Opinion
4:23-CV-139-M-KS
05-10-2024
STEWART KEECH, Plaintiff, v. MARTIN O'MALLEY, Commissioner of Social Security Administration,[1] Defendant.
MEMORANDUM & RECOMMENDATION
KIMBERLY A. SWANK, United States Magistrate Judge
This matter is before the court for judicial review pursuant to 42 U.S.C. § 405(g) of a final administrative decision denying Plaintiff's application for a period of disability and disability insurance benefits (“DIB”) and supplemental security income (“SSI”). The parties have fully briefed the matter pursuant to the Supplemental Rules for Social Security Actions, and this matter is ripe for decision. Having carefully reviewed the administrative record and the parties' briefs, the undersigned recommends that the case be remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings.
STATEMENT OF THE CASE
Plaintiff applied for DIB and SSI on September 28, 2020, with an alleged onset date of July 9, 2020. (R. 10, 205-22.) The application was denied initially and upon reconsideration, and a request for hearing was filed. (R. 10, 77-78, 111-12, 137-39.) A telephonic hearing was held on September 29, 2022, before Administrative Law Judge (“ALJ”) Mason Hogan, who issued an unfavorable ruling on November 10, 2022. (R. 7-30, 44-76.) On June 27, 2023, the Appeals Council denied Plaintiff's request for review. (R. 1-6.) At that time, the ALJ's decision became the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481. On August 22, 2023, Plaintiff filed the instant civil action, seeking judicial review of the final administrative decision pursuant to 42 U.S.C. § 405(g).
D ISCUSSION
I. Standard of Review
The scope of judicial review of a final agency decision denying disability benefits is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; [i]t consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971), and Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)) (citations omitted) (alteration in original). “In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig, 76 F.3d at 589) (first and second alterations in original). Rather, in conducting the “substantial evidence” inquiry, the court determines whether the Commissioner has considered all relevant evidence and sufficiently explained the weight accorded to the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
II. Disability Determination
In making a disability determination, the Commissioner utilizes a five-step evaluation process. The Commissioner asks, sequentially, whether the claimant: (1) is engaged in substantial gainful activity; (2) has a severe impairment; (3) has an impairment that meets or equals the requirements of an impairment listed in 20 C.F.R. Part 404, Subpart P, App. 1; (4) can perform the requirements of past work; and, if not, (5) based on the claimant's age, work experience, and residual functional capacity can adjust to other work that exists in significant numbers in the national economy. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Albright v. Comm'r of SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). At the fifth step, the burden shifts to the Commissioner to show that other work exists in the national economy that the claimant can perform. Id. In making this determination, the ALJ must decide “whether the claimant is able to perform other work considering both [the claimant's residual functional capacity] and [the claimant's] vocational capabilities (age, education, and past work experience) to adjust to a new job.” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981). “If the Commissioner meets [this] burden, the ALJ finds the claimant not disabled and denies the application for benefits.” Mascio v. Colvin, 780 F.3d 632, 635 (4th Cir. 2015).
III. ALJ's Findings
Applying the five-step, sequential evaluation process, the ALJ found Plaintiff “not disabled” as defined in the Social Security Act (“the Act”). As a preliminary matter related to the DIB claim, the ALJ found Plaintiff meets the insured status requirements of the Act through September 30, 2025. (R. 12.) At step one, the ALJ found Plaintiff engaged in substantial gainful activity from January 2021 through March 2021 but that there has also been a continuous twelve-month period during which Plaintiff did not engage in substantial gainful activity. (R. 13.) Next, the ALJ determined Plaintiff has the severe impairments of lumbar degenerative disc disease and interspinal bursitis, thoracic spondylosis, migraines, and occipital neuraligia. (Id.)
At step three, the ALJ concluded Plaintiff's impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, App. 1. (R. 16-17.) The ALJ expressly considered Listings 1.15, 1.16, and, for equivalency purposes, 11.02. (Id.)
Before proceeding to step four, the ALJ assessed Plaintiff's residual functional capacity (“RFC”) and found that Plaintiff has
the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(b) and 416.967(b) except he is able to work in occupations that have exposure to no more than moderate noise levels as that term is used in the Dictionary of Occupational Titles. He is able
to work in occupations that have no exposure to lighting brighter than is found in a typical office, department store or home setting. He must avoid more than occasional exposure to dust, odors, gases, fumes, poor ventilation and extremes of temperature. He must avoid exposure to workplace hazards such as moving mechanical parts and high exposed places. He can have no contact with the public and he is not able to deal with crisis situations as an essential function of the job.(R. 17.) In making this assessment, the ALJ stated that he considered Plaintiff's symptoms and the evidence (both “objective medical” and “other”) based on the requirements of 20 C.F.R. §§ 404.1529, 416.929, and SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017), and found Plaintiff's statements concerning the intensity, persistence, and limiting effects of Plaintiff's symptoms “not entirely consistent with the medical evidence and other evidence in the record.” (R. 17-18.) At step four, the ALJ concluded that Plaintiff is unable to perform any past relevant work. (R. 21.) At step five, the ALJ determined, based upon Plaintiff's age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, namely: counter supply worker (DOT #319.687-010), linen room attendant (DOT #222.387-030), and mail clerk (DOT #209.687-026). (R. 22-23.) The ALJ concluded that Plaintiff has not been disabled under the Act from July 9, 2020, through the date of the decision. (R. 23.)
IV. Plaintiff's Arguments
Plaintiff contends the Commissioner erred by
(A) failing to explain how mild limitations relating to the non-severe impairments of depression and anxiety were accounted for in the RFC (Pl.'s Br. [DE #11] at 8-12);
(B) failing to account for the episodic nature of Plaintiff's migraine headaches (id. at 13-14); and
(C) failing to identify and resolve an apparent conflict at step five and failing to “find the job numbers from one or two of the occupations were a significant number of jobs” (id. at 14-20).The undersigned agrees with Plaintiff that the ALJ erred by failing to sufficiently discuss Plaintiff's allegations regarding the episodic nature of his migraines so as to permit meaningful review. Remand is therefore recommended. The undersigned further recommends that Plaintiff's remaining arguments not be addressed in light of the remand recommendation.
The ALJ found Plaintiff's migraines are a severe impairment and imposed some related restrictions in the RFC. (R. 13 (severe impairment finding), 17 (RFC), 20 (“[T]he undersigned has found the additional limitations regarding [Plaintiff]'s exposure to lighting, pulmonary irritants, temperature extremes and hazards are appropriate to better accommodate [Plaintiff]'s headaches.”), 21 (“As a result of his headaches with occipital neuralgia component, he must limit his exposure to migraine triggers such as noise, bright lights, [and] airborne irritants.”).) However, as noted by the ALJ, Plaintiff also stated that his migraines are triggered by changes in weather patterns and occur episodically, even after periods of good control with medication. (R. 17-20.) While ALJ Hogan stated Plaintiff's statements about his symptoms were not entirely consistent with the evidence in the case (R. 18), the ALJ did not explain why he appeared to credit Plaintiff's statements about certain headache triggers (lighting, noise, airborne irritants) and not others (weather patterns) (R. 18-21). ALJ Hogan also did not address Plaintiff's statements about the episodic nature of his migraines. (R. 18-21.) Moreover, the potentially dispositive nature of Plaintiff's migraines, and their alleged episodic nature, was squarely presented to the ALJ via a hypothetical question posed by Plaintiff's counsel to the Vocational Expert. (R. 70-71.)
ALJ Hogan's statement that Plaintiff claims “to experience headaches ‘99 [percent] of the time'” is a mischaracterization of Plaintiff's testimony. (R. 21.) Plaintiff testified that he can “sometimes . . . have up to four [migraines] a day” and that when he does have a migraine, he experiences stroke-like symptoms 99% of the time. (R. 59.)
“To enable meaningful review, ‘[t]he record should include a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence.'” Woody v. Kijakazi, No. 22-1437, 2023 WL 5745359, at *1 (4th Cir. Sept. 6, 2023) (quoting Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013)). In Woody, the Fourth Circuit held that an ALJ committed reversible error by failing to make specific factual findings regarding the frequency and severity of a claimant's headaches. Woody, 2023 WL 5745359, at *1 (first citing Dowling v. Comm'r of SSA, 986 F.3d 377, 388 (4th Cir. 2021); and then citing Thomas v. Berryhill, 916 F.3d 307, 311-12 (4th Cir. 2019)). More specifically, the Woody court explained:
The vocational expert testified a hypothetical person would be precluded from maintaining full time employment if she were absent more than once a month. The record shows that, even after receiving treatment that reduced the frequency of her headaches, Woody still reported getting headaches about once a week. And although Woody told her physicians the severity of her headaches had lessened with treatment, the record does not establish whether her headaches nevertheless remained severe enough to cause her to be absent from work when they occurred. The ALJ did not make specific factual findings on that point.Woody, 2023 WL 5745359, at *1.
The undersigned finds Woody's reasoning persuasive given Plaintiff's similar statements regarding his migraines. In the section of his brief devoted to this issue, the Commissioner does not even mention Woody, much less attempt to distinguish it. (Comm'r's Br. [DE #12] at 13-18.) The ALJ's failure to make specific findings regarding the frequency of Plaintiff's migraines is only exacerbated by the mischaracterization of Plaintiff's testimony and by the ALJ's apparent crediting of certain aspects of Plaintiff's statements about his migraines and not others. Remand is therefore recommended. See Woody, 2023 WL 5745359, at *1 (“The ALJ's failure to reach an ‘express conclusion in the first instance' on the potentially dispositive issue of whether the frequency and severity of Woody's headaches would cause her to be absent from work more than once a month-or to explain how, despite any potential absences, the evidence supported his finding that the limitations included in the RFC sufficiently accounted for Woody's impairments-is an error of law that necessitates remand.”).
Plaintiff's remaining arguments regarding the impact of mild mental difficulties on the RFC and an apparent conflict with the step-five jobs do not warrant further analysis given the more fundamental error discussed above. Any error as to these matters is unlikely to be repeated on remand.
C ONCLUSION
For the reasons stated above, it is RECOMMENDED that the Commissioner's decision be REVERSED and the matter be remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until May 24, 2024, 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 28 U.S.C. § 636(b)(1); 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. (May 2023).
A party that does not file written objections to the Memorandum and Recommendation by the foregoing deadline, 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 such review. In addition, a party's failure to file written objections by the foregoing deadline may 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 Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).