Opinion
No. 7:20-CV-27-M
02-23-2021
WANONIA REEVES POTTER, Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security Administration, Defendant.
MEMORANDUM & RECOMMENDATION
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. Wanonia Reeves Potter ("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"). 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 #21] be granted, Defendant's Motion for Judgment on the Pleadings [DE #23] be denied, and the case be remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings.
STATEMENT OF THE CASE
Plaintiff applied for DIB on April 14, 2016, with an alleged onset date of March 7, 2016. (R. 15, 205-06.) The application was denied initially and upon reconsideration, and a request for hearing was filed. (R. 15, 82, 97, 120-21.) A video hearing was held on December 19, 2018, before Administrative Law Judge ("ALJ") Patricia Melvin, who issued an unfavorable ruling on January 10, 2019. (R. 12-47.) On December 18, 2019, 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. On February 17, 2020, Plaintiff filed the instant civil action, seeking judicial review of the final administrative decision pursuant to 42 U.S.C. § 405.
Plaintiff's complaint [DE #6] states that she also applied for Supplemental Security Income benefits under Title XVI of the Social Security Act. There is no indication of this in the record. --------
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." Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981). "If the Commissioner meets [this] burden, the ALJ finds the claimant not disabled and denies the application for benefits." Mascio v. Colvin, 780 F.3d 632, 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, the ALJ found Plaintiff met the insured status requirements of the Act through December 31, 2020. (R. 17.) At step one, the ALJ found Plaintiff has not engaged in substantial gainful activity since March 7, 2016, the alleged onset date. (Id.) Next, the ALJ determined Plaintiff had the severe impairments of psoriatic arthritis, fibromyalgia, and neuropathy. (R. 18.)
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. 18.) The ALJ expressly considered Listings 11.14 and 14.09, and expressly stated that Plaintiff's fibromyalgia did not meet or medically equal a listing. (R. 19)
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) with exceptions. [Plaintiff] can lift/carry 20 pounds occasionally and 10 pounds frequently, stand/walk 6 hours in an 8-hour day, and sit 6 hours in an 8-hour day. She cannot climb ladders, ropes, or scaffolds, but can occasionally stoop and crouch. She can frequently, but not constantly handle and finger bilaterally. She must avoid concentrated exposure to work at unprotected heights and work with or near hazardous machinery.(R. 19.) In making this assessment, the ALJ stated that she considered Plaintiff's symptoms and the evidence (both "objective medical" and "other") based on the requirements of 20 C.F.R. § 404.1529 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. 19-20.) At step four, the ALJ concluded that Plaintiff is able to perform past relevant work as an accounting clerk. (R. 21.) The ALJ concluded that Plaintiff had not been disabled under the Act since March 7, 2016 Plaintiff's alleged onset date, through the date of the decision. (Id.)
IV. Plaintiff's Arguments
Plaintiff contends the Commissioner erred by:
(A) finding that Plaintiff's osteoarthritis in her hands was non-severe and improperly assessing the severity of Plaintiff's hand pain (Pl.'s Mem. Supp. Mot. J. Pldgs [DE #22] at 8-12); and
(B) "giving credence" to opinions from treating Physicians Assistants who, under applicable regulations, were not considered "acceptable medical sources" (id. at 12-15);
(C) improperly assessing Plaintiff's fibromyalgia and associated pain (id. at 15-17); andThe undersigned agrees that the ALJ improperly evaluated Plaintiff's fibromyalgia and associated symptoms, and, therefore, recommends remand due to that error.
(D) failing to consider Plaintiff's mental impairments of depression and anxiety (id. at 17-18).
A. Fibromyalgia
In addition to the agency guidance in SSR 12-2p, 2012 WL 3104869 (July 25, 2012), the Fourth Circuit recently clarified how an ALJ should evaluate a claimant's fibromyalgia in Arakas v. Comm'r of SSA, 983 F.3d 83 (4th Cir. 2020). As a general matter, the ALJ must conduct a correct symptom evaluation, taking care not to improperly increase a claimant's burden of proof "by effectively requiring her subjective descriptions of her symptoms to be supported by objective medical evidence." Id. at 96 (quoting Lewis v. Berryhill, 858 F.3d 858, 866 (4th Cir. 2017)). This is particularly important in a case involving fibromyalgia because it is a disease that typically "eludes such measurement." Arakas, 983 F.3d at 96 (quoting Green-Younger v. Barnhart, 335 F.3d 99, 108 (2d Cir. 2003)). "ALJs may not rely on objective medical evidence (or the lack thereof)—even as just one of multiple factors—to discount a claimant's subjective complaints regarding symptoms of fibromyalgia . . . ." Arakas, 983 F.3d at 97.
Here, the ALJ found that Plaintiff was severely impaired by fibromyalgia. (R. 18.) As the ALJ noted, an impairment is "severe" within the meaning of the regulations if it significantly limits an individual's ability to perform basic work activities. (R. 16); see also 20 C.F.R. § 404.1520(c). At step three, the ALJ stated simply that Plaintiff's fibromyalgia failed to meet or medically equal the criteria for any listing and that "the objective evidence fails to demonstrate that this condition, viewed alone or in combination with [Plaintiff's] other impairments," meets or equals a listing. (R. 19.) The ALJ did not mention SSR 12-2p, 2012 WL 3104869, which provides guidance as to how the Commissioner evaluates evidence regarding fibromyalgia and how fibromyalgia must be evaluated for purposes of disability benefits review under the Act. Id.
Before making the step-four finding, the ALJ stated that Plaintiff's statements about her symptom severity were "inconsistent with the overall medical records and with a finding of disability." (R. 20.) The ALJ then noted Plaintiff's medical records "generally showed" that Plaintiff had "normal gait, normal fine motor skills, and only mild arthritic changes on x-rays." (Id.) The ALJ also noted that Plaintiff's medical records showed "no joint tenderness." (Id.) The ALJ offered no further analysis, and at no point did she mention, much less discuss, the effects of Plaintiff's fibromyalgia on her functional abilities despite having summarized Plaintiff's subjective statements about her symptoms. (R. 20-21.)
The ALJ's decision contains insufficient explanation to permit meaningful review and appears to be infected by the same error identified by Arakas—reliance on a lack of objective medical evidence to discredit Plaintiff's statements about the severity of her fibromyalgia symptoms. See Arakas, 983 F.3d at 97. In Arakas, the ALJ relied on a lack of objective medical evidence, specifically noting normal examination results of joint range of motion and joint inflammation, to discredit the claimant. Arakas, 983 F.3d at 96. Here, ALJ Melvin's reliance on generally normal clinical findings as to gait, fine motor skills, and arthritic changes is similar to the problem identified in Arakas, and there is no more detailed discussion addressing the "longitudinal record" as to fibromyalgia and the potential "wax[ing] and wan[ing]" of Plaintiff's symptoms. SSR 12-2p, 2012 WL 3104869, at *6. The ALJ's application of an incorrect legal standard and insufficient explanation regarding Plaintiff's fibromyalgia requires remand. See Arakas, 983 F.3d at 96-98.
B. Remaining Arguments
Plaintiff's remaining arguments address issues that are not likely to occur on remand. Plaintiff's second assignment of error is that the ALJ failed to explain a physician assistant's opinions in accordance with applicable regulations. Plaintiff further contends the ALJ failed to consider and discuss all of Plaintiff's medically determinable impairments, including her physical and mental impairments found to be non-severe. On remand, it will be incumbent on the Commissioner to consider all of the evidence before him and to explain his findings as to the weight afforded the evidence in accordance with the applicable regulations. As the findings on remand may be substantially different, the undersigned does not address Plaintiff's remaining arguments.
CONCLUSION
For the reasons stated above, it is RECOMMENDED that Plaintiff's Motion for Judgment on the Pleadings [DE #21] be GRANTED, Defendant's Motion for Judgment on the Pleadings [DE #23] 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 March 9, 2021, 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. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).
This 23rd day of February 2021.
/s/_________
KIMBERLY A. SWANK
United States Magistrate Judge