 C.F.R. § 404.1520c(d), the ALJ “does not have to use the same criteria as required for medical sources, ” but that “the amended regulations do not eliminate the need for the ALJ to articulate his assessment of the lay-witness statements”); Joseph M. R. v. Commissioner of Social Security, C/A No. 3:18-1779-BR, 2019 WL 4279027, at *12 (D. Or. Sept. 10, 2019) (stating although “the Commissioner is ‘not required to articulate how we consider evidence from nonmedical sources' using the same criteria for medical sources, it does not eliminate the need for the ALJ to articulate his consideration of lay-witness statements and his reasons for discounting those statements”).
It does not appear that any district court in the Fourth Circuit or any appellate court has considered the issue.
However, most courts that have addressed the issue have not recognized as stringent explanation requirements as the District of Oregon. See Arbuckle v. Commissioner of Social Security, C/A No. 3:20-cv-150-RP, 2021 WL 2879968, at *3 (N.D. Miss. July 8, 2021) (rejecting the plaintiff's claim that the ALJ's failure to discuss his mother's statement was reversible error because “[t]he subject statement is exhibited to the ALJ's decision, and the fact it is it not discussed in the decision itself does not mean that the ALJ failed to consider it, nor does the ALJ's failure to discuss it render the decision unsupported by substantial evidence.”); Dubord v. Commissioner of Social Security, C/A No. 2:20-cv-634-KJM-KJN, 2021 WL 26611879, at *11 (E.D. Cal. June 29, 2021) (finding no error in the ALJ's consideration of the plaintiff's sister's statement where the ALJ noted the statement in his step two findings and the sister's reports were similar to those of the plaintiff, which were properly rejected); Keener v. Saul, C/A No. CIV-20-649-SM, 2021 WL 2460614, at *4 (W.D. Ok. June 16, 2021) (finding no error in the ALJ's finding that third party function reports were “not consistent with the totality of the evidence, ” where the ALJ thoroughly summarized the reports); Michael K. v. Saul, C/A No. 20-C-2944, 2021 WL 1546426, at *7 (N.D. Ill. Apr. 20, 2021) (finding no error in the ALJ's “mentioning . . . only in passing” the plaintiff's counselor's opinion); Caleb H. v. Saul, C/A No. 4:20-5006-EFS, 2020 WL 7680556, at *8 (E.D. Wa. Nov. 18, 2020) (finding harmless error in ALJ's failure to articulate reasons for finding wife's report “inherently neither valuable nor persuasive, ” based on language in 20 C.F.R. § 404.1520c(d), where the wife's report echoed that of the plaintiff and the ALJ gave clear and convincing reasons for discounting the plaintiff's subjective complaints). Nevertheless, the undersigned notes that, with the exception of Arbuckle, the courts in the aforementioned cases were addressing ALJs' treatment of witness statements where the ALJs specifically acknowledged the presence of the statements.
The Commissioner argues specific consideration of lay witness statements is no longer required pursuant to 20 C.F.R. § 404.1520c(d), but here, the question is not whether the ALJ provided sufficiently-specific reasons for rejecting the lay witness statements. Rather, the question is whether he considered them at all.
The regulatory changes do not absolve ALJs of the requirement to consider lay witness statements. The plain language of 20 C.F.R. § 404.1520c(d) supports such a finding. It does not provide “[w]e are not required to articulate how we considered evidence from nonmedical sources.” See 20 C.F.R. § 404.1520c(d). Instead, it provides that ALJs are not required to provide that articulation “using the requirements in paragraphs (a)-(c) of this section.” If ALJs were no longer required to provide any articulation as to how they considered lay witness statements, the additional language would be superfluous. In addition, 20 C.F.R. § 404.1529(c) and SSR 16-3p have not been amended, and both suggest that lay witness statements are among the relevant evidence.
Here, the record contains statements from four witnesses. Their statements provide additional observations as to Plaintiff's tearful presentation, her difficulty walking, her avoidance of others, modifications to her activities, and her statements as to the limiting effect of her symptoms. See Tr. at 335, 366, 338, 350. The undersigned is not persuaded that the boilerplate language indicating he had considered “all evidence” is sufficient to demonstrate the ALJ considered the witness statements without any more specific reference to the statements. Because the ALJ must assess a claimant's RFC “based on all the relevant evidence in [her] case record, ” his failure to address the lay witness statements renders his decision unsupported by substantial evidence. See 20 C.F.R. § 404.1545(a)(1).
2. Right Foot Drop
Plaintiff argues the ALJ failed to assess the severity of her right foot drop and did not account for it or provide reasons for declining to account for it in the RFC assessment. [ECF No. 14 at 13-14]. She maintains the record documents a history of right foot drop, includes observations of decreased ROM of the right foot with mildly-decreased strength, and reflects a diagnosis of right foot pain. [ECF No. 16 at 2]. She contends the court should not accept the Commissioner's explanation to supplement the ALJ's failure to address the impairment. Id. at 1-3.
The Commissioner argues Plaintiff was diagnosed with right foot drop related to an acute injury she sustained in April 2017. [ECF No. 15 at 13]. He maintains the one-time diagnosis did not meet the 12-month duration requirement to be considered as supporting her disability claim. Id. He contends the ALJ considered Plaintiff's right-foot-drop diagnosis from an ankle sprain and her testimony as to the impairment. Id. He further claims the state agency consultants concluded Plaintiff's right foot drop was acute and related to the ankle injury such that it did not amount to a medically-determinable impairment. Id.
If a claimant is not doing substantial work activity, the ALJ must determine whether she has a medically-determinable physical or mental impairment. 20 C.F.R. § 404.1521. A medically-determinable impairment must be established by objective medical evidence of anatomical, physiological, or psychological abnormalities shown by medically acceptable clinical and laboratory diagnostic techniques from an acceptable medical source. Id. After determining a claimant has a medically-determinable impairment, the ALJ should consider the medical severity of a claimant's impairments at step two of the evaluation process. Id.; 20 C.F.R. § 404.1520(a)(4)(ii). If a claimant has no severe impairment or combination of impairments that meet the “duration requirement, ” the adjudicator will find she is not disabled. Id. The duration requirement provides “[u]nless your impairment is expected to result in death, it must have lasted or must be expected to last for a continuous period of at least 12 months.” 20 C.F.R. § 404.1509. If the claimant has at least one severe impairment or combination of impairments, the ALJ proceeds to subsequent steps in the evaluation process. See Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008) (“[A]ny error here became harmless when the ALJ reached the proper conclusion that [claimant] could not be denied benefits conclusively at step two and proceeded to the next step of the evaluation sequence.”].
A claimant's RFC “is the most [she] can still do despite [her] limitations. 20 C.F.R. § 404.1545(a)(1). The ALJ must assess a claimant's RFC “based on all the relevant evidence in [her] case record.” Id. The ALJ should “consider all of the claimant's ‘physical and mental impairments, severe and otherwise, and determine, on a function-by-function basis, how they affect [the claimant's] ability to work.'” Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019) (quoting Monroe v. Colvin, 826 F.3d 176, 188 (4th Cir. 2016)); see also 20 C.F.R. § 404.1545(a)(2) (providing the adjudicator should consider all the medically-determinable impairments of which he is aware, including those that are not “severe”). “A proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion. Id. In providing a logical explanation, the ALJ must consider all the relevant evidence and account for all the claimant's medically-determinable impairments. See 20 C.F.R. § 416.945(a). “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.” Radford v. Colvin, 734 F.3d 288 (4th Cir. 2013). Thus, the ALJ must include a narrative discussion that cites “specific medical facts (e.g., laboratory findings), and non-medical evidence (e.g., daily activities, observations)” and explains how all the relevant evidence supports each conclusion. SSR 96-8p, 1996 WL 374184, at *7.
The ALJ found Plaintiff's severe impairments included lumbar spinal stenosis, obesity, and depression. Tr. at 13. He acknowledged Plaintiff's presentation to the ER in April 2017 with right ankle pain and a diagnosis of right foot drop. Id. He noted Plaintiff presented to Polk Health Center in August 2018 with complaints of swelling in her feet and legs and findings of decreased ROM in her right foot with mildly decreased strength and minimal edema in her extremities. Id. He indicated Plaintiff had normal ROM in her ankles and feet with no edema upon presentation to Polk Health Center in January 2019. Id. He cited a subsequent injury to Plaintiff's right foot, when an 800-pound gate fell on her in January 2019. Tr. at 14.
In discussing the RFC assessment, the ALJ acknowledged Plaintiff's statement that she had “right foot drop.” Tr. at 22. He addressed Plaintiff's back impairment, citing “no evidence of atrophy in the claimant's extremities or a significant loss in motor strength” and “no indication that the claimant's back impairment significantly disturbed her ambulation.” Tr. at 23. While this same evidence could be interpreted to indicate the record failed to support any functional limitations from right foot drop, the ALJ did not specifically address whether the impairment caused any functional limitations.
The undersigned is inclined to accept the Commissioner's argument that right foot drop was an acute symptom related to the April 2017 injury that would not meet the durational requirement. Upon assessing the right foot drop in the ER, NP Stanaway specified that it appeared to be related to the ankle injury. Tr. at 373. When Dr. Crosby reviewed the record on October 18, 2018, he assessed no severe impairment, as the foot drop “APPEARED TO BE ACUTE AND RELATED TO ANKLE INJURY.” Tr. at 97. Although right foot drop is documented in Plaintiff's medical history, no subsequent medical records reflect observation of signs or symptoms of the impairment. Plaintiff also did not report right foot drop or allege to her physicians that it imposed any functional limitations. Although right foot drop could reasonably impose functional limitations if it persisted over time, there is no evidence that it did.
The next record that reflects any observation as to Plaintiff's right lower extremity is from an August 2018 visit, 16 months after her right ankle injury. Tr. at 389. During that visit, Plaintiff complained of a one-week history of bilateral leg swelling. Id. Although PA Diaz observed Plaintiff to have decreased ROM of the right foot with mildly-decreased strength and minimal pedal edema, Tr. at 392, she felt the symptoms were likely related to her use of four Eprpens over the prior week. Tr. at 393. NP Perez observed similar symptoms in September 2018, Tr. at 894, but recorded no abnormal findings as to Plaintiff's right foot or ankle during any exams thereafter. See Tr. at 409, 416, 422, 428, 855, 860-61, 865, 876, 885.
Although the ALJ did not specifically categorize right foot drop as non-severe or not meeting the durational requirement, he cited evidence contrary to any allegation of functional impairment related to the condition, noting subsequent evidence of normal gait, no edema, normal ROM of the ankles and feet, and no significant reduction in motor strength. Tr. at 13, 23.
In the absence of any evidence that Plaintiff's right foot drop met the durational requirement or imposed functional limitations over the relevant period, the undersigned recommends the court find harmless the ALJ's failure to specifically address right foot drop in characterizing the severity of Plaintiff's impairments and RFC. See Mickles v. Shalala, 29 F.3d 918, 921 (noting error was harmless “[b]ecause the ALJ conducted the proper analysis in a comprehensive fashion and cited substantial evidence to support his finding, and because there is no question but that he would have reached the same result notwithstanding his initial error”).
3. Evidence Submitted to the Appeals Council
Plaintiff's attorney submitted to the Appeals Council a job description for an assistant store manager that he obtained from Aldi's website on August 14, 2020. Tr. at 367-70. The job description specifies the following physical demands: “[a]bility to stock merchandise from store receiving to shelving; ability to place product, weighing up to 45 pounds, on shelving at various heights”; and “[r]egularly required to sit, stand, bend, reach, push, pull, lift, carry, and walk about the store.” Tr. at 370.
Plaintiff argues the description of her PRW that was submitted to the Appeals Council showed the VE erred in characterizing the job and testifying that the hypothetical individual could perform it, given the RFC assessment. [ECF No. 14 at 17]. She maintains that because the VE's testimony was offered at the hearing, she was not required to meet the good cause requirements in presenting evidence to rebut it. Id. She contends the job description she provided to the Appeals Council was not a representation as to how she did her job, but, rather, was a description of how the job was generally performed in the national economy. [ECF No. 16 at 7]. She claims the VE's citation of other jobs at the light exertional level would still direct a finding of “disabled” under Medical-Vocational Guideline rule 202.06, as of her fifty-fifth birthday. Id. at 8.
The Commissioner argues the evidence submitted to the Appeals Council does not warrant remand. [ECF No. 15 at 18]. He maintains that, although the job description Plaintiff provided to the Appeals Council suggests the RFC would not permit performance of her specific PRW, the ALJ did not find she could perform her PRW as actually performed. Id. He contends the ALJ found Plaintiff could perform her PRW as generally performed, and the new evidence does not undermine that conclusion. Id. He notes the VE identified and the ALJ acknowledged in his decision other light jobs that could be performed by an individual with Plaintiff's RFC. Id. at 19.
The undersigned declines to address Plaintiff's third argument in detail, given the recommendation the case be remanded for other reasons. Plaintiff will have the opportunity to submit additional evidence for the ALJ's consideration.
III. Conclusion and Recommendation
The court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported as a matter of fact and law. Based on the foregoing, the court cannot determine that the Commissioner's decision is supported by substantial evidence. Therefore, the undersigned recommends, 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 42 U.S.C. § 405(g), that this matter be reversed and remanded for further administrative proceedings.
The parties are directed to note the important information in the attached “ Notice of Right to File Objections to Report and Recommendation.”
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 901 Richland Street Columbia, South Carolina 29201
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).