Opinion
C/A No. 0:16-2109-RMG-PJG
07-19-2017
Jodi Quick, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
This social security matter is before the court for a Report and Recommendation pursuant to Local Civil Rule 83.VII.02 (D.S.C.). The plaintiff, Jodi Quick, brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the defendant, Acting Commissioner of Social Security ("Commissioner"), denying her claims for Disability Insurance Benefits ("DIB"). Having carefully considered the parties' submissions and the applicable law, the court concludes that the Commissioner's decision should be reversed and the case remanded.
SOCIAL SECURITY DISABILITY GENERALLY
Under 42 U.S.C. § 423(d)(1)(A) and (d)(5), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. § 404.1505(a); see also Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1973). The regulations require the Administrative Law Judge ("ALJ") to consider, in sequence:
(1) whether the claimant is engaged in substantial gainful activity;20 C.F.R. § 404.1520(a)(4). If the ALJ can make a determination that a claimant is or is not disabled at any point in this process, review does not proceed to the next step. Id.
(2) whether the claimant has a "severe" impairment;
(3) whether the claimant has an impairment that meets or equals the requirements of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("the Listings"), and is thus presumptively disabled;
(4) whether the claimant can perform her past relevant work; and
(5) whether the claimant's impairments prevent her from doing any other kind of work.
The court observes that effective August 24, 2012, ALJs may engage in an expedited process which permits the ALJs to bypass the fourth step of the sequential process under certain circumstances. 20 C.F.R. § 404.1520(h).
Under this analysis, a claimant has the initial burden of showing that she is unable to return to her past relevant work because of her impairments. Once the claimant establishes a prima facie case of disability, the burden shifts to the Commissioner. To satisfy this burden, the Commissioner must establish that the claimant has the residual functional capacity, considering the claimant's age, education, work experience, and impairments, to perform alternative jobs that exist in the national economy. 42 U.S.C. § 423(d)(2)(A); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir. 1980). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983).
ADMINISTRATIVE PROCEEDINGS
In January 2014, Quick applied for DIB, alleging disability beginning September 15, 2013. Quick's application was denied initially and upon reconsideration, and she requested a hearing before an ALJ. A hearing was held on October 29, 2015, at which Quick appeared and testified, and was represented by Caroline Meng, Esquire. The ALJ issued a decision on January 8, 2016 finding that Quick was not disabled. (Tr. 25-34.)
Quick was born in 1969 and was forty-four years old on her disability onset date. (Tr. 33.) She has a high school education and obtained a real estate license, and has past relevant work experience as an office manager, a researcher, and a real estate manager. (Tr. 192-193.) Quick alleged disability due to severe fatigue, severe joint pain, migraines, mental confusion, abdominal pain, body tenderness, trouble walking, hip pain, back pain, and a mass under her right arm. (Tr. 191.)
In applying the five-step sequential process, the ALJ found that Quick had not engaged in substantial gainful activity since her alleged onset date of September 15, 2013. The ALJ also determined that Quick's arthritis and fibromyalgia were severe impairments. However, the ALJ found that Quick did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (the "Listings"). The ALJ further found that Quick retained the residual functional capacity to
perform a range of light work as defined in 20 CFR 404.1567(b). Specifically, the claimant is able to lift and carry up to 20 pounds occasionally and 10 pounds frequently and stand, walk, and sit for 6 hours each in an 8-hour day. The claimant can occasionally climb ladders, ropes, and scaffolds and can frequently climb ramps and stairs, stoop, kneel, crouch, and crawl. She can frequently handle and finger.(Tr. 28.) The ALJ found that Quick was unable to perform any past relevant work, but that, considering Quick's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that Quick could perform. Therefore, the ALJ found that Quick was not disabled from the alleged onset date of September 15, 2013 through the date of the decision.
The Appeals Council denied Quick's request for review on April 26, 2016, making the decision of the ALJ the final action of the Commissioner. (Tr. 1-5.) This action followed.
STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings "are supported by substantial evidence and were reached through application of the correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also 42 U.S.C. § 405(g); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Thus, the court may review only whether the Commissioner's decision is supported by substantial evidence and whether the correct law was applied. See Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Craig, 76 F.3d at 589. In reviewing the evidence, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Id. Accordingly, even if the court disagrees with the Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock, 483 F.2d at 775.
ISSUES
Quick raises the following issues for this judicial review:
Issue 1 Use of medical-vocational grids. The ALJ erroneously relied on the grids in this case, failing to properly consider Quick's nonexertional impairments. Can a decision that is based on improper use of the medical-vocational grids stand?(Pl.'s Br., ECF No. 12.)
Issue 2 Credibility. In assessing a claimant's credibility the ALJ's decision must contain specific reasons for his finding, supported by the evidence in the case record. When the ALJ fails to provide adequate reasons for his credibility determination, can his decision be based on substantial evidence?
DISCUSSION
Although Quick raises two issues for this judicial review, the court finds for the reasons that follow that remand is warranted for further consideration of Quick's subjective complaints. Therefore, the court addresses this issue first.
With regard to subjective complaints, the United States Court of Appeals for the Fourth Circuit has stated that "the determination of whether a person is disabled by pain or other symptoms is a two-step process." Craig, 76 F.3d at 594. It appears that in this matter only the second step is at issue, during which the ALJ must expressly consider "the intensity and persistence of the claimant's [symptom] and the extent to which it affects her ability to work." Id. In making these determinations, the ALJ's decision "must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight." SSR 96-7p, 1996 WL 374186, at *4. "[A]llegations concerning the intensity and persistence of pain or other symptoms may not be disregarded solely because they are not substantiated by objective medical evidence." Id. (emphasis added). "This is not to say, however, that objective medical evidence and other objective evidence are not crucial to evaluating the intensity and persistence of a claimant's pain and the extent to which it impairs her ability to work." Craig, 76 F.3d at 595. A claimant's subjective complaints "need not be accepted to the extent they are inconsistent with the available evidence, including objective evidence of the underlying impairment, and the extent to which that impairment can reasonably be expected to cause the [symptoms] the claimant alleges he suffers." Id. The social security regulations inform claimants that in evaluating subjective complaints, the Commissioner will consider the following relevant factors:
The first step requires there to "be objective medical evidence showing the existence of a medical impairment(s) which results from anatomical, physiological, or psychological abnormalities and which could reasonably be expected to produce the pain or other symptoms alleged." Craig, 76 F.3d at 594 (internal quotation omitted).
Effective March 28, 2016, SSR 96-7p was superseded by SSR 16-3p, 2016 WL 1119029. See 2016 WL 1237954 (correcting the effective date of SSR 16-3p to read March 28, 2016). Because this application was adjudicated prior to the effective date of SSR 16-3p, the court analyzes Quick's allegations under SSR 96-7p. See Best v. Berryhill, No. 0:15-cv-02990-DCN, 2017 WL 835350, at *4 n.3 (Mar. 3, 2017) (applying SSR 96-7p under the same circumstances). Regardless, the court observes that SSR 16-3p discontinues use of the term "credibility," but "the methodology required by both SSR 16-3p and SSR 96-7, are quite similar. Under either, the ALJ is required to consider [the claimant's] report of his own symptoms against the backdrop of the entire case record." Id. (alteration in original) (quoting Sullivan v. Colvin, Civil Action No. 7:15-cv-504, 2017 WL 473925, at *3 (W.D. Va. Feb. 3, 2017)); see also Keaton v. Colvin, No. 3:15CV588, 2017 WL 875477, at *6 (E.D. Va. Mar. 3, 2017) ("Effective as of March 28, 2016, SSR 16-3p superseded SSR 96-7p. SSR 16-3p effectively removes the use of the term "credibility" but does not alter the substantive analysis.").
(i) Your daily activities;
(ii) The location, duration, frequency, and intensity of your pain or other symptoms;
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any medication you take or have taken to alleviate your pain or other symptoms;
(v) Treatment, other than medication, you receive or have received for relief of your pain or other symptoms;20 C.F.R. § 404.1529(c)(3).
(vi) Any measures you use or have used to relieve your pain or other symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and
(vii) Other factors concerning your functional limitations and restrictions due to pain or other symptoms.
In this case, the ALJ summarized Quick's testimony in detail as follows:
At the hearing, the claimant testified she was unable to work due to her chronic pain in different parts of her body, including her knees, hips, shoulders, hands, and feet with periodic swelling. The claimant stated she was diagnosed with inflammatory arthritis, fibromyalgia, and osteoarthritis. The claimant stated that in July 2013, she noticed a change in her ability to move about, including climbing stairs and getting up from a chair. She stated she had difficulty sleeping and hip pain. The claimant reported that as time progressed, she had problems concentrating and staying on task. The claimant indicated her work suffered and she began to have performance problems and would miss work. The claimant complained of several bouts of migraine headaches, which would last for 3 to 4 days. The claimant stated she was let go from work due to these issues. She stated that while she did look for work, she was unable to find anything she was capable of performing.
The claimant testified she suffered from medication side effects including drowsiness, difficulty thinking and concentrating, fatigue, and abdominal pain. She reported fatigue and difficulty waking up in the morning with an unstable gait. She stated taking her first few steps in the morning was very difficult. The claimant complained of hip, knee, and foot pain with stiffness and difficulty getting comfortable in bed. She stated her pain level would vary from an 8 to a 10 on a 10-point scale and was exacerbated by movement and the weather. She reported there was no way for her to predict pain flare-ups and stated that she would have only 15 good days per month. She stated if she tried to push herself one day, she would pay for it the next day and would have to lie down and use a heat pad while resting. For bad days, the claimant indicated she could barely get out of bed and would only go from her bed to the couch. The claimant testified she suffered from shortness of breath and dizziness. She stated she could not really exercise because movement was painful. The claimant indicated that while she had lost 60 pounds in the last year, it has not made her feel better. The claimant stated she could not bend to unload the dishwasher and had difficulty lifting overhead. She reported grip weakness and stated she would drop things. She also stated she suffered from swelling of her hands, fingers, and legs. She stated she could only sit for 15 to 20 minutes, could stand for 10 minutes, and walk for very short distances. The claimant indicated that loud noises, bright lights, and temperature extremes would bother her. She stated she
suffered from depression over her condition and inability to work. The claimant also testified that she had numbness and tingling of her hands and would frequently forget things. She stated she could only drive short distances and had difficulty sleeping even with the use of medication. The claimant stated her husband had to do a lot of the cooking and cleaning because of her limitations. She reported she read pretty much all day but had difficulty with comprehending and retaining what she read. The claimant stated she suffered from migraine headaches on average 6 days per week and explained that when she had a migraine she was unable to do anything.(Tr. 29-30.)
Additionally, the claimant reported to the Social Security Administration that she required frequent rest breaks. See Exhibit 14E. She reported taking medications including Flexeril, Tramadol, Lyrica, Methotrexate, Cymbalta, Doxepin, Myrapex, and Prednisone. See Exhibit 18E.
The ALJ found that Quick's "medically determinable impairments could reasonably be expected to cause some of the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not fully credible to the extent they are inconsistent with the above residual functional capacity [("RFC")] assessment." (Tr. 30.) The parties agree that the ALJ's use of this "boilerplate" language for part two of the credibility analysis indicating that Quick's subjective complaints are not credible to the extent they are inconsistent with the above RFC assessment was found to be improper by the United States Court of Appeals for the Fourth Circuit in Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015). Specifically, the Mascio Court found that "this boilerplate[] 'gets things backwards' by implying 'that ability to work is determined first and is then used to determine the claimant's credibility.' " Id. at 639 (footnote omitted). However, the parties also agree that this error can be harmless if the ALJ properly analyzed Quick's credibility elsewhere. Id. For the reasons that follow, and as argued by Quick, the court is unable to find that this error was harmless.
The court notes that the decision in Mascio was issued over nine months before the decision at issue.
The remainder of the ALJ's analysis of Quick's subjective complaints states as follows:
The claimant has required limited medical treatment and specialized medical care given the extent of her allegations of such significant dysfunction and pain. Medical records document the claimant was followed by a rheumatologist and was generally seen once every 3 months. Moreover, clinical findings are inconsistent with the nature and extent of the claimant's allegations. Upon examination, the claimant was routinely noted to have intact strength and sensation and no gait disturbance was found. Moreover, no grip weakness, shortness of breath, or dizziness was found upon examination and the claimant retained intact attention, concentration, and memory. Additionally, despite her testimony, treatment notes reveal the claimant routinely denied any medication side effects. Medical records fail to document any dysfunction with walking, standing, or sitting upon examination or more than occasional mild swelling of the hands, wrists, and fingers with no other swelling noted. A review of the claimant's rheumatologic treatment notes shows the claimant reported improvement with treatment and medication adjustment. She did not apparently complain of difficulty with loud noises, bright lights, or temperature extremes and no related findings were documented. Finally, the claimant did not apparently complain of such frequent or severe migraine headaches and mental status examinations routinely revealed the claimant to have a pleasant mood and appropriate affect. See also Exhibit 4F and Exhibit 7F.(Tr. 30.)
The claimant's activities of daily living are inconsistent with her allegations of such significant functional limitations, but are fully consistent with the residual functional capacity described above. The claimant testified she was able to read and visit with her family. Despite her complaints of grip and upper extremity weakness and dysfunction, she has testified and reported that she enjoyed sewing as a hobby. See also Exhibit 5E. The claimant also reported she was able to do laundry, watch television, prepare simple meals, drive, shop for groceries, and talk and text with her smartphone. See Exhibit 5E. The claimant's husband also reported the claimant was able to prepare simple meals, sweep, occasionally grocery shop, and rarely do laundry. He reported the claimant was able to use social media, including Facebook, and walked on a treadmill. See Exhibit 4E.
Although the ALJ appears to have applied the relevant factors in evaluating Quick's subjective complaints, as argued by Quick, the court is simply unable to determine whether the ALJ's findings and conclusions are supported by substantial evidence. For example, in challenging the ALJ's evaluation of this evidence, Quick points out with regard to her treatment and medication adjustments that Quick's medical records reveal "ups and downs." (Pl.'s Br. at 18, ECF No. 12 at 21) (citing Tr. 334, 375, 393, 412); (see also Tr. 420) (opinion from her treating rheumatologist indicating Quick's symptoms "all fluctuate in severity, but are always present and make it very difficult for her to function with"). Additionally, it is unclear how regular visits to a rheumatologist that included regular medication adjustments for Quick's symptoms constituted "limited medical treatment or specialized medical care" to support discounting Quick's credibility, especially when that rheumatologist issued more than one opinion concerning the disabling nature of Quick's conditions. Moreover, although many medical records indicate Quick did not experience side effects, Quick argues that others indicated she did. (Pl.'s Br. at 17, ECF No. 12 at 20) (citing Tr. 227); (see also Tr. 420) (opinion from her treating rheumatologist indicating that Quick required immunosuppressive therapy which are medications that are hard to tolerate). Therefore, the ALJ's suggestion that Quick's testimony that she experienced side effects was unsupported by the record appears to be incorrect. Additionally, it is unclear how the limited daily activities discussed by the ALJ support discounting Quick's credibility, especially when considering it with the intermittent nature of Quick's conditions.
Furthermore, as pointed about by Quick and contrary to the ALJ's evaluation of the rheumatologist's opinion, which the ALJ found that treatment notes "fail to indicate any significant malaise, fatigue, rashes, weakness, gait disturbance[,] chronic severe swelling, or loss of sensation upon examination," the record does show that Quick experienced fatigue, rashes, weakness, numbness and tingling. (See, e.g., Tr. 319, 322, 327, 335, 339, 365, 366, 371, 376, 389, 400, 412.)
Based on the foregoing, the court is unable to determine whether the ALJ's evaluation of Quick's subjective complaints is supported by substantial evidence, and in light of some of the above errors, the court is unable to conduct a meaningful judicial review of the ALJ's decision. Therefore, upon review of the parties' arguments, the record in the matter, and in accordance with the above discussed law, the court is constrained to recommend that this matter be remanded for further consideration and discussion of Quick subjective complaints.
The court expresses no opinion as to the weight this evidence should be given or whether consideration of this evidence by the Commissioner or ALJ will necessarily lead to a finding that Quick is entitled to benefits. Further analysis and discussion of this evidence may well not change the conclusion.
Further consideration of these matters may impact Quick's remaining issue. Therefore, in light of the court's recommendation that this matter be remanded for further consideration, the court need not address the plaintiff's remaining issue, as it may be rendered moot on remand. See Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3d Cir. 2003) (remanding on other grounds and declining to address claimant's additional arguments).
RECOMMENDATION
Based on the foregoing, the court recommends that the Commissioner's decision be reversed pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be remanded to the Commissioner for further consideration as discussed above.
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE July 19, 2017
Columbia, South Carolina
The parties' attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).