Opinion
C. A. 6:22-cv-03878-MGL-KFM
07-13-2023
Sallyann S.,[1] Plaintiff, v. Kilolo Kijakazi, Acting 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 January 13, 2020, alleging that she became unable to work on September 26, 2019 (Tr. 223-25). The application was denied initially (Tr. 66-80) and on reconsideration (Tr. 81-105) by the Social Security Administration (“SSA”). On March 8, 2021, the plaintiff requested a hearing (Tr. 130-31). On September 23, 2021, an administrative hearing was held at which the plaintiff, represented by counsel, and Michelle McBroom-Weiss, an impartial vocational expert, appeared and testified by telephone due to the COVID-19 pandemic before the administrative law judge (“ALJ”) assigned to the case (Tr. 40-65). On December 16, 2021, the ALJ 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. 18-39). The ALJ's decision became the final decision of the Commissioner of Social Security when the Appeals Council denied the plaintiff's request for review on August 25, 2022 (Tr. 3-6). After obtaining additional time to file this action (Tr. 1), the plaintiff filed this action for judicial review pro se (doc. 1).
The Appeals Council extended the deadline to November 2, 2022 (identifying that as the date this civil action was filed) (Tr. 1), but this action was filed on November 4, 2022 (doc. 1). However, because it appears that the Appeals Council intended to extend the plaintiff's filing deadline to the date this action was filed - and the Commissioner has not argued that this action is untimely - the undersigned has considered this case as timely filed.
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 meets the insured status requirements of the Social Security Act through March 31,2024.
(2) The claimant has not engaged in substantial gainful activity since September 26, 2019, the alleged onset date (20 C.F.R. § 404.1571, et seq.).
(3) The claimant has the following severe impairments: depression, anxiety, and vertigo (20 C.F.R. § 404.1520(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 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, I find that the claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: she can never climb ropes, ladders,
or scaffolds. She can frequently climb ramps and stairs. She can have occasional exposure to hazards, dangerous moving machinery, and unprotected heights. She can perform simple, and detailed work with frequent judgment required on the job and occasional changes in the work setting. She can perform work with a reasoning level up to and including three, which can be performed on a sustained basis for eight hours a day, five days a week, in two-hour increments with normal breaks for an eight-hour day. She can have occasional contact with the public.
(6) The claimant is unable to perform any past relevant work (20 C.F.R. § 404.1565).
(7) The claimant was born on October 28, 1957, and was 61 years old, which is defined as an individual closely approaching retirement age, on the alleged disability onset date (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) Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 C.F.R. §§ 404.1569 and 404.1569a).
(11) The claimant has not been under a disability, as defined in the Social Security Act, from September 26, 2019, through the date of this decision (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 was 61 years old when she applied for DIB, alleging that she cannot work because her impairments prevent her from focusing and being around people. Because she is proceeding pro se, the plaintiff's allegations of error have been liberally construed as asserting that the ALJ erred by (1) finding the plaintiff's irritable bowel syndrome (“IBS”) a non-medically determinable impairment (“MDI”) and (2) failing to properly explain the mental residual functional capacity (“RFC”) findings (docs. 11; 24). The Commissioner, on the other hand, asserts that the ALJ's decision is supported by substantial evidence and should be affirmed (doc. 25 at 9-18).
New Evidence
As an initial matter, with her brief arguing that the ALJ erred in denying her request for benefits, the plaintiff submitted medical records post-dating the ALJ's decision (doc. 24-1). Sentence six of 42 U.S.C. § 405(g) provides that a court “may at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding.” The Court of Appeals for the Fourth Circuit has recognized four requirements that an individual seeking a sentence six remand must satisfy. First, the claimant must demonstrate that the new evidence is relevant to the determination of disability at the time the claimant first applied for benefits and is not merely cumulative of evidence already on the record. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985) (citing Mitchell v. Schweiker, 699 F.2d 185, 188 (4th Cir. 1983)). Second, the claimant must establish that the evidence is material, in that the Commissioner's decision “‘might reasonably have been different' had the new evidence been before [it].” Id. (quoting King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)). Third, the claimant must show that good cause exists for her failure to present the evidence earlier. Id. Fourth, the claimant must present to the reviewing court “‘at least a general showing of the nature' of the new evidence.” Id. (quoting King, 599 F.2d at 599). Here, the plaintiff has failed to satisfy the four-part test. As an initial matter, although the fact that these records postdate the ALJ's decision and the decision by the Appeals Council may provide a basis for good cause (part 3 of the Borders test) and the plaintiff has submitted the evidence to the court to provide its general nature (part 4 of the Borders test), the plaintiff cannot meet the other two parts of the test. First, the records submitted by the plaintiff, dated March and April 2023, two years after the ALJ's decision, do not relate to the determination of disability by the ALJ. For example, the records indicate that the plaintiff has new impairments, such as involuntary muscle jerks (doc. 24-1 at 12); as such, these records do not relate back to the period under consideration by the ALJ (the alleged onset date of September 26, 2019, through the decision date of December 16, 2021). Second, the newly-submitted records do not appear material. Indeed, the records include subjective reports by the plaintiff of anxiety, memory loss, and IBS, but each appointment indicates that the plaintiff had normal examination findings (see doc. 24-1 at 7, 11, 15, 18, 24-25). These benign examination findings appear supportive of - and not contradictory to - the ALJ's decision; thus, they are not material. As such, that the new evidence submitted by the plaintiff with her brief should not be considered in this matter.
Though the court in Wilkins [ v. Sec'y of Health & Human Servs., 925 F.2d 769, 774 (4th Cir. 1991)] indicated in a parenthetical that Borders' four-part test had been superseded by 42 U.S.C. § 405(g), the Fourth Circuit has continued to cite Borders as the authority on the requirements for new evidence when presented with a claim for remand based on new evidence, and the U.S. Supreme Court has not suggested that the Borders construction of § 405(g) is incorrect.” Ashton v. Astrue, C/A No. TMD 09-1107, 2010 WL 3199345, at *3 n.4 (D. Md. Aug.12, 2010) (citing cases); see Elkins v. Astrue, C/A No. 4:10-2648-TER, 2012 WL 602779, at *4 n.3 (D.S.C. Feb. 24, 2012).
While the plaintiff's newly submitted evidence cannot be considered in the instant matter, the plaintiff may be able to file a new claim with a new onset date where such evidence may be relevant. The undersigned, however, expresses no opinion as to the merits of any such claim.
Irritable Bowel Syndrome
The regulations note that a diagnosis alone does not establish an MDI. Instead, an MDI must “result from anatomical, physiological, or psychological abnormalities that can be shown by medically acceptable clinical and laboratory diagnostic techniques” and “must be established by objective medical evidence from an acceptable medical source.” 20 C.F.R. § 404.1521. In evaluating the plaintiff's IBS (as well as reflux), the ALJ noted:
the treatment records do not reflect a diagnosis or significant treatment history for these impairments (Exhibit 11F page 8, page 36 and page 38). There is no indication from the evidence in the record that [the plaintiff] received more than 12 months of treatment for either of these impairments or that a healthcare provider ever diagnosed her with IBS (Exhibit 10F page 8, page 36).(Tr. 22). As noted, the plaintiff argues that her IBS should have been found to be an MDI. (docs. 11; 24). The undersigned disagrees. As an initial matter, as noted by the ALJ, the record contains no evidence establishing IBS as an MDI. For example, during the administrative hearing, counsel for the plaintiff noted that the plaintiff's medical records mentioned IBS in two places as a diagnosis, but conceded that the record contained no specific medical treatment or notations that the plaintiff required care for IBS during the relevant period (Tr. 44-46). Indeed, neither the function report completed by the plaintiff (dated before the alleged onset date) (Tr. 240-47) nor the function report completed by the plaintiff's friend Sherrie Smith (Tr. 292-300) mention IBS or frequent trips to the restroom as being the basis for the plaintiff's inability to work. Likewise, the plaintiff did not mention any problems with IBS during her one treatment visit with Jeffrey Nations, M.D., during the relevant period (Tr. 392-94). Further, although the plaintiff reported to Mary Hodges, NP, on July 4, 2020, with diarrhea and blood in her stool (Tr. 491-95), by July 29, 2020, the plaintiff reported to Keith Turner, PA, that her stomach pain and blood in stool had improved (Tr. 466). The remainder of the plaintiff's treatment records do not contain mention of diarrhea, IBS, stomach pain, or blood in stool. Indeed, during the consultative examination on December 3, 2020, the plaintiff reported to psychologist Brian Keith that she had no other medical conditions (aside from her mental impairments) (Tr. 483-86). As outlined by the ALJ, based on the lack of diagnostic testing, treatment visits, or prescribed treatment for IBS during the relevant period, the plaintiff's IBS was not an MDI. This conclusion is supported by substantial evidence, without legal error, and should be affirmed.
Residual Functional Capacity
The regulations provide that a claimant's RFC is the most that she can still do despite her limitations. 20 C.F.R. § 404.1545(a). It is the ALJ's responsibility to make the RFC assessment, id. § 404.1546(c), and the ALJ does so by considering all of the relevant medical and other evidence in the record, id. § 404.1545(a)(3).
Social Security Ruling (“SSR”) 96-8p provides in pertinent part:
The RFC 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 in paragraph (b), (c), and (d) of 20 C.F.R. §§ 404.1545 and 416.945. Only after that may [the] RFC be expressed in terms of the exertional levels of work, sedentary, light, medium, heavy, and very heavy.SSR 96-8p, 1996 WL 374184, at *1. The ruling further provides:
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.Id. at *7 (footnote omitted). Further, “[t]he RFC assessment must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence.” Id. Moreover, “[t]he RFC assessment must always consider and address medical source opinions. If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted.” Id.
As noted above, in evaluating the plaintiff's case, the ALJ set forth the following RFC assessment:
After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: she can never climb ropes, ladders, or scaffolds. She can frequently climb ramps and stairs. She can have occasional exposure to hazards, dangerous moving machinery, and unprotected heights. She can perform simple, and detailed work with frequent judgment required on the job and occasional changes in the work setting. She can perform work with a reasoning level up to and including three, which can be performed on a sustained basis for eight hours a day, five days a week, in two-hour increments with normal breaks for an eight-hour day. She can have occasional contact with the public.(Tr. 24). The ALJ then provided a detailed discussion of the RFC in light of the record evidence (Tr. 24-32). Liberally construed, the plaintiff argues that the ALJ's mental RFC assessment does not account for her difficulty concentrating and being around others (docs. 11; 24). The undersigned disagrees.
In this case, the ALJ found that the plaintiff had “moderate” limitations in interacting with others and in concentration, persistence, or pace, noting:
The [plaintiff] reported having problems interacting and socializing with others. During some examinations, she had an
anxious or depressed mood or affect (Exhibit 11F page 2, page 8: Exhibit 6F page 2: Exhibit 10F page 10, page 16, page 31, and page 38). However, the treatment notes indicate that she was calm, cooperative and pleasant, with normal mood and affect during most other examinations (Exhibit 13F page 2: Exhibit 11F page 5: Exhibit 5F page 2: Exhibit 3F page 6: Exhibit 2F page 5, page 14 and page 16). The treatment notes also indicate that the [plaintiff] did not appear to be in distress or agitated during most examinations (Exhibit 2F page 7, page 18: Exhibit 1F page 5, page 7 and page 14). Furthermore, she routinely denied experiencing suicidal or homicidal ideations during most examinations (Exhibit 1F page 3, page 9: Exhibit 2F page 11: Exhibit 3F page 4: Exhibit 5F page 3: Exhibit 6F page 2: Exhibit 10F page 36: Exhibit 11F page 5). She also denied having problems getting along with family or friends and reported getting along fine with authority figures (Exhibit 1E pages 6 - 7). As such, I find moderate limitation[s] in this area.
. . . . The [plaintiff] reported having problems with concentrating (Exhibit IE page 6). During some examinations, she exhibited or reported concentration problems (Exhibit 1F page 9, page 15). However, the objective record contains little evidence of significant or marked concentration or pace deficiencies (Exhibit 1F: Exhibit 2F: Exhibit 3F: Exhibit 5F: Exhibit 6F: Exhibit 10F: Exhibit 11F: Exhibit 13F). Additionally, the treatment notes indicate that the [plaintiff] was alert and oriented to person, place, and time and that her attention, cognition, and concentration were intact during most other examinations (Exhibit 6[F] page 2: Exhibit 5F page 9: Exhibit 11F page 16: Exhibit 1F page 10). She further reported that she could follow written instructions (Exhibit 1E page 6). As such, I find only moderate limitations in this area.(Tr. 23).
Here, the ALJ's decision contains a detailed explanation of his consideration of the plaintiff's impairments in determining the plaintiff's mental RFC. For example, although the ALJ noted that the record evidence was not entirely consistent with the plaintiff's reported attention, concentration, and social interaction difficulties, he provided mental RFC limitations (in part) to account for the plaintiff's subjective reports of difficulty concentrating and being around people (Tr. 25). Indeed, Mr. Turner, the plaintiff's treating mental health provider, specifically noted that the plaintiff had normal attention and concentration and a cooperative attitude upon his initial examination of the plaintiff on September 26, 2019 (Tr. 473-74). Mr. Turner's remaining treatment notes recorded an anxious or depressed mood/affect at times, but regularly noted normal appearance (unless it was a telehealth visit and not marked), normal speech (with mildly slow speech marked on one occasion), normal behavior, that the plaintiff was alert and oriented, and that the plaintiff had an intact memory (Tr. 466, 467, 468, 469, 470, 471, 483-84, 540, 541, 542, 543, 544, 545). These relatively benign examination findings by the plaintiff's mental health provider, as noted by the ALJ, did not support additional limitations than provided for in the mental RFC assessment.
The ALJ went on to analyze the medical source statement provided by Mr. Turner, wherein he opined that the plaintiff would be off task more than 25% of the workday, could maintain concentration for less than 15 minutes, and would miss more than four days of work per month, but did not opine any social interaction limitations (Tr. 559). The ALJ found Mr. Turner's opined limitations unpersuasive in light of Mr. Turner's treatment records (as outlined above) and the other record evidence (Tr. 30-31). For example, Mr. Turner's opinions were included on a check-box form with little explanation, and such forms have been recognized as having limited probative value. Freeman v. Colvin, C/A No. 7:14-cv-00199, 2015 WL 5056734, at *4 (W.D. Va. Aug. 26, 2015) (citing Leonard v. Astrue, C/A No. 2:11-cv-00048, 2012 WL 4404508, at *4 (W.D. Va. Sept. 25, 2012)); see also Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir.1993) (“Such check-the-box assessments without explanatory comments are not entitled to great weight, even when completed by a treating physician.”)). Additionally, as noted by the ALJ, Mr. Turner's opinions were not supported by his treatment records, which routinely reported mostly benign examination findings, an improvement in the plaintiff's symptoms, as well as that conservative treatment modalities continued to be effective to treat the plaintiff (Tr. 30-31).
Moreover, as noted by the ALJ, Mr. Turner's opinions were inconsistent with other record evidence. For example, the plaintiff had normal examination findings upon presentment to Dr. Nations on December 17, 2019, and her anxiety and depression were noted as stable (Tr. 392-94). Likewise, upon presentment to urgent care on September 15, 2021, the plaintiff only complained of an earache, and the plaintiff was fully oriented, had normal behavior, normal mood, normal affect, and normal mental status (Tr. 564-66). Likewise, upon presentment to Dr. Keith, the plaintiff reported depression and anxiety causing difficulty concentrating and being around people, but also reported that she was able to drive, do light housework, go grocery shopping, and manage her own finances (Tr. 483-86). Dr. Keith noted that the plaintiff was alert and attentive, had coherent and linear dialogue, and adequate concentration (Tr. 484-85). Dr. Keith also indicated that the plaintiff was pleasant and able to interact appropriately with him during the examination, but opined that the plaintiff may have some difficulty being around others, based upon her self statements (not his examination findings) (Tr. 485). Dr. Keith further noted that the plaintiff could complete simple tasks and instructions because she was alert and oriented during the examination and remained attentive and on task (Tr. 485). The ALJ explained that he found these opinions persuasive (as reflected in the mental RFC assessment) because they were supported by Dr. Keith's findings and consistent with other record evidence (Tr. 29-30). In light of the plaintiff's continuing conservative treatment and relatively benign examination findings, the undersigned finds that substantial evidence supports the ALJ's conclusion that the plaintiff's mental impairment limitations could be accounted for in the mental RFC assessment set forth in the ALJ's decision.
The Court of Appeals for the Fourth Circuit has held that while an RFC assessment must include a narrative describing how the evidence supports the ALJ's conclusions, there is no particular format or language that must be utilized, so long as the decision permits meaningful judicial review. See Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016). Here, the ALJ's decision, with its detailed discussion of the plaintiff's impairments and the record evidence, permits such review. As such, the undersigned finds that the ALJ's mental RFC assessment is supported by substantial evidence and free from legal error and should be affirmed.
CONCLUSION AND RECOMMENDATION
The Commissioner's decision is based upon substantial evidence and is free of legal error. Now, therefore, based upon the foregoing, IT IS RECOMMENDED that the Commissioner's decision be affirmed.
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, Room 2300 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).