Opinion
No. 5:18-CV-60-D
01-24-2019
JAMES MATTHEWS, Plaintiff/Claimant, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-15, -21] pursuant to Fed. R. Civ. P. 12(c). Claimant James Matthews ("Claimant") filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of his applications for a period of disability, Disability Insurance Benefits ("DIB"), and Supplemental Security Income ("SSI") payments. The time for filing responsive briefing has expired, and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Claimant's Motion for Judgment on the Pleadings be allowed, Defendant's Motion for Judgment on the Pleadings be denied, and the matter be remanded to the Commissioner for further proceedings.
I. STATEMENT OF THE CASE
Claimant filed applications for a period of disability, DIB, and SSI on April 23, 2014, alleging disability beginning May 1, 2012. (R. 16, 182-90). The claims were denied initially and upon reconsideration. (R. 16, 61-102). A hearing before an Administrative Law Judge ("ALJ") was held on December 19, 2016, at which Claimant, represented by counsel; a witness; and a vocational expert ("VE") appeared and testified. (R. 31-60). On February 23, 2017, the ALJ issued a decision denying Claimant's request for benefits. (R. 13-30). On December 29, 2017, the Appeals Council denied Claimant's request for review. (R. 1-5). Claimant then filed a complaint in this court seeking review of the now-final administrative decision.
II. STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act ("Act"), 42 U.S.C. § 301 et seq., 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). "The findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive . . . ." 42 U.S.C. § 405(g). Substantial evidence is "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a "large or considerable amount of evidence," Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is "more than a mere scintilla . . . and somewhat less than a preponderance." Laws, 368 F.2d at 642. "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 v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the "substantial evidence" inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. §§ 404.1520 and 416.920 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in "substantial gainful activity," i.e., currently working; and (2) must have a "severe" impairment that (3) meets or exceeds [in severity] the "listings" of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity to (4) perform . . . past work or (5) any other work.Albright v. Comm'r of the SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). "If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps." Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the "special technique" described in 20 C.F.R. §§ 404.1520a(b)-(c) and 416.920a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): understand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself. Id. §§ 404.1520a(c)(3), 416.920a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the "special technique." Id. §§ 404.1520a(e)(3), 416.920a(e)(3).
In this case, Claimant alleges the ALJ erred by failing to perform a function-by-function assessment of Claimant's ability to walk and by failing to evaluate the medical necessity of Claimant's assistive device. Pl.'s Mem. [DE-16] at 10-16.
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Claimant "not disabled" as defined in the Act. At step one, the ALJ found Claimant had not engaged in substantial gainful employment since the alleged onset date. (R. 18). Next, the ALJ determined Claimant had the following severe impairments: degenerative disc disease, knee osteoarthritis, neuropathy, and obesity. (R. 18-20). The ALJ determined Claimant's sleep apnea and depression were non-severe impairments. Id. At step three, the ALJ concluded Claimant'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, Appendix 1. (R. 20). Applying the technique prescribed by the regulations, the ALJ found that Claimant's mental impairments had resulted in mild limitations in understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. Id.
Prior to proceeding to step four, the ALJ assessed Claimant's residual functional capacity ("RFC"), finding that Claimant had the ability to perform light work except he needs to adjust positions every 30 minutes without leaving work; can only occasionally climb ladders, ropes, or scaffolds; and can tolerate occasional exposure to pulmonary irritants and hazards. (R. 20-24). In making this assessment, the ALJ found Claimant's statements about the intensity, persistence, and limiting effects of his symptoms were "not entirely consistent with the medical evidence and other evidence in the record . . . ." (R. 21). At step four, the ALJ concluded Claimant was unable to perform any past relevant work. (R. 24). At step five, upon considering Claimant's age, education, work experience, and RFC, the ALJ determined there are jobs that exist in significant numbers in the national economy that Claimant can perform. (R. 25).
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If an individual can perform light work, he or she can also perform sedentary work, unless there are additional limiting factors such as the loss of fine dexterity or the inability to sit for long periods of time. 20 C.F.R. §§ 404.1567(b), 416.967(b).
V. DISCUSSION
Claimant contends the ALJ erred by failing to perform a function-by-function assessment of Claimant's ability to walk and by failing to evaluate the medical necessity of Claimant's assistive device. Pl.'s Mem. [DE-16] at 10-16. The Commissioner contends the ALJ's RFC determination is supported by substantial evidence. Def.'s Mem. [DE-22] at 5-9.
An individual's RFC is the capacity an individual possesses despite the limitations caused by physical or mental impairments. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1); see also S.S.R. 96-8p, 1996 WL 374184, at *1 (July 2, 1996). The RFC is based on all relevant medical and other evidence in the record and may include a claimant's own description of limitations arising from alleged symptoms. 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3); see also S.S.R. 96-8p, 1996 WL 374184, at *5. Where a claimant has numerous impairments, including non-severe impairments, the ALJ must consider their cumulative effect in making a disability determination. 42 U.S.C. § 423(d)(2)(B); see Hines v. Brown, 872 F.2d 56, 59 (4th Cir. 1989) ("[I]n determining whether an individual's impairments are of sufficient severity to prohibit basic work related activities, an ALJ must consider the combined effect of a claimant's impairments.") (citations omitted). The ALJ has sufficiently considered the combined effects of a claimant's impairments when each is separately discussed by the ALJ, and the ALJ also discusses a claimant's complaints and activities. Baldwin v. Barnhart, 444 F. Supp. 2d 457, 465 (E.D.N.C. 2005) (citations omitted).
In Mascio, the Fourth Circuit explained that when assessing RFC, Ruling 96-8p requires the ALJ to "'first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions' listed in the regulations." 780 F.3d at 636 (footnote omitted) (quoting S.S.R. 96-8p). The ruling further requires "a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations)." Id. (quoting S.S.R. 96-8p); see also Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000) (observing that the ALJ "must build an accurate and logical bridge from the evidence to his conclusion"). "Only after such a function-by-function analysis may an ALJ express RFC 'in terms of the exertional levels of work.'" Monroe v. Colvin, 826 F.3d 176, 179 (4th Cir. 2016) (quoting Mascio, 780 F.3d at 636). The Fourth Circuit has rejected "a per se rule requiring remand when the ALJ does not perform an explicit function-by-function analysis." Mascio, 780 F.3d at 636. Rather, the court explained that "[r]emand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review." Id. (citation omitted). Therefore, when the ALJ fails to conduct the function-by-function analysis, the court must look to the ALJ's RFC discussion to determine whether it otherwise provides a sufficient basis for meaningful review.
Here, the ALJ failed to conduct a function-by function analysis of Claimant's work-related ability to walk or to specifically discuss the Claimant's need for a cane when concluding that Claimant can perform a limited range of light work, which may require "a good deal of walking," 20 C.F.R. §§ 404.1567(b), 416.967(b). (R. 20-24). The Commissioner contends that the ALJ's detailed discussion of the medical evidence demonstrates Claimant's functioning is greater than alleged and provides substantial evidence supporting the ALJ's decision. Def.'s Mem. [DE-22] at 5-9. However, the ALJ's analysis of Claimant's testimony and the medical evidence is lacking and there is contradictory evidence in the record as to Claimant's work-related ability to walk. This deficiency frustrates meaningful review of the ALJ's decision and requires remand.
First, the ALJ's analysis of Claimant's testimony fails to sufficiently address Claimant's allegations regarding his ability to walk. Claimant testified to experiencing low back pain, a burning sensation between his shoulder blades, numbness in his feet, shooting pain in his right leg, tingling in his fingers, and muscle spasms in his legs and fingers. (R. 44-45). Injections were unsuccessful, he gets some temporary relief from a TENS unit, and medication somewhat lessens his pain but does not eliminate it entirely. (R. 45-46). Claimant also testified to experiencing pain and swelling in his knees, and he wears a brace on his right knee. (R. 46-47). He was told he needed surgery on both knees, but he cannot afford it and has been more focused on his back pain. (R. 46). Claimant normally can walk for 20 minutes before needing to sit and rest for 10-15 minutes, and after walking for 40 minutes continuously he has to go home and lie down. (R. 49). Claimant had been using a cane, which was not prescribed, to ambulate for at least two and a half years, and it helped him with balance and keeping the pressure off his right leg. Id. Claimant spends most of his day lying on a chaise lounge watching television, but he does get up for a few minutes at a time throughout the day to straighten up around the house. (R. 51).
In finding Claimant's testimony regarding the intensity, persistence, and limiting effects of his symptoms "not entirely consistent" with other evidence in the record, the ALJ cited Claimant's testimony that he drove 20 minutes to the hearing, drives once or twice a week, straightens the house, bathes himself with the use of a bar to get in and out of the bathtub, and uses medication to help manage his pain. (R. 21). First, it is not apparent how these examples are inconsistent with Claimant's asserted limitations or other evidence in the record or how they support the RFC determination, and the ALJ provided no explanation. Mascio, 780 F.3d at 639-40. Next, the ALJ failed to consider the extent to which Claimant performs these activities. Woods v. Berryhill, 888 F.3d 686, 695 (4th Cir. 2018). For example, Claimant testified that he straightens up only for a few minutes at a time throughout the day and engages in limited driving (R. 51), but it is unclear how these activities demonstrate Claimant is capable of light work. See Lewis v. Berryhill, 858 F.3d 858, 868 (4th Cir. 2017) (noting "the ability to perform incremental activities interrupted by periods of rest," such as driving short distances or shopping with assistance, do not demonstrate a claimant is capable of work). Finally, the ALJ credited Claimant's testimony regarding the need to adjust positions every 30 minutes due to pain (R. 24), but did not credit Claimant's testimony regarding the inability to walk for more than 20 minutes before needing to set and rest for 10-15 minutes or the inability to walk more than 40 minutes before needing to lie down. In Mascio, given similar facts, the Fourth Circuit found the ALJ's failure to explain some, but not all, of the claimant's statements required remand.
Mascio testified that "she cannot walk more than about 100 feet, can stand for only 30 minutes, and can only lift about 15 pounds." A.R. 495. It appears that the ALJ credited the second statement, by including the sit/stand option in his finding as to residual functional capacity. But despite Mascio's assertion that she was limited in her ability to walk and lift, the ALJ found that Mascio could perform "light work," which includes lifting up to 20 pounds and performing "a good deal of walking." 20 C.F.R. § 416.967(b) (defining "light work"). Nowhere, however, does the ALJ explain how he decided which of Mascio's statements to believe and which to discredit, other than the vague (and circular) boilerplate statement that he did not believe any claims of limitations beyond what he found when considering Mascio's
residual functional capacity. The ALJ's lack of explanation requires remand.Mascio, 780 F.3d at 640. Here, it is not clear why the ALJ accommodated Claimant's need to adjust positions every 30 minutes but not the limitations on walking, and the ALJ's failure to explain requires remand.
Next, the ALJ's recitation of the medical evidence is an insufficient substitute for the functional analysis of Claimant's word-related ability to walk because the medical records contain contradictory evidence that the ALJ either failed to discuss or failed to resolve. A review of Claimant's medical records indicates he continued to experience back pain radiating to the left lower extremity after a 2005 surgery and the pain began worsening in 2012. Claimant visited the emergency department in 2012 and 2013 when his back pain was exacerbated by falls or other trauma. (R. 22, 271-312). In April 2014, Claimant reported to his treatment provider worsening back pain radiating to his lower extremity and knee pain, and on examination he demonstrated decreased flexion, extension, bending, and rotation of the spine and pain with flexion of the left knee. (R. 22, 317-19).
Claimant began treatment with Orthopaedic Specialists of North Carolina in April 2014, and on examination he demonstrated tenderness and mild pain with range of motion of the cervical spine, tenderness of the lumbar spine and paraspinous muscle, mild pain with flexion and extension of the back, a negative straight-leg raise test, normal strength, and tenderness in the knees with palpation. (R. 22-23, 351-54). Imaging of the lumbar spine showed decreased disc space between L2 and L4 and L5-S1, imaging of the cervical spine showed osteoarthritis at every level and decreased disc space between C3-C6, and imaging of the bilateral knees show moderate osteoarthritic changes. (R. 22-23, 353). Claimant received cortisone injections in his knees, he was prescribed Mobic and Neurotin, and an MRI was ordered. (R. 353). A May 2014 MRI of the cervical spine and lumbar spine indicated the following: left foraminal disc protrusion leading to moderate left foraminal narrowing at C7-T1 and disc bulge leading to minimal ventral thecal sac flattening; slight endplate ridging and disc bulging leading to ventral thecal sac flattening without canal stenosis or cord distortion at C5-6 and C6-7; and disc degeneration, disc bulging, and spondylosis at L5-S1 with no canal stenosis and the presence of mild-moderate bilateral foraminal narrowing. (R. 23, 347-50). Claimant continued orthopedic treatment through August 2014, but his pain did not improve despite multiple injections; he demonstrated normal range of motion but with moderate to severe pain with flexion and extension, normal gait and strength, some positive and negative straight-leg raise tests, tenderness to palpation, and positive slump test on the left; he rated his pain as 5 or 6 out of 10; and his symptoms were noted to be concordant with the left-sided disc bulge at L5-S1. (R. 23, 326-45, 397-98).
Claimant's treating orthopedist referred him for a surgical consultation, but Claimant was not a surgical candidate and was referred to pain management due to failure of conservative treatment. (R. 390-96). In November 2014, Claimant reported his pain was 5 out of 10 most days but increased to 8 out of 10 with activities of daily living and 6 out of 10 with walking, and on examination Claimant demonstrated tenderness to palpation at the lumbosacral junction, lumbar range of motion limited secondary to pain, a positive left seated straight-leg raise test, and normal sensory examination, reflex examination, and manual muscle testing. (R. 385-88). Claimant began pain management in December 2014, and records through December 2016 indicate his pain medication worked well for the most part, reducing his pain to a 3 or 4 out of 10, although he reported having good days and bad days. (R. 360-84, 429-88, 507-09). Claimant's pain medications included Hydrocodone, Flexeril, Neurontin, and oxycodone. Id. Claimant's primary care provider, who was treating Claimant for hypertension, also noted that Claimant reported back and joint pain in 2015 and 2016. (R. 466-76).
The ALJ did not bridge the gap between the evidence and the conclusion that Claimant could perform light work, which may involve a good deal of walking. Woods, 888 F.3d at 694. The ALJ states that Claimant's "treatment-seeking history, diagnostic test results, clinical signs, symptoms, medications and other prescribed treatment demonstrate that the claimant is able to perform some physical work activities." (R. 21). However, as summarized above, there is evidence in the record, including treatment history, imaging results, symptoms, medications, and examination records, that would support Claimant's subjective complaints of pain and the associated limiting effects. While Claimant experienced some improvement with medication management, it is not readily apparent that Claimant could perform the amount of walking that may be required for light work given the evidence in the record that Claimant's activities were very limited and increased activity exacerbated his pain. See Mascio, 780 F.3d at 637 (finding the ALJ's conclusion about a claimant's ability to perform certain functions "says nothing about [the claimant's] ability to perform them for a full day."). In this case, the lack of explanation frustrates meaningful review. See Thomas v. Berryhill, No. 17-2215, 2019 WL 193948, at *3 (4th Cir. Jan. 15, 2019) ("[A] proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion. The second component, the ALJ's logical explanation, is just as important as the other two."). Accordingly, the ALJ's failure to address contradictory evidence and to explain how the evidence supports the RFC requires remand.
Finally, the ALJ failed to consider whether Claimant's cane was medically necessary. The ALJ must consider the impact of a "medically required" hand-held assistive device on a claimant's functional capacity. See Taylor v. Berryhill, No. 5:17-CV-78-FL, 2018 WL 852396, at *3 (E.D.N.C. Jan. 10, 2018) (citing Eason v. Astrue, No. 2:07-CV-30-FL, 2008 WL 4108084, at *16 (E.D.N.C. Aug. 29, 2008); S.S.R. 96-9p, 1996 WL 374185, at *7 (July 2, 1996)). "The requirement to use a hand-held assistive device may . . . impact . . . [an] individual's functional capacity by virtue of the fact that one or both upper extremities are not available for such activities as lifting, carrying, pushing, and pulling." 20 C.F.R. part 404, subpt. P, app. 1, § 1.00J.4. Social Security Ruling 96-9p provides guidance regarding when a hand-held assistive device is medically required. S.S.R. 96-9p, 1996 WL 374185, at *7. "To find that a hand-held assistive device is medically required, there must be medical documentation establishing the need for a hand-held assistive device to aid in walking or standing, and describing the circumstances for which it is needed (i.e., whether all the time, periodically or only in certain situations; distance and terrain; and any other relevant information)." Id. "[A] prescription or the lack of a prescription for an assistive device is not necessarily dispositive of medical necessity." Fletcher v. Colvin, No. 1:14-CV-380, 2015 WL4506699, at *8 (M.D.N.C. July 23, 2015) (citing Staples v. Astrue, 329 F. App'x 189, 191-92 (10th Cir. 2009)).
"While Social Security Ruling 96-9[p] concerns individuals capable of less than a full range of sedentary work, district courts within the Fourth Circuit consistently rely on the Ruling for guidance when a claimant alleges that a hand-held assistive device was not adequately considered in his or her disability determination." Peake v. Berryhill, No. 5:17-CV-01998, 2018 WL 1178256, at *15 (S.D.W. Va. Feb. 8, 2018), adopted by 2018 WL 1177354 (Mar. 6, 2018).
Claimant testified that he had been using a cane, which was not prescribed, to ambulate for at least two and a half years and it helped him with balance and keeping the pressure off his right leg. (R. 49). The ALJ recounted this testimony and noted that Claimant walked with a cane at the hearing, but did not discuss whether Claimant's cane was medically required. (R. 21). However, Claimant has failed to point to medical documentation establishing the need for a cane and the circumstances for which it is needed. See Gilmer v. Berryhill, No. 3:17-CV-539-FDW, 2018 WL 3518470, at *2 (W.D.N.C. July 20, 2018) ("The claimant bears the burden of presenting 'medical evidence establishing the need for a cane and describing the circumstances for which it is needed.'") (quoting S.S.R. 96-9p). The March 28, 2017 statement, on a check-the-box form, of Dr. Suh indicating Claimant medically requires a hand-held assistive device for ambulation is insufficient because it does not address the circumstances for which a cane is required. (R. 8). Accordingly, the ALJ's failure to conduct the medical necessity inquiry regarding Claimant's use of a cane does not require remand.
VI. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Claimant's Motion for Judgment on the Pleadings [DE-15] be ALLOWED, Defendant's Motion for Judgment on the Pleadings [DE-21] be DENIED, and the matter be remanded to the Commissioner 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 February 7, 2019 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)(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. Any response to objections shall be filed within 14 days of the filing of the objections.
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 such 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 Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985).
SUBMITTED, the 24 day of January 2019.
/s/_________
Robert B. Jones, Jr.
United States Magistrate Judge