Opinion
C/A No. 2:19-cv-02457-BHH-MGB
12-18-2020
LISA C. ROSS, Plaintiff, v. ANDREW M. SAUL, Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
This case is before the Court for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., concerning the disposition of Social Security cases in this District, and Title 28, United States Code, Section 636(b)(1)(B). Plaintiff Lisa C. Ross ("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 Administration (the "Administration") regarding her claim for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB") under Title II and Title XVI of the Social Security Act (the "Act"). For the reasons set forth below, the undersigned recommends that the Court reverse the Commissioner's decision and remand for further proceedings.
RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS
Plaintiff was 49 years old on her alleged disability onset date of April 15, 2013. (R. at 251.) Plaintiff alleged disability due to, inter alia, fibromyalgia, sciatica, arthritis, and high blood pressure. (R. at 251-58.) Plaintiff has past relevant work as a bank teller. (R. at 99).
Plaintiff applied for SSI and DIB on October 22, 2015, alleging disability beginning April 15, 2013. (R. at 81.) Her application was denied initially and on reconsideration. After a hearing before an Administrative Law Judge (ALJ) on November 14, 2017, the ALJ issued an unfavorable decision on March 7, 2018. (R. at 73-88.) The Appeals Council ("AC") denied Plaintiff's request for review. (R. at 1-9). In making the determination that Plaintiff was not entitled to benefits, the Commissioner adopted the following findings from the ALJ's decision:
(1) The claimant meets the insured status requirements of the Social Security Act through December 31, 2018.(R. at 79-84.)
(2) The claimant has not engaged in substantial gainful activity since April 15, 2013, the alleged onset date (220 CFR 404.1571 et seq., and 416.971 et seq.).
(3) The claimant has the following severe impairments: degenerative joint disease of the left shoulder status-post replacement, obesity, osteoarthritis of the right knee, fibromyalgia, and hypertension (20 CFR 404.1520(c) and 416.920(c)).
(4) The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
(5) After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except that she cannot climb ladders or ropes; she can occasionally bend, balance, stoop, crouch, crawl, and kneel; she can occasionally reach overhead with the left upper extremity; she can frequently reach in all other directions with the left upper extremity; she can frequently handle and finger with the left hand; and she cannot work around unprotected heights.
(6) The claimant has not been under a disability, as defined in the Social Security Act, since April 15, 2013, through the date of this decision (20 CFR 404.1520(f) 416.920(f)).
Originally, the ALJ found Plaintiff could return to her past job; however, the Appeals Council disagreed with the ALJ and determined that Plaintiff could not perform any past relevant work. (Id. at 6.) Nonetheless the Appeals Council found that Plaintiff was capable of performing other work based upon the residual functional capacity the ALJ found. (Id.)
Plaintiff subsequently filed a civil action in federal court to obtain judicial review of the unfavorable administrative decision. (Dkt. No. 1.) The matter was referred to the undersigned Magistrate Judge for a Report and Recommendation ("R&R") pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and Title 28, United States Code, Section 636(b)(1)(B).
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a "disability." 42 U.S.C. § 423(a). The Act also provides that SSI disability benefits shall be available for aged, blind, or disabled persons who have income and resources below a specific amount. See 42 U.S.C. § 1381 et seq. "Disability" is defined in the Act as the inability to "engage in 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" twelve months. See 42 U.S.C. § 423(d)(1)(A) (DIB context); 42 U.S.C. § 1382(a)(3)(A) (SSI context).
"[T]he definition of disability is the same under both DIB and SSI. . . ." Manson v. Colvin, No. 9:12-CV-1157-TLW-BM, 2013 WL 4042188, at *2 n.2 (D.S.C. Aug. 8, 2013) (citing Emberlin v. Astrue, No. 06-CV-4136, 2008 WL 565185, at *1 n.3 (D.S.C. Feb. 29, 2008)).
To facilitate a uniform and efficient processing of disability claims, the 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 which equals an illness contained in the Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents him from doing substantial gainful employment. See 20 C.F.R. § 404.1520 (DIB context); 20 C.F.R. § 416.920 (SSI context). If an individual is found not disabled at any step, further inquiry is unnecessary. See 20 C.F.R. § 404.1520(a)(4) (DIB context); 20 C.F.R. § 416.920(a)(4) (SSI context); see also Hall v. Harris, 658 F.2d 260 (4th Cir. 1981).
The claimant bears the burden of proof with respect to the first four steps of the analysis. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). Once the claimant has established an inability to return to his past relevant work, the burden shifts to the Commissioner to show that the claimant—considering his age, education, work experience, and residual functional capacity—can perform alternative jobs and that such jobs exist in the national economy. See SSR 82-62, 1982 WL 31386, at *3; Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); see also Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016). The Commissioner may satisfy this burden by obtaining testimony from a vocational expert. See Grant, 699 F.2d at 191-92.
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the findings of the Commissioner "are supported by substantial evidence and whether the correct law was applied." Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); see also Woods v. Berryhill, 888 F.3d 686, 691 (4th Cir. 2018); Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015); 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). Consequently, the Act precludes a de novo review of the evidence and requires that the court uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing 42 U.S.C. § 405(g) and Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)); see also Mascio, 780 F.3d at 640; Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012).
Substantial evidence is "more than a mere scintilla of evidence but may be less than a preponderance." Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015) (citing Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012)). "In reviewing for substantial evidence, [the court does] not undertake to reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ]." Hancock, 667 F.3d at 472. "Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ]," not on the reviewing court. Id. However, "[a] factual finding by the ALJ is not binding if it was reached by means of an improper standard or misapplication of the law." Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).
DISCUSSION
On appeal, Plaintiff contends that the ALJ erred in failing to properly evaluate several aspects of her disability claim. First, Plaintiff argues that the Appeals Council failed to consider new evidence she submitted. (Dkt. No. 14 at 10.) Specifically, Plaintiff asserts that the ALJ ignored medical records she submitted after her ALJ denial which illustrated the severity and impact of Plaintiff's hand impairments. (Id.) According to Plaintiff "it is apparent that the decision to adopt the ALJ's RFC finding would have been impacted had the AC been willing to consider additional evidence." (Id. at 11.) Second, Plaintiff argues that the ALJ improperly evaluated the opinion of Dr. William Maguire, a consultative physician. (Id. at 14.) Plaintiff asserts that the ALJ gave Dr. Maguire's opinion great weight, but the ALJ's decision to deny Plaintiff's claim does not reflect that weight given the limitations the medical evidence suggests. (Id. at 15.) Plaintiff elaborates that the ALJ did not explain his assignment of weight or evaluation of Dr. Maguire's opinion. (Id.) Third, Plaintiff asserts that the Appeals Council did not properly carry its burden when it determined that Plaintiff could not return to past work but that she could perform other work. (Id. at 17.)
Upon review of the parties' arguments, the ALJ's decision, the AC decision and the record as a whole, the undersigned finds that the ALJ's decision should be reversed. Thus, as set forth in greater detail below, the undersigned finds that substantial evidence does not support the ALJ's decision.
I. Appeals Council Evidence
Plaintiff argues that the Appeals Council failed to properly consider new evidence. Specifically, Plaintiff submitted records from Palmetto Orthopedics of Charleston, South Carolina dated May 25, 2018 through August 15, 2018; Roper St. Francis Orthopedics of Charleston, South Carolina dated April 16, 2018; and Carolina Neurological Clinic of Charleston, South Carolina dated May 9, 2018 through May 25, 2018. (R. at 4.)
The Social Security regulations provide, inter alia, that the Appeals Council will review a case if, "[s]ubject to paragraph (b) of this section, the Appeals Council receives additional evidence that is new, material, and relates to the period on or before the date of the hearing decision, and there is a reasonable probability that the additional evidence would change the outcome of the decision." 20 C.F.R. § 404.970(a)(5). "Evidence is new . . . if it is not duplicative or cumulative," and "[e]vidence is material if there is a reasonable possibility that the new evidence would have changed the outcome." Wilkins v. Sec'y, 953 F.2d 93, 96 (4th Cir. 1991) (citations omitted). New and material evidence "need not have existed during that period, but rather must be considered if it has any bearing upon whether the claimant was disabled during the relevant period of time." Outlaw v. Colvin, No. 5:11-CV-647-FL, 2013 WL 1309372, at * 2 (E.D.N.C. Mar. 28, 2013) (citing Wooldridge v. Bowen, 816 F.2d 157, 160 (4th Cir. 1987)). "[P]ost-[ALJ decision] medical evidence generally is admissible in an SSA disability determination in such instances in which that evidence permits an inference of linkage with the claimant's pre-[ALJ decision] condition." Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 341 (4th Cir.2012) (citation omitted) (finding the ALJ erred by not giving retrospective consideration to the medical evidence compiled after the claimant's date last insured).
Here, Plaintiff's newly submitted medical records deal primarily with the issues plaguing her hands- specifically, severe carpal tunnel syndrome. For instance, in an after-visit summary dated May 9, 2018, treating physician, Dr. Kimberly Young, observed diminished sensation and recommended a carpal and cubital release, after Plaintiff complained of difficulty being able to pick up items- including items as small as coins due to pain and numbness. (R. at 63-64.) Dr. Young reviewed Plaintiff's EMG/ nerve conduction study and stated that they revealed "very severe carpal tunnel as well as abnormalities in the ulnar nerve." (Id. at 63.) Plaintiff underwent carpal tunnel release surgery, left ulnar nerve decompression, and ganglion excision. (R. at 66.)
In denying Plaintiff's request to review the new evidence, the Appeals Council stated "[t]his additional evidence does not relate to the period at issue . . .[t]herefore, it does not affect the decision about whether you were disabled beginning on or before March 7, 2018." (R. at 4.) However, at Plaintiff's hearing, Plaintiff discussed her hand impairments at length. At the hearing, when Plaintiff's counsel queried Plaintiff about her ability to perform simple work tasks, Plaintiff stated:
Ever since I had my surgery, things have gotten worse, as far as my other ailments that I have, the fibromyalgia. And I have numbness in my hands and arms due to carpal tunnel in both of them. And if I do any type of-- like if I'm working on the computer and I use a mouse or anything like that, my hand goes completely numb. If I'm writing; if I use the telephone and have to sit any length of time and hold the
phone; or anything like that. I have to wear braces on my hands at night, just to be able to sleep.(R. at 100.) Furthermore, Plaintiff and her counsel engaged in the following exchange:
Q: All right. So these issues you're talking about with the hands, with the fibromyalgia -- were they problematic for you while you were working for the bank in 2015, before your shoulder surgery?(R. at 101.)
A: Yes. Yes, they were.
Evidence of hand impairments submitted after the hearing relates to the period at issue. Plaintiff testified as to serious limitations at the hearing, and Dr. Young's treatment notes provide some explanation for such limitations. Thus, evidence of Dr. Young's evaluations "permits an inference of linkage" to the relevant period. Furthermore, the evidence submitted after the fact, Dr. Young's post-hearing medical notes, corroborate Plaintiff's at-hearing statements regarding severe limitation in the use of her hands. As the Bird court found, "retrospective consideration of medical evidence is especially appropriate when corroborated by lay evidence." Bird, 699 F.3d at 341.
It is also clear that this determination could reasonably impact the final outcome in this case. In determining Plaintiff's residual functional capacity, the ALJ did not list any limitations relating to Plaintiff's hand functionality. (R. at 81-83.) Not being able to pick up even small objects like coins could impact what sort of work Plaintiff is able to do, as would numbness resulting from a task as simple as picking up a telephone. Accordingly, remand is appropriate on this ground.
II. Medical Opinions and Plaintiff's Residual Functional Capacity Assessment
Plaintiff alleges that the ALJ improperly evaluated the consultative examiner, Dr. Maguire's, assessment of her fibromyalgia, as the impairments the condition causes were not translated into Plaintiff's residual functional capacity ("RFC") assessment. Plaintiff also argues that the medical evidence as a whole does not translate into the assessment.
An RFC finding is meant to reflect the most that a claimant can do, despite her limitations. 20 C.F.R. § 404.1545(a)(1). An individual's RFC is an assessment of his "ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis." S.S.R. 96-8p at *1. An ALJ assesses a claimant's RFC "based on all the relevant medical and other evidence." 20 C.F.R. § 404.1520(a)(4).
The RFC 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). In assessing RFC, the adjudicator must discuss the individual's ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and describe the maximum amount of each work-related activity the individual can perform based on the evidence available in the case record. The adjudicator must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved.S.S.R. 96-8p.
Thus, an ALJ can give weight to some medical evidence, while disregarding other medical evidence, when determining a claimant's RFC. See Bacnik v. Colvin, No. 1:12-cv-801, 2014 WL 3547387, at *4 n. 7 (M.D.N.C. July 17, 2014). However, "'a necessary predicate to engaging in a substantial evidence review is a record of the basis for the ALJ's ruling,' including 'a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence.'" Monroe, 826 F.3d at 189 (quoting Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013)). In other words, the ALJ must "'build an accurate and logical bridge from the evidence to his conclusion.'" Id. (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)).
In this case, Plaintiff detailed her "struggles" with fibromyalgia. (Dkt. No. 14 at 15.) The medical records show that Plaintiff presented to numerous physicians regarding her fibromyalgia and pain. Plaintiff consistently complained of tenderness, leg pain, back pain, shortness of breath. (Id. at 15.) Medical records reveal consistent edema. (R. at 653; R. at 660.) In generally assessing Plaintiff's condition after a visit, Dr. Alan Nussbaum, one of Plaintiff's treating physicians, stated that Plaintiff "has carried a diagnosis of fibromyalgia for a number of years, and symptoms are consistent with this . . .[h]owever she has more joint pain and tenderness then [sic] one would expect." (R. at 647.) In his opinion for the Commissioner, consultative examiner, Dr. Maguire, corroborated the medical records and the opinion of Dr. Nussbaum, stating:
Fibromyalgia. This would be causing her some trouble with sleep and energy and some achiness which would subjectively limit her somewhat during her full 8-hour day. With regards to right leg and low back pain, this would limit her somewhat subjectively from prolonged activities . . . [w]ith regards to arthritis, the patient would again have some subjective limitations because of the discomfort what would probably made worse with most physical activity.(R. at 603.) (errors in original.)
While the ALJ discussed at length Plaintiff's struggles with fibromyalgia and her other impairments in the RFC assessment, (R. at 80-83), the ALJ provided a conclusory discussion of Plaintiff's ultimate ability to work, simply acknowledging her impairments and stating that she could return to work. (R. at 83.) Specifically, the ALJ did not acknowledge inconsistencies. As discussed above, Plaintiff detailed significant pain and soreness in both hands. The ultimate RFC only includes work specifications for Plaintiff's left hand. (R. at 80.) The ALJ also noted "Dr. Maguire indicated that the claimant's physical impairments would subjectively limit her somewhat during an 8-hour workday. . . she would be subjectively restricted from prolonged standing, walking, bending, crawling, stooping, and carrying." (R. at 82). Notwithstanding that statement, the ALJ ultimately concluded that "the evidence of record fails to indicate that claimant's osteoarthritis of the right knee has resulted in an inability to ambulate effectively" and that "the evidence indicates that the claimant is capable of sustaining a reasonable walking pace over a sufficient distance . . . ." (R. at 80.) The ALJ also does not discuss Dr. Nussbaum's observation that Plaintiff was experiencing more pain than expected. Such an analysis does not build a "logical bridge" from the evidence of severe impairment to the ALJ's ultimate conclusion. Furthermore, in generally evaluating Plaintiff's pain, the ALJ stated:
Although the claimant's allegations of such significant limitations and pain were not fully consistent with the medical evidence of record, the undersigned accorded the claimant the benefit of the doubt and further reduced the residual functional capacity to include her limitations as described above. However, the undersigned cannot find that claimant's allegations that she is incapable of all work to be consistent with the record as a whole.(R. at 83.)
By concluding that Plaintiff could perform her past work, the ALJ discounted Plaintiff's allegations of extreme pain. As the Court of Appeals for the Fourth Circuit recently held, "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 or some other disease that does not produce such evidence." Arakas v. Comm'r, Soc. Sec. Admin., No. 19-1540, 2020 WL 7331494, at *8 (4th Cir. Dec. 14, 2020) (holding that in denying the plaintiff's claim, the ALJ displayed "a failure to understand and consider the unique nature of fibromyalgia.") Accordingly, remand is warranted.
III. Remaining Ground for Relief
Regarding Plaintiff's additional allegation of error, the undersigned finds that the Appeals Council's failure to consider new evidence, as well as the ALJ's failure to properly weigh medical opinions and perform an RFC analysis, are sufficient bases upon which to remand the case to the Commissioner and, thus, the undersigned declines to specifically address Plaintiff's additional allegation of error. However, the Commissioner should take into consideration Plaintiff's remaining allegation of error.
As stated above, Plaintiff alleged that the Commissioner failed to carry his burden at Step Five of the evaluation process. (Dkt. No. 14 at 17.)
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that the Commissioner's decision be REMANDED.
IT IS SO RECOMMENDED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE December 18, 2020
Charleston, South Carolina
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
Post Office Box 835
Charleston, South Carolina 29402
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).