Opinion
C/A 6:23-cv-2312-JDA-KFM
04-15-2024
Rosa L.,[1]Plaintiff, v. Martin J. O'Malley,[2]Commissioner of Social Security, Defendant.
REPORT OF MAGISTRATE JUDGE
KEVIN F. MCDONALD, UNITED STATES MAGISTRATE JUDGE.
This case is before the court for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.), concerning the disposition of Social Security cases in this District, and 28 U.S.C. § 636(b)(1)(B). The plaintiff brought this action pursuant to Section 205(g) of the Social Security Act, as amended (42 U.S.C. 405(g)), to obtain judicial review of a final decision of the Commissioner of Social Security denying her claim for disability insurance benefits under Title II of the Social Security Act.
A report and recommendation is being filed in this case, in which one or both parties declined to consent to disposition by the magistrate judge.
ADMINISTRATIVE PROCEEDINGS
The plaintiff filed an application for disability insurance benefits (“DIB”) on November 25, 2013, alleging that she became unable to work on August 22, 2013 (Tr. 177-78). The application was denied initially (Tr. 61-75, 77) and on reconsideration (Tr. 78-95) by the Social Security Administration. On May 16, 2014, the plaintiff requested a hearing (Tr. 103-04). On December 15, 2016, an administrative hearing was held at which the plaintiff, unrepresented, appeared and testified in Charleston, South Carolina, before administrative law judge (“ALJ”) Tammy Georgian (Tr. 11-31). On March 2, 2016, ALJ Georgian considered the case de novo and found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 37-55). ALJ Georgian's finding became the final decision of the Commissioner of Social Security when the Appeals Council denied the plaintiff's request for review on August 4, 2017 (Tr. 1-4).
A hearing on August 27, 2015, was rescheduled to provide the plaintiff time to find an attorney (Tr. 56-60).
On October 4, 2017, the plaintiff filed a complaint in the United States District Court for the District of South Carolina, and on November 8, 2018, the case was remanded to the Commissioner for further proceedings (Tr. 819-20). Letbetter v. Comm'r Soc. Sec. Admin., C/A No. 4:17-cv-02676-TMC, at doc. 43 (D.S.C. Nov. 8, 2018). On January 4, 2019, the Appeals Council issued an order remanding the matter to ALJ Georgian to issue a new decision in accordance with the order (Tr. 824). After remand, on July 8, 2020, ALJ Georgian considered the case de novo and issued a decision finding that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 831-60).
The plaintiff requested review of ALJ Georgian's July 8, 2020, decision and on June 14, 2022, the Appeals Council issued an order remanding the matter to a new ALJ to issue a new decision in accordance with the order (T r. 863-65). On November 16, 2022, another administrative hearing was held at which the plaintiff, this time represented by counsel, and Dawn Bergren, an impartial vocational expert, appeared and testified before ALJ Richard LaFata by telephone (Tr. 711-77). On January 30, 2023, ALJ LaFata considered the case de novo and found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 676-710). Because ALJ LaFata's finding became the final decision of the Commissioner of Social Security pursuant to 20 C.F.R. § 404.984(d), the plaintiff then filed the instant matter (doc. 1).
In making the determination that the plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant last met the insured status requirements of the Social Security Act on December 31, 2018.
(2) The claimant did not engage in substantial gainful activity during the period from her alleged onset date of August 22, 2013, through her date last insured of December 31, 2018 (20 C.F.R. §§ 404.1571 et seq.).
(3) Through the date last insured, the claimant had the following combination of severe impairments: degenerative disc disease (DDD), right rotator cuff tear, obesity, attention deficit hyperactivity disorder (ADHD), panic disorder, anxiety disorder, and affective disorder (20 C.F.R. § 404.1520(c)).
(4) Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526).
(5) After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform less than the full range of sedentary work as defined in 20 C.F.R. § 404.1567(a). She can occasionally climb ramps and stairs, as well as occasionally, balance, crouch, stoop, and kneel. The claimant can never climb ladders, ropes, scaffolds, or crawl. She can occasionally reach overhead with her bilateral upper extremities; as well as frequently, and on a bilateral basis, handle, finger, and feel. She can reach in all other directions frequently and on a bilateral basis. The claimant can operate hand controls frequently and bilaterally; and occasionally push and/or pull within the assigned exertional level with her right upper extremity. She can never work at unprotected heights, nor around moving mechanical parts (or dangerous machinery), and never operating a motor vehicle as an occupational requirement. The claimant must avoid concentrated exposure to humidity, dust, odors, fumes and pulmonary irritants, extreme cold and extreme heat. She must avoid concentrated exposure to tools and work processes that would expose the claimant's right upper extremity on a concentrated basis to vibration. The claimant would be limited to a work environment where the noise intensity level would not exceed a level 3-moderate. The work, which she can do, is limited to occupations, which involve the performance of simple, routine, tasks but not at a production rate pace, such as assembly line work. She is able
to make simple work-related decisions with regard to dealing with changes in the work setting. The claimant can interact occasionally with supervisors and co-workers. She can have incidental contact with the public. The claimant's time off task can be accommodated by normal breaks. Based on treatment demands and the severity, frequency, and duration of symptoms over time, including but not limited to headaches, in the relevant period under review prior to the date last insured, the claimant would have exhibited a need for absenteeism on a cumulative and consistent basis not to exceed 1 day a month.
(6) Through the date last insured, the claimant was unable to perform any past relevant work (20 C.F.R. § 404.1565).
(7) The claimant was born on October 7, 1969, and was 49 years old, which is defined as a younger individual age 18-44, on the date last insured. The claimant subsequently changed age category to a younger individual age 45-49 (20 C.F.R. § 404.1563).
(8) The claimant has at least a high school education (20 C.F.R. § 404.1564).
(9) Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled,” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 C.F.R. Part 404, Subpart P, Appendix 2).
(10) Through the date last insured, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 C.F.R. §§ 404.1569 and 404.1569a).
(11) The claimant was not under a disability, as defined in the Social Security Act, at any time from August 22, 2013, the alleged onset date, through December 31, 2018, the date last insured (20 C.F.R. § 404.1520(g)).
The only issues before the court are whether proper legal standards were applied and whether the final decision of the Commissioner is supported by substantial evidence.
APPLICABLE LAW
Under 42 U.S.C. § 423(d)(1)(A), (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).
To facilitate a uniform and efficient processing of disability claims, the Social Security Act has by regulation reduced the statutory definition of “disability” to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment that meets or medically equals an impairment contained in the Listing of Impairments found at 20 C.F.R. pt. 404, subpt. P, app. 1, (4) can perform her past relevant work, and (5) can perform other work. Id. § 404.1520. If an individual is found disabled or not disabled at any step, further inquiry is unnecessary. Id. § 404.1520(a)(4).
A claimant must make a prima facie case of disability by showing she is unable to return to her past relevant work because of her impairments. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). Once an individual has established a prima facie case of disability, the burden shifts to the Commissioner to establish that the plaintiff can perform alternative work and that such work exists in the national economy. Id. (citing 42 U.S.C. § 423(d)(2)(A)). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Id. at 191-92.
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). “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.” Id. 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. Consequently, even if the court disagrees with the Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
ANALYSIS
The plaintiff, who was 43 years old on the alleged disability onset date, seeks disability based upon physical and mental impairments stemming from a workplace incident on August 22, 2013. She has past relevant work experience as a software engineer and logistics specialist (Tr. 699). The plaintiff argues that the ALJ LaFata erred by (1) finding the plaintiff's carpel tunnel syndrome (“CTS”) and irritable bowel syndrome (“IBS”) non-severe (doc. 18 at 22-28); (2) failing to explain how the residual functional capacity (“RFC”) assessment accounted for the plaintiff's CTS and IBS (id. at 20-29); (3) failing to sufficiently explain the evaluation of the plaintiff's subjective complaints as required under Social Security Ruling (“SSR”) 16-3p (id. at 29-32); and (4) failing to appropriately weigh opinion evidence from the plaintiff's providers (id. at 32-37). The plaintiff requests that this matter be remanded with an award of benefits (id. at 37-40). The Commissioner, on the other hand, asserts that the ALJ's decision is supported by substantial evidence, should be affirmed, and that benefits should not be awarded (doc. 21 at 16-31).
Step Two
The plaintiff asserts that the ALJ erred in finding the plaintiff's CTS and IBS non-severe (doc. 18 at 22-28). A severe impairment is one that “significantly limits [a claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). “Basic work activities” are “the abilities and aptitudes necessary to do most jobs,” examples of which include “physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling.” Id. § 404.1522(b). In short, the “inquiry is a de minimis screening device to dispose of groundless claims.” McCrea v. Comm'r of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004). An ALJ must consider all of a claimant's medically determinable impairments, even those that are not severe, in the RFC assessment. 20 C.F.R. § 404.1545(a)(2). If an ALJ commits error at step two, it can be rendered harmless if “the ALJ considers all impairments, whether severe or not, at later steps.” Robinson v. Colvin, C/A No. 4:13-cv-823-DCN, 2014 WL 4954709, at *14 (D.S.C. Sept. 29, 2014) (citing Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008)); see also Washington v. Astrue, 698 F.Supp.2d 562, 580 (D.S.C. 2010) (holding that there is “no reversible error where the ALJ does not find an impairment severe at step two provided that he or she considers that impairment in subsequent steps”). For the reasons that follow, it appears that the ALJ's failure to examine the plaintiff's IBS in the decision is not supported by substantial evidence as well as that the ALJ's RFC discussion does not reflect consideration of the plaintiff's IBS such that the error at step two is rendered harmless.
Because the undersigned recommends that this matter be remanded based upon the ALJ's error with respect to the plaintiff's IBS, the undersigned will not address the plaintiff's other allegations of error as they can be considered on remand by the ALJ.
At step two of the sequential evaluation process, although the plaintiff argues her IBS was found non-severe, a review of the ALJ's decision actually indicates that the ALJ did not mention the plaintiff's IBS at all in summarizing the plaintiff's severe and non-severe impairments (see Tr. 679-80). Indeed, although the ALJ noted in passing a couple of times that the plaintiff reported constipation and diarrhea, the decision does not contain any mention of the plaintiff's specific treatment for IBS during the relevant period at Palmetto Digestive Health Specialists (see Tr. 2065-91). For example, on January 27, 2014, the plaintiff reported that she was constipated secondary to pain medications (Tr. 460-61), although she reported to Richard Frisch, M.D., in March 2014, and Kelly Eddinger, PA-C, in June 2014, that she had no changes in bladder or bowel habits (Tr. 497-99, 655-56). On June 25, 2014, John Bohler, M.D., saw the plaintiff for rectal bleeding and prescribed new medicine for the plaintiff to try (Tr. 1530-31), but the plaintiff still reported constipation and hemorrhoids upon presentment to Christina Chandler, PA-C, in December 2015 (Tr. 626-27). Similarly, in 2016, although the plaintiff reported blood in her stool in February and September to Ms. Chandler, she reported no gastrointestinal symptoms to Brodie McKoy, M.D., during treatment visits in March, May, and November (compare Tr. 1310-11 (reporting blood in stool) and 1333-34 (reporting blood in stool) with Tr. 1426-31 (noting no gastrointestinal symptoms) and 1448-60 (noting no gastrointestinal symptoms)). On October 24, 2016, the plaintiff complained of ongoing rectal bleeding and was referred to a specialist (Tr. 2089-91), and during the administrative hearing on December 15, 2016, the plaintiff testified that she experienced constipation and hemorrhoids causing rectal bleeding constantly (Tr. 23). In 2017, the plaintiff denied gastrointestinal incontinence or issues other than constipation (Tr. 1282-83, 1411-12, 1418-21), but reported to the emergency room that she had been newly diagnosed with IBS on March 3, 2017 (Tr. 1781-1837). In 2018, however, treatment records with James Schnell, M.D., noted that the plaintiff had chronic constipation and diarrhea and that while her symptoms improved with treatment, she continued to experience fecal incontinence and smearing multiple times per week (Tr. 2065-88). Similarly, during the administrative hearing in 2022, the plaintiff testified that since 2017, her IBS required her to be near a restroom secondary to diarrhea (Tr. 751-52, 755).
As noted above, the ALJ noted some of the plaintiff's subjective reports of constipation and diarrhea, but records noted above were either glossed over by the ALJ or otherwise not mentioned in the ALJ's decision. These records undermine the ALJ's decision, which does not even recognize the plaintiff's IBS as a medically determinable impairment (whether severe or non-severe). As such, the ALJ's failure to address the plaintiff's IBS as a severe or non-severe impairment is not supported by substantial evidence. Nevertheless, there is “no reversible error where the ALJ does not find an impairment severe at step two provided that he or she considers that impairment in subsequent steps.” Washington, 698 F.Supp.2d at 580. Of note, the Commissioner does not argue harmless error with respect to this allegation of error by the plaintiff - only arguing that the plaintiff failed to show that additional disabling limitations would have been caused by her IBS and CTS (see doc. 21). However, here, the ALJ's RFC assessment included no mention of the plaintiff's IBS in explaining the RFC limitations. For example, as argued by the plaintiff, the ALJ noted that any off-task time the plaintiff may have would be accommodated by normal breaks, but he did not address whether that off-task time accounted for the plaintiff's need for unpredictable bathroom breaks or proximity to a bathroom secondary to her IBS (see doc. 18). Indeed, as noted by the Court of Appeals for the Fourth Circuit in Dowling v. Commissioner of Social Security Administration, “[T]he need to visit the bathroom many times throughout the day impacts one's ability to work,” and the ALJ in Dowling erred by not evaluating the claimant's need to visit the bathroom in setting out the RFC limitations. 986 F.3d 377, 389 (4th Cir. 2021). Perhaps the ALJ determined that additional limitations were not required during the relevant period to address the plaintiff's IBS; however, the ALJ - not this court - is required to make that determination and provide such an explanation based on the record evidence. As such, the ALJ's decision is not supported by substantial evidence based on his failure to address the plaintiff's IBS.
Remaining Allegations of Error
In light of the court's recommendation that this matter be remanded for further consideration as discussed above, the court need not specifically address the plaintiff's remaining allegations of error as the ALJ will be able to reconsider and re-evaluate the evidence as part of the reconsideration of this claim. Hancock v. Barnhart, 206 F.Supp.2d 757, 763-64 n.3 (W.D. Va. 2002) (on remand, the ALJ's prior decision has no preclusive effect as it is vacated and the new hearing is conducted de novo); 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). As such, should the district court adopt this recommendation, the ALJ is to also take into consideration the plaintiff's remaining allegations of error on remand.
CONCLUSION AND RECOMMENDATION
Although the plaintiff requests that the court remand this action for an award of benefits (doc. 18 at 37-40), the undersigned finds that the plaintiff's entitlement to benefits is not wholly established and thus recommends that this matter be remanded for further consideration and assessment of the above-discussed evidence by the ALJ in the first instance. See Crider v. Harris, 624 F.2d 15, 17 (4th Cir. 1980) (finding remand for an award of benefits was warranted where the individual's entitlement to benefits was “wholly established” on the state of the record). Wherefore, based upon the foregoing, this court recommends that the Commissioner's decision be reversed under sentence four of 42 U.S.C. § 405(g), with a remand of the cause to the Commissioner for further proceedings as discussed above.
IT IS SO RECOMMENDED.
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
250 East North Street
Greenville, South Carolina 29601
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).