Opinion
4:20-CV-162-D
02-01-2022
LISA MOSELEY, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security Administration, [1] Defendant.
MEMORANDUM & RECOMMENDATION
KIMBERLY A. SWANK United States Magistrate Judge
This matter is before the court on the parties' cross motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Lisa Moseley (“Plaintiff”) filed this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the denial of her application for a period of disability and disability insurance benefits (“DIB”) and supplemental security income (“SSI”). The time for filing responsive briefs 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, the undersigned recommends that Plaintiff's Motion for Judgment on the Pleadings [DE #23] be granted, Defendant's Motion for Judgment on the Pleadings [DE #30] be denied, and the case be remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings.
S TATEMENT OF THE CASE
Plaintiff applied for DIB and SSI on May 19, 2017, with an alleged onset date of December 23, 2016, which she amended to January 23, 2017, by and through counsel. (R. 17, 38-39, 255-64, 288.) The application was denied initially and upon reconsideration, and a request for hearing was filed. (R. 17, 101-02, 135-36, 193-94.) A hearing was held on April 30, 2019, before Administrative Law Judge (“ALJ”) Joseph L. Brinkley, who issued an unfavorable ruling on June 18, 2019. (R. 14-70.) On June 25, 2020, 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 27, 2020, Plaintiff filed the instant civil action, seeking judicial review of the final administrative decision pursuant to 42 U.S.C. § 405.
DISCUSSION
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); 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.” Ha l 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, 634-35 (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 met the insured status requirements of the Act through June 30, 2018. (R. 19.) At step one, the ALJ found Plaintiff has not engaged in substantial gainful activity since January 23, 2017, the alleged onset date. (Id.) Next, the ALJ determined Plaintiff had the severe impairments of carpal tunnel syndrome, degenerative disc disease, fibromyalgia, inflammatory arthritis, dysfunction-major joints, and obesity. (R. 20.)
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. 21.) The ALJ expressly considered Listings 1.02 and1.04. (R. 22.)
Before proceeding to step four, the ALJ assessed Plaintiff's residual functional capacity (“RFC”) and found that Plaintiff had
the residual functional capacity to perform light work, as defined in 20 CFR 404.1567(b) and 416.967(b), except [Plaintiff]: can occasionally use her upper extremities for overhead lifting, reaching, pulling and pushing bilaterally and, otherwise, with frequent[] use [of] her upper extremities to lift, reach, pull and push in all other directions. [Plaintiff] can frequently use [] her upper extremities to grasp, finger, feel and handle bilaterally. She can perform occasional stooping, kneeling, crouching, climbing stairs and ramps, and using lower extremities bilaterally to operate foot and leg controls. [Plaintiff] cannot climb ladders, ropes, and scaffolds. She can have occasional exposure to temperature extremes. [Plaintiff] cannot work around dangerous, moving mechanical parts and unprotected heights. She will need the use of [a] cane in [the] right dominant hand for prolonged ambulation.(R. 22.) 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. 22, 25.) At step four, the ALJ concluded that Plaintiff is unable to perform any past relevant work. (R. 26.) Nonetheless, at step five, upon considering Plaintiff's age, education, work experience, and RFC, the ALJ determined there are jobs that exist in significant numbers in the national economy that Plaintiff could perform, namely: cashier II (DOT #211.462-010), office helper (DOT #239.567-010), and shipping & receiving weigher (DOT #222.387-074). (R. 27-28.) The ALJ concluded that Plaintiff had not been disabled under the Act from January 23, 2017, Plaintiff's alleged onset date, through the date of the decision. (R. 28.)
IV. Plaintiff's Arguments
Plaintiff contends the Commissioner erred by
(A) failing to conduct a functional assessment of Plaintiff's ability to stand and walk when assessing the RFC (Pl.'s Mem. Supp. Mot. J. Pldgs [DE #24] at 8-13); and
(B) failing to properly analyze whether Plaintiff needs a walker (id. at 13-15).
The Commissioner contends that ALJ Brinkley (A) correctly evaluated Plaintiff's RFC and adequately explained Plaintiff's standing and walking abilities, and (B) adequately evaluated evidence related to Plaintiff's need for an assistive device. (Def.'s Mem. Supp. Mot. J. Pldgs. [DE #31] at 6-12.) The undersigned disagrees with the Commissioner for the reasons explained below and, therefore, recommends remand.
A. Functional Assessment of Standing and Walking Abilities
Plaintiff contends ALJ Brinkley did not (i) perform a functional assessment of Plaintiff's walking and standing abilities or (ii) explain how he determined that Plaintiff can walk and stand for sufficient periods of time to perform light work. Plaintiff contends these alleged failures contravene Mascio, 780 F.3d at 639-40; Monroe v. Colvin, 826 F.3d 176, 189-90 (4th Cir. 2016); Woods v. Berryhi l
, 888 F.3d 686, 694 (4th Cir. 2018); and Dowling v. Comm'r of SSA, 986 F.3d 377, 388-89 (4th Cir. 2020). The undersigned agrees.
The RFC is an administrative assessment of “an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis” despite impairments and related symptoms. SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996); see also 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). “A ‘regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule.” SSR 96-8p, 1996 WL 374184, at *1. In determining the RFC, the ALJ considers an individual's ability to meet the physical, mental, sensory, and other requirements of work. 20 C.F.R. §§ 404.1545(a)(4), 416.945(a)(1). It is based upon all relevant evidence, which may include the claimant's own description of limitations from alleged symptoms. SSR 96-8p, 1996 WL 374184, at *5; 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). If necessary, an ALJ must “explain how any material inconsistences or ambiguities in the evidence were considered and resolved.” SSR 96- 8p, 1996 WL 374184, at *7.
An ALJ must “include a narrative discussion describing how the evidence supports each conclusion” in the RFC. Monroe, 826 F.3d at 189 (quoting Mascio, 780 F.3d at 636). The ALJ must specifically explain how certain pieces of evidence support particular conclusions and “discuss[ ] . . . which evidence the ALJ found credible and why.” Monroe, 826 F.3d at 189 (quoting Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013)). The Fourth Circuit has interpreted this to require an ALJ to “build an accurate and logical bridge from the evidence to his conclusion.” Monroe, 826 F.3d at 189 (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)).
“[A] proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion . . . . [M]eaningful review is frustrated when an ALJ goes straight from listing evidence to stating a conclusion.” Thomas v. Berryhi l
, 916 F.3d 307, 311 (4th Cir. 2019) (citing Woods, 888 F.3d at 694). Simply put, this means an ALJ must “[s]how [his] work.” Patterson v. Comm'r of SSA, 846 F.3d 656, 663 (4th Cir. 2017) (applying same principle to an ALJ's listing analysis). Such analysis- “[h]armonizing conflicting evidence and bolstering inconclusive findings, ” Patterson, 846 F.3d at 662-is a “necessary predicate” to determining whether substantial evidence supports the Commissioner's findings, Monroe, 826 F.3d at 189 (quoting Radford, 734 F.3d at 295). “An ALJ has a duty to explain the administrative decision so as to enable meaningful judicial review.” Parker v. Colvin, No. 4:13-CV-38-FL, 2014 WL 2604282, at *3 (E.D. N.C. June 11, 2014). Where a court is “left to guess about how the ALJ arrived at his conclusions on [a claimant's] ability to perform relevant functions . . ., remand is necessary.” Mascio, 780 F.3d at 637.
The Fourth Circuit has emphasized that the function-by-function assessment of a claimant's abilities, which is a necessary prerequisite to the RFC finding, must be based on the correct regulatory framework, i.e. the framework set forth in 20 C.F.R. §§ 404.1545, 416.945, and SSR 96-8p. Dowling, 986 F.3d at 387-88 (noting that the ALJ failed to cite to the regulatory framework in 20 C.F.R. § 416.945 and explained in SSR 96-8p and erred by relying exclusively on the symptom-evaluation framework explained in SSR 96-7p and SSR 16-3p). In Dowling, the Fourth Circuit faulted the ALJ, as it had similarly done in Thomas, 916 F.3d at 311-12, for beginning with a statement regarding the claimant's exertional abilities without “first engaging in ‘a function-by-function analysis.'” Dowling, 986 F.3d at 388 (quoting Monroe, 826 F.3d at 179).
Several aspects of ALJ Brinkley's decision lead to the conclusion that ALJ Brinkley, like the ALJ in Dowling, applied the incorrect framework when evaluating Plaintiff's RFC. First, the only reference ALJ Brinkley makes to 20 C.F.R. §§ 404.1545, 416.945, occurs in the “Applicable Law” section, which is not specific to this case and contains a boilerplate explanation of the Act and disability benefits application process. (R. 19.) Similarly, ALJ Brinkley referenced SSR 96-8p only in the “Applicable Law” boilerplate and in a discussion of mental impairments at step two. (R. 19, 21.) Second, ALJ Brinkley expressed Plaintiff's RFC “without first engaging in ‘a function-by-function analysis.'” Dowling, 986 F.3d at 388 (quoting Monroe, 826 F.3d at 179, and discussing Thomas, 916 F.3d at 311-12); (R. 22-26). In fact, there is no function-by-function assessment at all. (R. 22-26.) Third, after expressing Plaintiff's RFC, ALJ Brinkley stated that this finding was based on the requirements of 20 C.F.R. §§ 404.1529, 416.929, and SSR 16-3p, which are the regulation and concomitant SSR that address the process an ALJ uses to evaluate a claimant's symptoms. (R. 22.) Dowling identified this very problem and held that “an RFC assessment is a separate and distinct inquiry from a symptom evaluation, and the ALJ erred by treating them as one and the same.” Dowling, 986 F.3d at 387. Fourth, the narrative explanation and analysis that follows ALJ Brinkley's RFC statement contains little, if any, analysis or explanation of the specific RFC findings. (See R. 22-26.) The ALJ stated he reached certain conclusions regarding Plaintiff's functional limitations based on the summarized evidence. (Id.) Only at two points did ALJ Brinkley articulate something that comes close to being an analysis or explanation: (i) in declining to fully credit Plaintiff's statements about the severity of her symptoms, he stated that Plaintiff's statements were “inconsistent, ” noted certain treatment notes indicating normal findings, and found that “[s]uch [normal] findings would be not expected of an individual who is substantially limited in her physical functioning”; and (ii) in declining to fully credit the opinion of a medical consultant, ALJ Brinkley referenced certain treatment notes indicating Plaintiff was more restricted than the consultant opined. (R. 25.) Even this meager explanation does not show how the ALJ arrived at the specific functional limitations based on the evidence he listed. Cf. Thomas, 916 F.3d at 311 (“Indeed, our precedent makes clear that meaningful review is frustrated when an ALJ goes straight from listing evidence to stating a conclusion.”). For the foregoing reasons, the undersigned concludes that ALJ Brinkley applied an incorrect framework when assessing Plaintiff's RFC. See Dowling, 986 F.3d at 387-88.
In this section the ALJ does not identify the need to perform a function-by-function assessment of Plaintiff's exertional abilities before assessing the RFC as required by regulation, SSR 96-8p, and Fourth Circuit precedent.
ALJ Brinkley twice repeats his RFC assessment but still offers no explanation or analysis as to how he arrived at the RFC assessment. (R. 24-26.)
Had ALJ Brinkley performed the function-by-function assessment that is legally required, he likely would have provided explanation sufficient to permit meaningful review.
In addition, ALJ Brinkley's summary and characterization of evidence related to Plaintiff's standing and walking abilities is suspect. For example, ALJ Brinkley cites to an August 28, 2018, treatment note for the proposition that Plaintiff's gait “was noted as improved after she received trigger point injection for both hips.” (R. 24 (citing R. 1235).) But that treatment note states that Plaintiff's gait “improved somewhat” since the trigger point injections and that Plaintiff's gait was antalgic and Plaintiff was using a cane for assistance. (R. 1235-36.) Furthermore, as Plaintiff notes, just a week later she was noted to be walking with two canes (R. 1285) and one month later she was noted to be using a cane inside her house and a walker outside of her house (R. 1581). ALJ Brinkley did not explain how he resolved this material ambiguity, see SSR 96-8p, 1996 WL 374184, at *7, and his reliance on the August 28, 2018, treatment note is, at best, misleading.
Similarly, the evidence cited by ALJ Brinkley to support his finding that Plaintiff's statements about the severity of her symptoms are “inconsistent” is suspect. (See Pl.'s Mem. Supp. Mot. J. Pldgs. at 10 (explaining discrepancies and relevancy problems with ALJ Brinkley's citations to R. 777, 830, 1030, 1112, 1236, 1400-01, 1516).) The Fourth Circuit has noted that symptoms of degenerative disc disease and fibromyalgia are expected to wax and wane or otherwise be intermittent, such that relying on isolated instances of normal abilities may not be sufficient to accurately assess the RFC of someone who, like Plaintiff, suffers from such impairments. See Radford, 734 F.3d at 294; Arakas, 983 F.3d at 101.
The undersigned has reviewed each document cited by ALJ Brinkley and discussed by Plaintiff in her brief. The record reflects Plaintiff's characterizations. In the Commissioner's brief, which was submitted well after Plaintiff's, the Commissioner does not address the misrepresentations and discrepancies Plaintiff has identified in ALJ Brinkley's decision. (Def.'s Mem. Supp. Mot. J. Pldgs. at 6-12.)
While ALJ Brinkley's decision issued before Arakas, the Commissioner issued SSR 12-2p, 2012 WL 3104869 (July 25, 2012) (addressing how the Commissioner evaluates fibromyalgia), several years earlier. See Arakas, 983 F.3d at 101-02 (discussing SSR 12-2p).
In sum, ALJ Brinkley applied an incorrect legal framework for assessing Plaintiff's RFC. He did not perform a function-by-assessment of Plaintiff's work abilities, with particular harm being done by his failure to explain his finding that Plaintiff has the ability to stand and walk to the level required by light work. He misrepresented record evidence and provided insufficient explanation as to the RFC assessment so as to permit meaningful review. Far from harmonizing and reconciling conflicting evidence in the record, ALJ Brinkley's decision creates more inconsistency and confusion. Accordingly, remand to the Commissioner is recommended.
B. Plaintiff's Need for a Walker
Plaintiff also contends ALJ Brinkley erred by failing to explain why Plaintiff did not need a walker for ambulation and only needed a cane for prolonged ambulation. Due to ALJ Brinkley's failure to explain the RFC in a way that permits meaningful review, as explained above, Plaintiff is correct. Further analysis of this particular issue is not warranted given the ALJ's more fundamental errors. Any error as to Plaintiff's need for an assistive device is unlikely to be repeated on remand assuming the Commissioner conducts a proper functional assessment of Plaintiff's abilities.
C ONCLUSION
For the reasons stated above, it is RECOMMENDED that Plaintiff's Motion for Judgment on the Pleadings [DE #23] be GRANTED, Defendant's Motion for Judgment on the Pleadings [DE #30] be DENIED, and the Commissioner's decision be remanded for further consideration.
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 15, 2022, 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. (Dec. 2019).
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. Colins, 766 F.2d 841, 846-47 (4th Cir. 1985).