Opinion
No. 7:17-CV-00238-FL
01-28-2019
Carolyn Dixon Pickett, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner for Operations, Defendant.
Memorandum & Recommendation
Plaintiff Carolyn Pickett instituted this action in December 2017 to challenge the denial of her application for social security income. Pickett claims that the Administrative Law Judge ("ALJ") Edward T. Morriss erred in (1) determining her residual functional capacity ("RFC"), (2) failing to assign weight to a previous disability finding, and (3) failing to obtain vocational evidence. Both Pickett and Defendant Nancy A. Berryhill, Acting Commissioner of Social Security, have filed motions seeking a judgment on the pleadings in their favor. D.E. 18, 20.
After reviewing the parties' arguments, the court has determined that ALJ Morriss erred in his determination. ALJ Morriss properly determined Pickett's RFC and, in doing so, considered all of her exertional and non-exertional impairments. But the undersigned cannot conclude that substantial evidence supports his step four finding given both the previous disability determination and the lack of vocational evidence on her previous work. Therefore, the undersigned magistrate judge recommends that the court grant Pickett's motion, deny the Commissioner's motion, and remand this 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
In April 2014, Pickett applied for disability income, alleging a disability that began in September 2005. After her claim was denied at the initial level and upon reconsideration, Pickett appeared before ALJ Morriss for a hearing to determine whether she was entitled to benefits. ALJ Morriss determined Pickett was not entitled to benefits because she was not disabled. Tr. at 29-35.
Pickett later amended her onset date to October 2010. Tr. at 29.
ALJ Morriss found that Pickett had severe impairments of degenerative disc disease and degenerative joint disease of the left knee. Tr. at 31. ALJ Morriss also found that Pickett's impairments, either alone or in combination, did not meet or equal a Listing impairment. Id.
ALJ Morriss then determined that Pickett had the RFC to perform a full range of light work. Tr. at 32. ALJ Morriss concluded that Pickett was capable of performing her past relevant work as a machine feeder. Tr. at 35. Thus, ALJ Morriss found that Pickett was not disabled. Id.
After unsuccessfully seeking review by the Appeals Council, Pickett began this action in December 2017. D.E. 6.
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. But 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
Pickett has a history of back and knee problems. She first injured her back in 2005 while working. Tr. at 45. Dr. Naseem Nasrallah treated her for back pain, knee pain, and muscle spasms, and prescribed medications. Tr. at 219-20. After Dr. Nasrallah's retirement, Dr. Linda Greenspan provided primary care to Pickett. Tr. at 204.
In September 2009, an examination of Pickett showed that her muscle tone, muscle strength, tendon reflexes, and joint function were all normal. Tr. at 34. A July 2010 examination noted a bony deformity in Pickett's left knee with crepitus and pain with movement. Tr. at 71. Mild edema was present in her lower extremities. Tr. at 34. Pickett took medication for her back pain, which was described as stable. Id.
In November 2010, an examination noted mild knee swelling and crepitus but good pedal pulses bilaterally. Id. Pain caused Pickett a decreased range of motion. Id.
Four months later, an examination found tenderness in the lumbar paraspinal muscles and SI joints, and pain with flexation and extension. Tr. at 71. An MRI taken at that time showed lumbar spondylosis at L3-4 and L4-5. Id.
In July 2012, Pickett reported worsening knee pain. Tr. at 34. Although she displayed good strength and tone, Pickett had a decreased range of motion, mild swelling, and tenderness. Id. An x-ray taken the next month showed mild osteoarthritis without effusion. Id.
After being approved for Medicaid in 2014, Pickett saw Dr. Harry Stafford, who prescribed a knee brace for her. Tr. at 47, 56. In 2016, Pickett underwent bilateral knee replacement surgery. D.E. 19-3. She uses a cane for support, although providers did not prescribe it. Tr. at 33.
This occurred after Pickett's date last insured, December 31, 2010.
Pickett testified that she has difficulty stooping and rising from a seated position and she walks at a slower pace. Tr. at 47, 49. She stated her medications cause side effects including drowsiness. Tr. at 54. Pickett cannot make her own meals and relies on her church to bring her food. Tr. at 55. Pickett can grocery shop, bathe, and make her bed. Tr. at 33.
D. Residual Functional Capacity
Pickett contends that ALJ Morriss failed to address her non-exertional impairments. The Commissioner contends, and the undersigned agrees, that ALJ Morriss's RFC determination reflects all of Pickett's well-supported limitations.
The RFC is a determination, based on all the relevant medical and non-medical evidence, of what a claimant can still do despite her impairments; the assessment of a claimant's RFC is the responsibility of the ALJ. See 20 C.F.R. §§ 404.1520, 404.1545, 404.1546; Social Security Ruling ("SSR") 96-8p, 1996 WL 374184, at *2. If more than one impairment is present, the ALJ must consider all medically determinable impairments, including medically determinable impairments that are not "severe," when determining the claimant's RFC. Id. §§ 404.1545(a), 416.945(a). The ALJ must also consider the combined effect of all impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity. Id. § 404.1523; see Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989) ("[I]n evaluating the effect[] of various impairments upon a disability benefit claimant, the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them.").
The ALJ must provide "findings and determinations sufficiently articulated to permit meaningful judicial review." DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983); see also Wyatt v. Bowen, 887 F.2d 1082, 1989 WL 117940, at *4 (4th Cir. 1989) (per curiam). The ALJ's RFC determination "must include 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)." Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting SSR 96-8p). Furthermore, "[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." Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013). Fourth Circuit precedent "makes it clear that it is not [the court's] role to speculate as to how the ALJ applied the law to [her] findings or to hypothesize the ALJ's justifications that would perhaps find support in the record. Fox v. Colvin, 632 F. App'x 750, 755 (4th Cir. 2015).
Social Security Ruling 96-8p explains how adjudicators should assess residual functional capacity. The Ruling instructs that the 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. "Only after that may [residual functional capacity] be expressed in terms of the exertional levels of work, sedentary, light, medium, heavy, and very heavy." SSR 96-8p. The Ruling further explains that the residual functional capacity "assessment must include 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.
There is no "per se rule requiring remand when the ALJ does not perform an explicit function-by-function analysis[.]" Mascio, 780 F.3d at 636. But "[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. (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)). The function-by-function requirement can be satisfied by reference to a properly-conducted analysis by a state agency consultant. See, e.g., Linares v. Colvin, No. 5:14-CV-00129, 2015 WL 4389533, at *3 (W.D.N.C. July 17, 2015) ("Because the ALJ based his RFC finding, in part, on the function-by-function analysis of the State agency consultant, the ALJ's function-by-function analysis complied with [Soc. Sec. Ruling] 96-8p." (citing Lemken v. Astrue, No. 5:07-cv-33-RLV-DCK, 2010 WL 5057130, at *8 (W.D.N.C. July 26, 2010))).
As noted above, ALJ Morris found that Pickett could perform a full range of light work. Tr. at 32. Pickett contends, however, that the RFC determination fails to reflect her non-exertional impairments such as her difficulty stooping, bending, and twisting, limited range of motion, drowsiness from her medications, and her need for breaks to rest.
But, as noted in ALJ Morriss's decision, Pickett's statements about the intensity, persistence, or limiting effects of her symptoms were not fully credible. Tr. at 33. He found her statements were not entirely consistent with the evidence. Id. For example, Pickett claimed her medications caused side effects but office treatment notes did not corroborate these allegations. Tr. at 34. She walked with a cane but no medical provider prescribed it and it was not medically necessary. Id. Although she claimed severe limitations arising from her back and knee pain, Pickett's treatment during the relevant period was limited. And no physician specifically restricted Pickett's activities. Id.
In determining her RFC, ALJ Morriss discussed Pickett's testimony, impairments, and treatment history. Tr. at 32-35. He concluded that she could perform light work. Although Pickett alleged additional restrictions including fatigue and difficulty with postural movements, ALJ Morriss found these limitations were unsupported by the evidence. While objective evidence showed she suffered from impairments, which could cause some symptoms she alleged, the record failed to support a more restrictive RFC. So he did not include additional limitations in his RFC determination.
Having failed to show error in ALJ Morriss's RFC determination, the undersigned recommends that the court reject Pickett's argument on this issue.
E. Prior Decision
Pickett next asserts that ALJ Morris's erred in failing to explain or adopt a prior disability determination's finding that she was unable to return to her past work. The Commissioner contends any error in failing to explicitly weigh this evidence is harmless because it would not alter the outcome of ALJ Morriss's disability decision. The undersigned finds that ALJ Morriss should have weighed the prior disability decision and this error could influence the disability decision.
The SSA issued Acquiescence Ruling 00-1(4), 65 FR 1936-01 (Jan. 12, 2000), which addressed a Fourth Circuit case, Albright v. Comm'r of Soc. Sec. Admin., and the consideration of prior agency decisions:
[W]here a final decision of SSA after a hearing on a prior disability claim contains a finding required at a step in the sequential evaluation process for determining disability, SSA must consider such finding as evidence and give it appropriate weight in light of all relevant facts and circumstances when adjudicating a subsequent disability claim involving an unadjudicated period.AR 00-1(4); Albright, 174 F.3d 473 (4th Cir. 1999). In determining whether to consider a prior finding as evidence, AR 00-1(4) addresses how adjudicators of later claims should consider findings made in earlier claims and the appropriate weight to be given the previous findings in light of the facts and relevant circumstances. It directs an ALJ to look to:
(1) whether the fact on which the prior finding was based is subject to change with the passage of time, such as a fact relating to the severity of a claimant's medical condition; (2) the likelihood of such a change, considering the length of time that has elapsed between the period previously adjudicated in the subsequent claim; and (3) the extent that evidence not considered in the final decision on the prior claim provides a basis for making a different finding with respect to the period being adjudicated in the subsequent claim.Id. An ALJ need not walk through each factor in order to comply with AR 00-1(4). Reviewing and evaluating all the evidence presented at the correct standard complies with the acquiescence ruling. See Melvin v. Astrue, 602 F. Supp. 2d 694, 702 (E.D.N.C. 2009) ("Although the ALJ did not specifically refer to AR 00-1(4) . . . or explain the precise weight he gave to the [prior ALJ's findings], the ALJ did consider the prior ALJ's findings as part of reviewing the record . . . In doing so, the ALJ complied with AR 00-1(4). The ALJ also complied with . . . Albright.").
Courts within the Fourth Circuit have generally found remand appropriate under AR 00-1(4) where an ALJ neglects to discuss a prior decision at the administrative hearing level, and the prior decision contains findings more favorable to the claimant than the ALJ's subsequent decision. See Barbee v. Colvin, No. 5:14-CV-424, 2015 WL 5039124, at *8-9 (E.D.N.C. Aug. 7, 2015) (recommending remand where ALJ's RFC finding did not include sit/stand option that was contained in past decision and ALJ failed to discuss past decision), adopted by 2015 WL 5054402 (E.D.N.C. Aug. 26, 2015); Bennett v. Comm'r of Soc. Sec. Admin., No. 5:14-CV-100, 2015 WL 1280959, at *3, *13-15 (N.D.W. Va. Mar. 20, 2015) (remanding where ALJ failed to discuss step two findings in prior decision and ALJ found fewer severe impairments at step two in later decision); Neal v. Astrue, No. 5:08-CV-1296, 2010 WL 1404096, at *7 (S.D.W. Va. Mar. 31, 2010) (remanding where ALJ's recent decision limited claimant to light work, but prior decision limited claimant to sedentary work, and ALJ failed to conduct analysis required by AR 00-1(4)); Dozier v. Astrue, No. 5:08-CV-174, 2009 WL 3063020, at *2, *45 (N.D.W. Va. Sept. 22, 2009) (remanding where ALJ cursorily mentioned previous finding of disability and failed to indicate weight assigned to that decision).
And courts within this circuit have held that Albright and AR 00-1(4) support remand where an ALJ offers no explanation why his step four finding deviated from a previous determination. Manuel v. Colvin, No. 1:11-CV-8, 2015 WL 519481, at *5-6 (M.D.N.C. Feb. 9, 2015) (recommending remand where ALJ neglected to consider favorable step four finding in past decision and stating that court could not meaningfully review ALJ's decision because ALJ failed to discuss past decision); Carter v. Astrue, No. CBD-11-2980, 2013 WL 4461579, at *7 (D. Md. Aug. 19, 2013) (remanding because of ALJ's failure to explain how plaintiff's medical condition had improved so that it warranted a finding that she could do past relevant work despite a prior ALJ decision to the contrary).
In 2008, a determination of Pickett's previous disability application found she was not disabled. D.E. 19-1. In reaching that conclusion, the ALJ found that Pickett could perform a full range of light work. Id. at 7. It found, however, that she could not perform her past work. Id. at 10.
The prior disability determination was not made part of the administrative record here. And ALJ Morriss's decision does not discuss the prior determination nor assign weight to it.
The Commissioner points out that ALJ Morriss referenced the prior decision during the hearing. Tr. at 61. The discussion was limited to ALJ Morriss's statement that the previous ALJ determined that Pickett had an RFC for light work and that determination was not overturned on appeal. Id.
The Commissioner contends ALJ Morriss's omission is harmless error because the prior decision is remote in time—two years—to the relevant period here. She argues that the probative value of the prior decision has diminished given this passage in time. And the Commissioner maintains that Albright and Lively direct that, absent an explanation, a later determination may not increase a claimant's RFC when a short amount of time has elapsed. Because Pickett's RFC remained the same between the two disability decisions, the Commissioner asserts that the Albright and Lively holdings are not implicated here.
The Commissioner's arguments on this issue are unpersuasive. Case law makes it clear that an ALJ must consider and weigh prior determinations. Acquiescence Ruling 00-1(4) states that less weight may be given to a prior finding "as the proximity of the period previously adjudicated to the period being adjudicated in the subsequent claim becomes more remote, e.g., where the relevant time period exceeds three years as in Albright." AR 00-1(4), 2000 WL 43774, at *4. Because only two years passed since the prior determination and the period at issue before ALJ Morriss, the time elapsed does not support the Commissioner's position here.
Moreover if, as the Commissioner contends, ALJ Morris had a right to find the prior decision less probative to the relevant period at issue before him because of the passage of time, it is for him to identify that reason, or any other reason, he departed from the earlier findings. This is especially true when no evidence suggests Pickett's condition improved in the interim period. And given that both decisions identified the same severe impairments—degenerative disc disease and degenerative joint disease—it is not unreasonable to infer that these progressive conditions would not improve over time.
The Commissioner attempts to rescue the oversight of the prior decision by arguing that substantial evidence supports ALJ Morriss's step four finding. For example, the evidence shows that before her onset date, an examination noted generally normal findings and described her pain as stable; Pickett had only mild swelling in November 2010; she pursued limited treatment for her back and knee pain during the relevant period; no evidence supports that her use of a cane is required; and no physician ascribed specific functional limitations. The Commissioner also notes that there is a discrepancy between Pickett's allegations on the severity of her pain and the actual treatment she sought for it. This evidence, the Commissioner posits, supports a finding that Pickett can return to her past work.
But as is explained more fully below, the identification of Pickett's prior work is flawed or, at a minimum, cannot be affirmed given the lack of supporting evidence before the court. As Pickett notes, a determination that she was unable to return to work would direct a finding of "disabled" under the Grids. So contrary to the Commissioner's position, the error at step four is not harmless but prejudicial to Pickett's claim.
Because ALJ Morriss failed to discuss and weigh the prior determination or to explain why his step four finding departed from the conclusion made in the previous decision, the court cannot conduct a meaningful review. See Barbee, No. 2015 WL 5039124, at *8. This warrants remand for further consideration of this issue.
F. Step Four
Pickett next argues that ALJ Morriss erred in failing to obtain vocational evidence about her past work. Because ALJ Morriss decided the case at step four, the Commissioner asserts that no vocational evidence was required. The undersigned cannot find that substantial evidence supports the identification of Pickett's past work and its associated tasks. So this matter warrants additional consideration and should be remanded.
As noted above, while a claimant has the burden at steps one through four, it is the Commissioner's burden at step five to show that work the claimant can perform is available. Pass, 65 F.3d at 1203 (citing Hunter v. Sullivan, 993 F.2d 21, 35 (4th Cir. 1992)). "The Commissioner may meet this burden by relying on the Medical-Vocational Guidelines (Grids) or by calling a vocational expert [("VE")] to testify." Aistrop v. Barnhart, 36 F. App'x 145, 146 (4th Cir. 2002) (citing 20 C.F.R. § 404.1566)). The Grids are published tables that take administrative notice of the number of unskilled jobs at each exertional level in the national economy. 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00(a).
When a claimant suffers solely from exertional impairments, the Grids may satisfy the Commissioner's burden of coming forward with evidence on the availability of jobs the claimant can perform. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983). When a claimant (1) suffers from a non-exertional impairment that restricts his ability to perform work of which he is exertionally capable, or (2) suffers an exertional impairment which restricts him from performing the full range of activity covered by a work category, the ALJ may not rely on the Grids and must produce specific vocational evidence showing that the national economy offers employment opportunities to the claimant. See Walker, 889 F.2d at 49; Hammond v. Heckler, 765 F.2d 424, 425-26 (4th Cir. 1985); Cook v. Chater, 901 F. Supp. 971 (D. Md. 1995); 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 201.00(h).
ALJ Morriss categorized Pickett's past work as a machine feeder. Tr. at 35. He concluded that she was capable of performing that work. Id. ALJ Morriss's decision does not identify this position with the corresponding Dictionary of Occupational Titles ("DOT") code. But the state agency reviewer identified Pickett's past work as "machine operator" with the corresponding DOT title of "machine feeder" and DOT code 525.686-018. Tr. at 85.
There are several problems with this categorization. The DOT code identified—525.686-018—is titled "Head-Machine Feeder (meat products)." The DOT description of this work describes pulling snouts and jawbones from hog heads, splitting heads, cutting jawbones, and trimming cheek meat. See DOT 525.686-018.
Yet Pickett identified her past work as a position at a bacon plant. Tr. at 44. She contends that the DOT description identified does not reflect this work because bacon does not come from hogs' heads.
At the hearing, no evidence was elicited from Pickett about the demands and duties of this past work. And Pickett's work history report described her position as requiring operating machines to complete customer orders and training new hires. Tr. at 213. She lifted boxes and card inserts. Id. She did not state she worked cutting, trimming, or splitting hogs' heads, snouts, jawbones, or cheeks.
Moreover, the prior disability determination, which again also determined that Pickett's RFC was a full range of light work, concluded she could not return to her past relevant work. D.E. 19-1 at 7, 10. The prior decision did not identify Pickett's prior work by occupational title or DOT code. But there is no explanation for the divergence between the step four findings of the prior and present disability determinations.
Pickett points out, if ALJ Morriss's step four finding were different and she was found unable to return to her past relevant work, the Grids would direct a finding of "disabled." As a result, any error at step four would appear to be crucial to her application.
It may well be that the DOT code identified by the state agency reviewer is the most appropriate classification of Pickett's past work in a bacon factory. But that is not evident from a comparison of the DOT listing to Pickett's work description. The dearth of vocational evidence on Pickett's past work leaves a reviewing court unable to determine whether the classification is proper and supported by substantial Thus, this issue warrants remand.
The DOT identifies another position, machine feeder (any industry) with code 699.686-010. That work, however, involves medium exertion and thus would to fall outside Pickett's RFC. Pickett's past employment also included work as a certified nursing assistant. Tr. at 45. A corresponding DOT code appears to be 355.674-104. But that work, too, is classified as medium in exertion and would thus fall outside the parameters of Pickett's RFC.
III. Conclusion
For the forgoing reasons, the undersigned recommends that the court grant Pickett's Motion for Judgment on the Pleadings (D.E. 18), deny Berryhill's Motion for Judgment on the Pleadings (D.E. 20), and remand this matter to the Commissioner for further consideration.
The Clerk of Court must serve a copy of this Memorandum and Recommendation ("M&R") on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals. Dated: January 28, 2019.
/s/_________
ROBERT T. NUMBERS, II
UNITED STATES MAGISTRATE JUDGE