Opinion
2:21-CV-46-FL
01-18-2023
JEFFREY NEWSOME, Plaintiff/Claimant, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
Robert B. Jones, Jr. United States Magistrate Judge
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 Jeffrey Newsome (“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. Plaintiff filed a response to Defendant's motion, [DE-23], the time for further 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 denied, Defendant's Motion for Judgment on the Pleadings be allowed, and the final decision of the Commissioner be affirmed.
I. STATEMENT OF THE CASE
Claimant protectively filed applications for a period of disability and DIB and for SSI on December 1, 2014, alleging disability beginning July 1, 2012. (R. 273-85). Both claims were denied initially and upon reconsideration. (R. 61-104). A hearing before the Administrative Law Judge (“ALJ”) was held on August 31, 2017, at which Claimant, represented by counsel, and a vocational expert (“VE”) appeared and testified. (R. 29-60). On September 28, 2017, the ALJ issued a decision denying Claimant's request for benefits. (R. 12-28). On August 13, 2018, the Appeals Council denied Claimant's request for review. (R. 1-6).
On October 10, 2018, Claimant filed a complaint in this court challenging the Commissioner's final decision denying his claims. (R. 764-65). On April 23, 2019, the court granted the Commissioner's consent motion to remand the case for further proceedings. (R. 769). On November 13,2019, the Appeals Council remanded the case to an ALJ to issue a new decision. (R. 778-80). A second administrative hearing was held by a different ALJ on September 29, 2020, at which Claimant, represented by counsel, and a vocational expert (“VE”) appeared and testified. (R. 699-743). On October 14, 2020, the ALJ issued a decision denying Claimant's request for benefits. (R. 657-79). The Appeals Council did not assume jurisdiction, (R. 646-52), and Claimant then filed a complaint in this court seeking review of the now-final administrative decision.
IL 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 2 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): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing 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 adequately evaluate the need to elevate his lower extremities during the day due to edema, and the ALJ's appointment violates the Appointments Clause. Pl.'s Mem. [DE-16] at 9-14.
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 July 1,2012, the alleged onset date. (R. 663). Next, the AL J determined Claimant had the severe impairments of degenerative disc disease, dysfunction of a major joint, and obesity. Id. However, at step three, the ALJ concluded these 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. 663-65).
Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding Claimant had the ability to perform light work with the following limitations:
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).
[C]laimant can lift, carry, push, and/or pull 20 pounds occasionally and 10 pounds
frequently. He can sit for six hours in an eight-hour workday. He can stand and/or walk for six hours in an eight-hour workday. The claimant can frequently reach overhead bilaterally. For all other reaching, he can frequently reach to the right. He can occasionally climb ramps and stairs but never climb ladders, ropes, or scaffolds. The claimant can occasionally stoop, kneel, and crouch. He can have occasional exposure to unprotected heights and moving mechanical parts.(R. 665-70). In making this assessment, the ALJ found Claimant's statements about his limitations not entirely consistent with the medical and other evidence of record. (R. 667). At step four, the ALJ concluded Claimant was capable of performing his past relevant work as a crew operator. (R. 670-71). Alternatively, at step five, upon considering Claimant's age, education, work experience, and RFC, the ALJ determined Claimant is capable of adjusting to the demands of other employment opportunities that exist in significant numbers in the national economy. (R. 671-72).
V. DISCUSSION
A. Claimant's Need to Elevate his Legs
Claimant contends that he suffers from lumbar degenerative disc disease with radiculopathy, hypertension, bouts of cellulitis, and recurrent edema in his lower extremities that make standing and walking painful and requires him to elevate his legs during the day. Pl.'s Mem. [DE-16] at 9. Claimant contends the ALJ erred by failing to adequately evaluate the need to elevate his legs and by failing to provide an accommodation in the RFC. Id. at 10-12. Defendant contends the ALJ properly considered Claimant's alleged need to elevate his legs and gave sufficient reasons for not including an accommodation in the RFC. Def.'s Mem. [DE-22] at 20-22.
The 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. “[T]he residual functional capacity ‘assessment must 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.” Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting S.S.R. 96-8p). The ALJ must provide “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”).
In formulating Claimant's RFC, the ALJ acknowledged Claimant's testimony that beginning in about 2013, he had to elevate his legs above his heart for an hour or two about three times a day and, at the time of the hearing in September 2020, he was elevating his legs all day. (R. 666, 716). In discussing Claimant's hypertension, the ALJ addressed Claimant's testimony regarding the need to elevate his legs:
After an absence from care, the claimant had blood pressure of 160/100 in November 2013 and 3+ pitting edema for which he was restarted on his medication. However, he missed his follow up appointment and did not seek treatment again for over seven months and only after he allowed himself to run out of his blood pressure medication for a week. His blood pressure was 154/90 mmHg and caused lower extremity edema with only a mild headache. Andrea Neff, physician assistant, encouraged the claimant to exercise and increase his water intake. The following month, the claimant's blood pressure improved to 142/80 mmHg with only slight edema remaining in his legs and feet. Although the claimant testified he required his feet to be elevated a minimum of three hours, Ms. Neff advised him to keep his feet elevated when sitting for a prolonged period, but counseled him on the need to walk and stand regularly to prevent any clots. (Exhibit B2F). Thereafter, the claimant's hypertension was controlled as long as he was consistent with taking his medication. (Exhibits B1F, B5F). When he failed to seek regular care, he experienced elevated blood pressure but reported no other symptoms generally associated with hypertension. (Exhibits B9F, Bl OF).(R. 669) (emphasis added). Thus, the ALJ found the need to elevate the legs was a temporary limitation associated with hypertension-related edema that was controlled with medication. Claimant asserts, however, that the record reflects he struggled with edema at numerous medical treatment visits from 2013 through 2019, and he was directed on multiple occasions to elevate his legs. Pl.'s Mem. [DE-16] at 10. A review of the records cited by Claimant supports the ALJ's conclusion that the recommendation that Claimant elevate his legs was temporary due to increased edema from uncontrolled hypertension and cellulitis.
On December 22, 2011, Claimant presented for back pain, exhibited edema, and was prescribed a muscle relaxer for spasms, pain medication, and prednisone. (R. 410).
On November 5, 2013, Claimant sought to reestablish care for hypertension, bilateral edema was noted in the legs, and medication was prescribed. (R. 408-09).
On June 25, 2014, Claimant presented to triage with complaints of edema in his bilateral lower extremities for four days, he had been out of his high blood pressure medication for one week, and his medication was refilled. (R. 407). At an appointment the following day, Claimant reported his legs feeling tight and painful with weight bearing, he was positive for bilateral edema in the legs, the week prior he had ridden on a bus for fifteen hours, he had been off his blood pressure medication for a week, he did not exercise or drink enough water, and he monitored his diet and salt intake. (R. 406). Claimant was encouraged to begin an exercise regimen, increase his water intake, and elevate his legs to improve circulation. (R. 407). He was also given information about diet, his medication regimen was discussed, and he was directed to return to the clinic if his edema persisted or worsened. (R. 407).
On July 16, 2014, Claimant returned to the clinic with bilateral edema and pain from his knees to legs, he denied sores but some were noted by triage, his pain was worse when walking and radiated from his buttocks down the back of his legs, and he experienced worsening itching, warmth, and swelling over the prior week. (R. 404). Claimant was keeping his feet elevated when seated and drinking more water. Id. On examination, Claimant demonstrated slight edema to his feet bilaterally, and some edema to his right lower extremity. (R. 405). Claimant was evaluated for deep vein thrombosis (“DVT”) and tested negative, so he was treated with Bactrim for cellulitis and with Norco for pain, and he was directed to ice the affected area throughout the day. (R. 40506). At a July 22, follow up appointment, Claimant reported the swelling and pain had improved some but he continued to itch, there was no pain or swelling in the right leg, and he was taking the Bactrim as directed and keeping his legs elevated as he was able. (R. 403). Claimant demonstrated no right leg edema and some edema to the left ankle and foot on examination. Id. PA-C Neff determined Claimant's symptoms were improving some with the antibiotic and treatment for cellulitis would be continued given the negative DVT test. (R. 404). A prednisone taper and a temporary increase in Claimant's Lasix dosage was added to his medication regimen, he was encouraged to keep his feet elevated when sitting for long periods and to engage in regular walking and standing for blood clot prevention, and he was referred to the wound clinic for compression therapy evaluation. Id.
Claimant was subsequently arrested, and a September 5, 2014 initial health assessment indicated Claimant had bilateral edema in his ankles but did not note the severity of the edema. (R. 379). Claimant's September 23, 2014 appointment with PA-C Neff was cancelled because he remained incarcerated. (R. 402). Claimant saw PA-C Neff again on December 4, 2014, with complaints of pain and bilateral leg and knee swelling and he had not taken his blood pressure medication or Lasix for three days since being released from jail. (R. 400). On examination, Claimant exhibited no edema, and it was noted that the physical findings did not match his symptoms. (R. 401). PA-C Neff also noted that Claimant stated he had reapplied for disability, and Neff suspected that was “likely the reason for the visit today and possibly exaggerated complaints.” (R. 402). A series of exercises were given and heavy lifting or standing was discouraged. Id.
On February 9,2015, Claimant was seen by Dr. Gilberto with a painful knot on his buttocks and a long history of generalized joint pain, and it was noted he was applying for disability and needed a letter for a child support exemption because he could not work. (R. 530). On examination he exhibited no edema and was assessed with cellulitis of the buttocks. (R. 531).
On February 18,2017, Claimant presented to the emergency department for worsening low back pain onset the day prior. (R. 620). He reported bilateral leg swelling that was a recurrent problem, and examination revealed 2+ edema of the bilateral lower extremities, greater in the left. (R. 621-22). Claimant was treated for pain and muscle spasms with medication. (R. 625).
On November 14, 2019, Claimant again presented to the emergency department for back, shoulder, hip, knee, and leg pain, and on examination he demonstrated 1+ pitting edema in both lower legs. (R. 683, 685). Claimant was noted to be developing degenerative disc disease, given a prescription for Mobic, and directed to follow up with primary care. (R. 687).
These records demonstrate that while Claimant demonstrated some edema on occasion throughout the treatment records, on several other occasions edema was absent, (R. 401,462,484, 507, 531,574, 598), and he was only directed to elevate his legs in connection with his more severe lower extremity swelling in June and July of 2014, after being off his blood pressure medication and then being diagnosed with cellulitis, which resolved with mediation, (R. 403-07). The ALJ discussed Claimant's testimony regarding the need to elevate his legs and PA-C Neff's recommendation that he elevate his legs when sitting for prolonged periods in the context of discussing Claimant's hypertension, and then noted that Claimant's hypertension was controlled as long as he was consistent with taking his medication. (R. 669). The ALJ's explanation is sufficient for the court to trace the ALJ's reasoning in not including a limitation to elevating Claimant's legs in the RFC, and there is no need to engage in post hoc rationalization to justify the ALJ's decision, as Claimant suggests, Pl.'s Reply [DE-23] at 1-3. It is clear from the records cited by the ALJ that PA-C Neff's recommendation that Claimant elevate his legs was associated with a temporary exacerbation of his hypertension and a bout of cellulitis, and on other occasions when edema was noted it was not as severe and there was no other recommendation that Claimant elevate his legs. See Hope v. Kijakazi,No. l:20CV1146,2022 WL 463241, at *7 (M.D. N.C. Feb. 15,2022) (finding the ALJ did not err in failing to account for the plaintiff's need to elevate his legs to reduce edema where nothing in the treatment notes indicated the plaintiff's treatment provider intended leg elevation to be a full-time, long-term directive, and the treatment records reflect that the recommended leg elevation was when the plaintiff had increased symptoms that were addressed with medication), recommendation adopted, Judgment [DE-20] (M.D. N.C. Mar. 2, 2022).
The ALJ's discussion regarding Claimant's asserted need to elevate his legs was not lengthy, but it was sufficient for the court to trace the ALJ's reasoning, which is supported by substantial evidence in the record. See Keene v. Berryhill, 732 Fed.Appx. 174, 177 (4th Cir. 2018) (finding no error where the ALJ's justification, “albeit somewhat sparse,” was sufficient to demonstrate the ALJ performed an adequate review of the whole record and that the decision is supported by substantial evidence). Accordingly, the ALJ adequately considered Claimant's asserted need to elevate his legs and did not err in failing to include such a limitation in the RFC.
B. The Appointments Clause
Claimant contends the ALJ's appointment violated the Appointments Clause because Nancy Berryhill, the previous Acting Director of the SSA who ratified the ALJ's appointment on July 16, 2018, was no longer Acting Director at that time under the Federal Vacancies Reform Act (“FVRA”), 5 U.S.C. § 3346(a)(1). Pl.'s Mem. [DE-16] at 13-14.
Claimant's argument fails because when Andrew Saul was nominated to serve as Commissioner in April 2018, Berryhill became eligible again to serve as Acting Commissioner under the FVRA's spring-back provision. See Wynn v. Kijakazi, No. 5:21-CV-00158-FL, 2022 WL 10862338, at *8 (E.D. N.C. July 20, 2022) (“[A]ny expiration in Berryhill's eligibility to serve as Acting Commissioner no longer applied when the President nominated Andrew Saul as Commissioner in April 2018. At this point, Berryhill once again became eligible to serve as Acting Commissioner under the FVRA's spring-back provision.”) (citing Chuenanan v. Comm 'r of Soc. Sec., No. 1:21-CV-86-RJC, 2022 WL 1416421, at *2 n.l (W.D. N.C. May 4, 2022); Thomas S. v. Comm'r of Soc. Sec.,No. C21-05213-MAT, 2022 WL 268844, at *3 (W.D. Wash. Jan. 28, 2022) (citing 5 U.S.C. § 3346(a)(2) (once a first or second nomination for the office is submitted to the Senate, an acting officer may serve from the date of such nomination for the period the nomination is pending in the Senate) and 23 O.L.C. 60, 68 (1999) (“The Vacancies Reform Act incorporates a spring-back provision, which permits the acting officer to begin performing the functions and duties of the vacant office again upon the submission of a nomination, even if the 210-day period expired before that nomination was submitted.”))). Accordingly, Berryhill was Acting Commissioner when she ratified the ALJ's appointment, and the appointment did not violate the Appointments Clause.
VI. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Claimant's Motion for Judgment on the Pleadings, [DE-15], be DENIED, Defendant's Motion for Judgment on the Pleadings, [DE 21], be ALLOWED, and the final decision of the Commissioner be AFFIRMED.
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 1,2023 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 by 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).