Opinion
No. 5:17-CV-00091-D
01-23-2018
Johnna Price Jones, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
Memorandum & Recommendation
Plaintiff Johnna Price Jones instituted this action on March 3, 2017, to challenge the denial of her application for social security income. Jones claims that the Administrative Law Judge ("ALJ") Mark C. Ziercher erred when he found that her anxiety and depression were non-severe impairments. Both Jones and Defendant Nancy A. Berryhill, the Acting Commissioner of Social Security, have filed motions seeking a judgment on the pleadings in their favor. D.E. 16, 17.
After reviewing the parties' arguments, the court has determined that ALJ Ziercher erred in his determination. ALJ Ziercher discounted Jones's depression and anxiety and their attendant symptoms despite evidence in the record establishing these impairments and their effect on her functioning. Therefore, the undersigned recommends that the court grant Jones's motion, deny Berryhill's motion, and remand the matter to the commissioner for further consideration.
The court has referred this matter to the undersigned for entry of a Memorandum and Recommendation. 28 U.S.C. § 636(b).
I. Background
On April 10, 2015, Jones filed an application for disability benefits alleging a disability that began on March 27, 2015. After her claim was denied at the initial level and upon reconsideration, Jones appeared before ALJ Ziercher for a hearing to determine whether she was entitled to benefits. ALJ Ziercher determined Jones was not entitled to benefits because she was not disabled. Tr. at 22-33.
ALJ Ziercher found that Jones had several severe impairments: cervical and lumbar degenerative disc disease, chronic pain syndrome, obesity, and chronic obstructive pulmonary disorder ("COPD"). Tr. at 24. ALJ Ziercher found that Jones's impairments, either alone or in combination, did not meet or equal a Listing impairment. Id.
ALJ Ziercher then determined that Jones had the residual functional capacity ("RFC") to perform a range of light work with additional limitations. Tr. at 26. She can frequently climb ramps, stairs, ladders, ropes, and scaffolds, and she can frequently balance, stoop, kneel, crouch, and crawl. Id. Jones can have occasionally exposure to moving mechanical parts and high, exposed places. Id. She can also have frequent exposure to respiratory irritants (e.g., fumes, noxious odors, dusts, mists, gases, and poor ventilation). Id. Finally, Jones can perform work that does not require operation of a motor vehicle or heavy equipment. Id.
ALJ Ziercher concluded that Jones was capable of performing her past relevant work as a customer service representative as it is generally performed and as she actually performed it. Tr. at 31. He further found that she was capable of performing her past work as a telephone installation technician as that work is generally performed. Id. Thus, ALJ Ziercher found that Jones was not disabled. Tr. at 33.
After unsuccessfully seeking review by the Appeals Council, Jones commenced this action in March 2017. D.E. 5.
II. Analysis
A. Standard for Review of the Acting Commissioner's Final Decision
When a social security claimant appeals a final decision of the Commissioner, the district court's review is limited to determining whether, based on the entire administrative record, there is substantial evidence to support the Commissioner's findings. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is defined as "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). The court must affirm the Commissioner's decision if it is supported by substantial evidence. Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996).
B. Standard for Evaluating Disability
In making a disability determination, the ALJ engages in a five-step evaluation process. 20 C.F.R. § 404.1520; see Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005). The ALJ must consider the factors in order. At step one, if the claimant is engaged in substantial gainful activity, the claim is denied. At step two, the claim is denied if the claimant does not have a severe impairment or combination of impairments significantly limiting him or her from performing basic work activities. At step three, the claimant's impairment is compared to those in the Listing of Impairments. See 20 C.F.R. Part 404, Subpart P, App. 1. If the impairment is listed in the Listing of Impairments or if it is equivalent to a listed impairment, disability is conclusively presumed. However, if the claimant's impairment does not meet or equal a listed impairment, the ALJ assesses the claimant's RFC to determine, at step four, whether he can perform his past work despite his impairments. If the claimant cannot perform past relevant work, the analysis moves on to step five: establishing whether the claimant, based on his age, work experience, and RFC can perform other substantial gainful work. The burden of proof is on the claimant for the first four steps of this inquiry, but shifts to the Commissioner at the fifth step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
C. Medical Background
Jones has a history of several significant impairments. In May 2013, she was seen at Eastern Carolina Medical Center for chest tightness, dyspnea, and wheezing. Tr. at 321-23. A pulmonary function test revealed FVC at 85% of predicted value, FEV1 at 78% of predicted value, and DLCO at 66% of predicted value. Tr. at 291. Testing also revealed airway obstruction with minimal obstructive lung defect. Id.
Two months later, Jones returned to Eastern Carolina Medical Center complaining of worsening fatigue and weakness. Tr. at 274. She also reported anxiety and crying spells. Id. The following month, her provider prescribed Xanax for these symptoms. Tr. at 273.
Jones sought treatment for her back and neck pain at Advanced Spine & Pain Center from 2014 through 2016. Tr. at 328-64, 372-406. She reported worsening cervical thoracic myofasciitis from sitting at a computer desk at her new job. Tr. at 360. Although providers recommended frequent breaks with stretching, Jones reported that her job did not allow for this. Id. She received both trigger point and lumbar epidural steroid injections, along with nerve blocks, but her symptoms persisted. Id.
An August 2014 MRI of Jones's lumbar spine showed multilevel degenerative changes resulting in mild to moderate neural foraminal stenosis and a small synovial cyst in the left posterior epidural space at L4-5. Tr. at 407-08. A cervical MRI on the same date revealed a small syrinx of the cervical thoracic cord and mild degenerative changes. Tr. at 409-10.
In May 2015, Jones received an evaluation at Duke for cholelithiasis. Tr. at 365-68. At this time, she reported significant symptoms of depression and anxiety symptoms since the time of her husband's death two years earlier. Id.
Six months later, Jones returned to Advanced Spine & Pain Center for pain in her neck, back, and lower extremities. Tr. at 454. Providers advised her to refrain from driving or operating heavy machinery due to medication-related drowsiness. Tr. at 458. The following month, Jones reported back and lower extremity symptoms to include shooting pain into her left leg. Tr. at 466-69. She also complained of numbness and tingling that was exacerbated by sitting, standing, and driving and alleviated with reclining. Id. An examination found normal gait, tenderness to palpitation over the lumbar spine, and negative straight leg raises upon testing. Id.
In January 2016, Jones reported that her pain was relatively well-controlled but that she was experiencing increased stress. Tr. at 477. At that time and again the following month, providers prescribed medications for her anxiety and depression. Tr. at 438-52.
Jones testified at the hearing that she could walk 50 to 100 feet and stand or sit for 15 minutes before needing relief. Tr. at 49. She testified that she drives less because she has difficulty turning her neck. Tr. at 50. Jones stated that was no long able to talk on the phone for long periods of time because of breathing difficulties. Tr. at 59. She also reported improvement in her breathing problems since she stopped working at her job which required her to talk on the phone. Id.
Jones rated her depression when on medication as a four or five out of ten. Tr. at 54. Her medication makes her symptoms tolerable and keeps her from crying all the time. Tr. at 55. Jones similarly rated her anxiety as a five out of ten. Tr. at 56. She stated that her anxiety is triggered when she is around ten or more people. Tr. at 56-57. Jones testified that she has avoided family and friends because of her depression and anxiety. Tr. at 59-60. It also limits her ability to spend time with her grandchildren. Tr. at 60. Jones testified that she does not handle stress as well as she used to handle it. Id.
Dr. Robert Patterson conducted a post-hearing consultative examination in July 2018. Tr. at 498-502. Dr. Patterson noted that Jones appeared in apparent distress and was winded moving in the exam room, which improved after she sat down. Id. A cervical spine x-ray yielded normal results. Id. However, a pulmonary function test showed FEV1 at 76% of predicted value. Id.
D. Anxiety and Depression
Jones contends that ALJ Ziercher erred in failing to include her anxiety and depression among her severe impairments at step two of the sequential analysis. The Commissioner maintains that Jones's failed to carry her burden of demonstrating that these conditions posed more than a minimal effect on her ability to perform basic work activity. The undersigned finds that ALJ's Ziercher's reasons for concluding that the depression and anxiety were non-severe impairments lacks support in the record. Accordingly, this issue warrants remand.
At step two of the sequential evaluation process, the ALJ must consider the severity of a claimant's impairments. 20 C.F.R. § 404.1520(a)(4)(h). A physical or mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by a claimant's statement of symptoms." 20 C.F.R. § 404.1508. "To be found disabled, an individual must have a medically determinable 'severe' physical or mental impairment or combination of impairments that meets the duration requirement." SSR 96-3p, 1996 WL 374181, at *1 (July 2, 1996). The duration requirement provides that unless a claimant's "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. An impairment is considered "severe" when it "significantly limits an individual's physical or mental abilities to do basic work activities; an impairment(s) that is 'not severe' must be a slight abnormality (or a combination of slight abnormalities) that has no more than a minimal effect on the ability to do basic work activities." SSR 96-3p, 1996 WL 374181, at *1; see also 20 C.F.R. § 404.1522 (defining non-severe impairments and providing examples of basic work activities).
The burden of proof and production during the second step rests on the claimant. Pass, 65 F.3d at 1203. "As long as a claimant has any severe impairment or combination of impairments, the ALJ must proceed beyond step two and consider all of the impairments (including non-severe impairments) at the remaining steps of the sequential evaluation process[.]" Pittman v. Astrue, No. 5:08-CV-83-FL, 2008 WL 4594574, at *4 (E.D.N.C. Oct. 10, 2008). Thus, any error at step two in failing to properly consider whether an impairment is severe may be harmless where the ALJ considers that impairment in subsequent steps. See Jones v. Astrue, No. 5:07-CV-452-FL, 2009 WL 455414, at *2 (E.D.N.C. Feb. 23, 2009) (finding no reversible error where an ALJ does not consider whether an impairment is severe at step two of the sequential evaluation provided the ALJ considers that impairment in subsequent steps).
ALJ Ziercher concluded that Jones's anxiety and depression "summarily have been diagnosed without clinical signs." Tr. at 25. He further remarked that based on a lack of medical documentation, these impairments were not severe because they did not cause more than a minimal limitation in her ability to perform basic mental work activities. Id. The undersigned cannot find that substantial evidence supports ALJ Ziercher's finding.
The record demonstrates that Jones reported her depression and anxiety to her providers. She stated that she experienced crying spells and increasing stress. Providers prescribed medications to alleviate the symptoms caused by these conditions. In addition to statements to her providers, Jones also offered testimony at the hearing before ALJ Ziercher as to these impairments and the limitations they caused. She stated that: with medication, her depression is a four or five out of ten; her medication makes her symptoms tolerable and keeps her from crying all the time; her anxiety is a five out of ten with medication; her anxiety is triggered when she is around several people; because of these conditions, she has avoided family and friends and limits her time with her grandchildren; and her ability to handle stress has been affected. Tr. at 54-60. Additionally, the consultative examiner observed that Jones seemed in apparent distress at her examination. Tr. at 501.
State agency reviewers, whose assessments were given some weight, concluded Jones mental health conditions were not severe impairments because she received no mental health treatment and took no medications to control her symptoms. Tr. at 25, 78, 92. The record reflects, however, that Jones reported her symptoms to providers who prescribed medications for these conditions. Tr. at 274, 365-68, 477, 438-52.
Courts have found that treatment of anxiety and depression with prescription medication may suggest the presence of a medically determinable impairment. See Scroggins v. Astrue, 598 F. Supp. 2d 800, 806 (N.D. Tex. 2009) (ALJ cannot dismiss or disregard claimant's allegations of depression where medical records show diagnosis, physicians prescribed medication for depression, and claimant had follow-up visits for prescription refills); see also Stovall v. Astrue, No. 11-CV-00107-SAA, 2013 WL 1873584, at *4-5 (N.D. Miss. 2013) (holding that the ALJ's disregard of the claimant's diagnosis of depression and treatment with prescription medication was reversible error because the ALJ applied an incorrect standard of severity at step two of the sequential analysis). Thus, the fact that Jones took serval prescription medications to manage her depression and anxiety during the applicable period, coupled with her statements as to how these conditions have affected her functioning even when treated with medications, could establish that these conditions presented more than a minimal effect on her functioning.
In sum, contrary to ALJ Ziercher's summary dismissal of her mental health conditions, the evidence shows that Jones sought treatment, reported her depression and anxiety symptoms to her providers at Eastern Carolina Medical Center, Duke, and Campbell University Care Clinic, and her providers routinely prescribed medications. Her diagnoses and treatment by providers and their treatment with prescription medications, coupled with Jones's testimony about how these conditions affect her social functioning establish the there is at least some evidence that could support a finding that her depression and anxiety are severe impairments. See Martin v. Colvin, 165 F. Supp. 3d 506, 511 (N.D. Tex. 2016).
The Commissioner alludes to the fact that Jones's mental health symptoms are controlled with medications and therefore are not disabling. This appears to be factually incorrect. Moreover, the present inquiry is not whether these conditions are so severe as to preclude all work activity but whether they cause more than a minimal effect on her ability to perform basic work activity. --------
ALJ Ziercher's evaluation of Jones's credibility is also problematic. ALJ Ziercher found Jones to be partially credible in part because her statements of her "limited daily activities cannot be objectively verified with any reasonable degree of certainty." Tr. at 28. As the undersigned has noted in the past, the Regulations lack any requirement that a claimant's reported activities be verified with objective evidence in order to be credible. The applicable Regulations simply state that a claimant's statements will be evaluated in relation to the objective medical evidence and other evidence. See 20 C.F.R. § 404.1529(c)(4) ("We will consider your statements about the intensity, persistence, and limiting effects of your symptoms, and we will evaluate your statements in relation to the objective medical evidence and other evidence . . . We will consider whether there are any inconsistencies in the evidence and the extent to which there are any conflicts between your statements and the rest of the evidence[.]"). Thus, while a claimant need not produce objective evidence of how her symptoms limit her functioning, the available objective evidence can be used contradict or discredit her subjective claims. Id. See also Mickles, 29 F.3d 918, 921 (4th Cir. 1994) ("There is no practical difference between requiring a claimant to prove pain through objective evidence and rejecting her subjective evidence because it is not corroborated by objective evidence.").
Moreover, the nature of activities of daily living suggest that objective verification may not be possible. See Hyatt v. Sullivan, 899 F.2d 329, 337 (4th Cir. 1990) ("Because pain is not readily susceptible of objective proof, however, the absence of objective medical evidence of the intensity, severity, degree, or functional effect of pain is not determinative."); Kendle v. Colvin, No. 3:16-cv-27, 2016 WL 7337147, at *20 (N.D.W. Va. Nov. 30, 2016) ("[H]ow an ALJ would 'verify' a plaintiff's daily activities is equally unclear."), adopted by, 2016 WL 7335638 (Dec. 16, 2016). Other courts have declined to affirm a credibility determination that required similar proof where the credibility assessment lacked the support of substantial evidence. Beardsley v. Colvin, 758 F.3d 834, 837-38 (7th Cir. 2014); Bonner v. Colvin, No. 5:15-cv-03332, 2016 WL 4408831, at *17 (S.D.W. Va. Jul. 27, 2016); Roxin v. Comm'r of Soc. Sec., No. SAG-14-2311, 2015 WL 3616889, at *3 (D. Md. June 5, 2015); Holloway v. Astrue, No. 8:10-1357-JFA-JDA, 2011 WL 1374885, at *11 (D.S.C. Mar. 30, 2011), adopted by, 2011 WL 1376884 (Apr. 12, 2011); Mathews v. Astrue, No. 09-cv-385-FHM, 2010 WL 3168104, at *2 (N.D. Okla. Aug. 10, 2010). Such language will not require remand where the the reasons for the credibility determination are otherwise adequately explained. See Blackwell v. Colvin, No. 1:14-CV-00085-MOC, 2014 WL 7339132, at *6 (W.D.N.C. Dec. 23, 2014) (ALJ's error that claimant's daily activities were not "objectively verifiable" was harmless error because his credibility determination was supported by other substantial evidence of record); Baysden v. Colvin, No. 4:12-CV-303-FL. 2014 WL 1056996, at *6-7 (E.D.N.C. Mar. 18, 2014).
Here, however, the determination fails to demonstrate why Jones's credibility has been cast in doubt. After finding that they were non-severe impairments at step two, it is not clear that ALJ Ziercher considered her depression and anxiety at the subsequent stages of the sequential analysis. Moreover, in evaluating these conditions under the four broad functional areas set forth in Listing 12.00C, ALJ Ziercher found that Jones had no limitations in activities of daily living, social functioning, or maintaining concentration, persistence or pace, and no episodes of decompensation. Tr. at 25-26. As noted above, however, the record reflects that Jones became anxious when she was around ten or more people, had withdrawn from family and friends, and was unable to spend as much time with her grandchildren as she wanted. Additionally, the consultative examiner remarked on her apparent distress at the time of her examination. This undermines ALJ Ziercher's assessment that she had no limitation in social functioning.
The undersigned is unable to find that substantial evidence supports ALJ Ziercher's determination that Jones's depression and anxiety are not severe impairments because they pose no more than a minimal impact on her ability to do basic work activity. The RFC determination did not include limitations relating to Jones's anxiety and depression and the sequential analysis ended at step four when ALJ Ziercher found Jones was capable of performing her past relevant work.
Given the flawed credibility analysis, coupled with an erroneous finding that the record lacked documentation of her depression and anxiety, the undersigned cannot conclude that substantial evidence supports ALJ Ziercher's finding that these conditions were not severe impairments which had more than a minimal impact on her ability to do basic work activity. Moreover, as it is unclear whether ALJ Ziercher appropriately considered these conditions and their impact on Jones's functioning at the subsequent steps of the sequential analysis, the undersigned is unable to conclude that ALJ Ziercher's step two finding amounts to harmless error. Thus, remand is appropriate for further consideration of Jones's mental health conditions and what effect they have on her ability to function.
III. Conclusion
For the forgoing reasons, the undersigned recommends the court grant Jones's Motion for Judgment on the Pleadings (D.E. 16), deny Berryhill's Motion for Judgment on the Pleadings (D.E. 17), and remand the matter to the Commissioner for further consideration.
The court directs that the Clerk of Court serve a copy of this Memorandum and Recommendation on each of the parties or, if represented, their counsel. Each party shall have until 14 days after service of the Memorandum and Recommendation on the party to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation, receive further evidence, or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Owen v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985). Dated: January 23, 2018
/s/_________
Robert T. Numbers, II
United States Magistrate Judge