Opinion
C. A. 9:21-cv-03735-TLW-MHC
01-26-2023
Julia E. Shue, Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
MOLLY H. CHERRY UNITED STATES MAGISTRATE JUDGE
Plaintiff filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the Administrative Law Judge's (ALJ's) final decision denying her claim for disability insurance benefits (DIB) under the Social Security Act (Act). This case was referred to the undersigned for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.). For the reasons that follow, the undersigned recommends that the ALJ's decision be remanded for further administrative action.
Citations to the record refer to the page numbers in the Social Security Administration Record. See ECF No. 4.
In March 2018, Plaintiff applied for DIB alleging disability as of January 1, 2005. R.pp. 265-68. The State agency responsible for disability determinations denied Plaintiff's claims initially on June 5, 2018, and upon reconsideration on November 5, 2018. R.pp. 79-107.
On April 16, 2019, a hearing was held before an ALJ, at which Plaintiff, who was represented by counsel, and an impartial vocational expert testified. R.pp. 59-78. At the hearing, Plaintiff amended her alleged disability onset date to December 31, 2012, which was also Plaintiff's date last insured. R.p. 65. On May 31, 2019, the ALJ issued a decision finding Plaintiff not disabled. R.pp. 111-19. The Appeals Council subsequently remanded Plaintiff's claim back to the ALJ for further administrative proceedings. R.pp. 125-27.
On remand, the ALJ held a telephonic hearing on April 7, 2021, where Plaintiff, represented by counsel, and an impartial vocational expert testified. R.pp. 31-58. On April 20, 2021, the ALJ issued a decision finding Plaintiff not disabled. R.pp. 15-25.
On September 9, 2021, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision final. R.pp. 1-3. This appeal followed.
Because this Court writes primarily for the parties who are familiar with the facts, the Court dispenses with a lengthy recitation of the medical history from the relevant period. To the extent specific records or information are relevant to or at issue in this case, they are addressed within the Discussion section below.
II. APPLICABLE LAW
A. Scope of Review
Jurisdiction of this Court is pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Under § 405(g), judicial review of a final decision regarding disability benefits is limited to determining (1) whether the factual findings are supported by substantial evidence, and (2) whether the correct legal standards were applied. 42 U.S.C. § 405(g); Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002) (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)). Accordingly, a reviewing court must uphold the final decision when “an ALJ has applied correct legal standards and the ALJ's factual findings are supported by substantial evidence.” Brown v. Comm r Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2017) (internal quotation marks omitted).
“Substantial evidence” is an evidentiary standard that is not high: it is “more than a mere scintilla” and means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). A reviewing court does not reweigh conflicts in evidence, make credibility determinations, or substitute its judgment for that of the ALJ. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ].” Id. (alteration in original) (internal quotation marks and citation omitted). However, this limited review does not mean the findings of an ALJ are to be mechanically accepted, as the “statutorily granted review contemplates more than an uncritical rubber stamping of the administrative action.” Howard v. Saul, 408 F.Supp.3d 721, 725-26 (D.S.C. 2019) (quoting Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969)).
B. Social Security Disability Evaluation Process
To be considered “disabled” within the meaning of the Social Security Act, a claimant must show that she has an impairment or combination of impairments which prevent her from engaging in all substantial gainful activity for which she is qualified by her age, education, experience, and functional capacity, and which has lasted or could reasonably be expected to last for a continuous period of not less than twelve months. See 42 U.S.C. § 423. The Social Security Administration established a five-step sequential procedure in order to evaluate whether an individual is disabled for purposes of receiving benefits. See 20 C.F.R. §§ 404.1520, 416.920; see also Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015) (outlining the questions asked in the five-step procedure). The burden rests with the claimant to make the necessary showings at each of the first four steps to prove disability. Mascio, 780 F.3d at 634-35. If the claimant fails to carry her burden, she is found not disabled. Lewis v. Berryhill, 858 F.3d 858, 861 (4th Cir. 2017). If the claimant is successful at each of the first four steps, the burden shifts to the Commissioner at step five. Id.
At the first step, the ALJ must determine whether the claimant has engaged in substantial gainful activity since her alleged disability onset date. 20 C.F.R. §§ 404.1520(b), 416.920(b). At step two, the ALJ determines whether the claimant has an impairment or combination of impairments that meet the regulations' severity and duration requirements. Id. §§ 404.1520(c), 416.920(c). At step three, the ALJ considers whether the severe impairment meets the criteria of an impairment listed in Appendix 1 of 20 C.F.R. part 404, subpart P (the “Listings”) or is equal to a listed impairment. If so, the claimant is automatically eligible for benefits; if not, before moving on to step four, the ALJ assesses the claimant's residual functional capacity (RFC). Id. §§ 404.1520(d), (e), 416.920(d), (e); Lewis, 858 F.3d at 861.
The RFC is “the most the claimant can still do despite physical and mental limitations that affect her ability to work.” Mascio, 780 F.3d at 635 (internal quotation marks and citations omitted).
At step four, the ALJ determines whether, despite the severe impairment, the claimant retains the RFC to perform her past relevant work. 20 C.F.R. §§ 404.1520(e), (f), 416.920(e), (f). If the ALJ finds the claimant capable of performing her past relevant work, she is not disabled. Id. §§ 404.1520(f), 416.920(f). If the exertion required to perform the claimant's past relevant work exceeds her RFC, then the ALJ goes on to the final step.
At step five, the burden of proof shifts to the Social Security Administration to show that the claimant can perform other jobs existing in significant numbers in the national economy, considering the claimant's age, education, work experience, and RFC. Id. §§ 404.1520(g), 416.920(g);Mascio, 780 F.3d at 634-35. Typically, the Commissioner offers this evidence through the testimony of a vocational expert answering hypotheticals that incorporate the claimant's limitations. Mascio, 780 F.3d at 635. “If the Commissioner meets her burden, the ALJ finds the claimant not disabled and denies the application for benefits.” Id.
III. ADMINISTRATIVE FINDINGS
The ALJ employed the statutorily-required five-step sequential evaluation process to determine whether Plaintiff was disabled as of December 31, 2012, which was both the alleged onset date and the date last insured. R.pp. 15-25. The ALJ found, in pertinent part:
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2012.
2. The claimant has not engaged in substantial gainful activity during the relevant period (20 CFR 404.1571 et seq.).
3. Through the date last insured, the claimant had the following severe impairments: degenerative disc disease of the cervical and lumbar spine, migraines, and obesity (20 CFR 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 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526)....
5. After careful consideration of the entire record, [the ALJ found] that, through the date last insured, the claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) with: occasional reaching overhead to the right, climbing ramps/stairs, stooping, kneeling, crouching, and crawling; no climbing ladders/ropes/scaffolds; no work at unprotected heights; occasional exposure to vibration; and, moderate noise exposure. She would be further limited to simple, routine, repetitive tasks with occasional public interaction....
6. Through the date last insured, the claimant was unable to perform any past relevant [work] (20 CFR 404.1565)....
7. The claimant was . . . 53 years old, which is defined as an individual closely approaching advanced age, on the date last insured (20 CFR 404.1563).
8. The claimant has at least a high school education (20 CFR 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 CFR 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 CFR 404.1569 and 404.1569(a))....
11. The claimant was not under a disability, as defined in the Social Security Act, at any time through December 31, 2012, the date last insured (20 CFR 404.1520(g)).R.pp. 17-25.
An impairment is “severe” if it significantly limits a claimant's physical or mental ability to do basic work activities. See Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987).
The ALJ also found that Plaintiff had the following non-severe medically determinable impairments: depression/anxiety. R.pp. 17-18
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.” 20 C.F.R. §§ 404.1567(b).
IV. DISCUSSION
Plaintiff contends that the ALJ committed reversible error because the ALJ failed to: (1) perform a function-by-function analysis, (2) consider all the evidence in the record in evaluating Plaintiff's migraines and her cervical and lumbar spine problems, (3) properly consider the effects of obesity on her functional capacity, and (4) properly evaluate Plaintiff's subjective symptomology. ECF No. 5 at 14-30. After careful review and consideration of the arguments presented, for the reasons set forth below, the undersigned finds that the ALJ's determinations regarding Plaintiff's subjective complaints are not subject to meaningful review, such that remand is warranted.
A. Subjective Complaints
Plaintiff alleges that the ALJ failed to properly evaluate her subjective complaints of pain and migraine symptoms. She argues that the ALJ failed to build an accurate and logical bridge from the evidence to his conclusion, failed to consider all the evidence in the record, and improperly evaluated her symptoms solely based on the objective medical evidence from a limited period of time. ECF No. 5 at 22-23, 25-30. The Commissioner contends the ALJ properly found that Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms, but that Plaintiff's statements concerning the intensity, persistence, and limiting effects of these symptoms were not entirely consistent with the record as a whole. ECF No. 6 at 14-18. The Commissioner further argues that the ALJ properly explained that the evidence showed Plaintiff's impairments comported with the limitations set forth in the RFC and did not warrant greater restrictions. Id.
A claimant's RFC, which represents “the most [she] can still do despite [her] limitations,” is determined by assessing all relevant evidence in the case record, including “all of the relevant medical and other evidence.” 20 C.F.R. §§ 404.1545(a)(1), (a)(3), 416.945(a)(1), (a)(3). The assessment must be based upon all of the relevant evidence, including the medical records, medical source opinions, and the individual's subjective allegations and description of her own limitations. 20 C.F.R. §§ 404.1546(c), 416.946(c).
Social Security Ruling 96-8p further requires that an ALJ's “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).” Titles II & XVI: Assessing Residual Functional Capacity in Initial Claims, SSR 96-8p, 1996 WL 374184, at *7 (S.S.A. July 2, 1996) (noting that the ALJ “must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved”). Moreover, the ALJ “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.” Id. Every conclusion reached by an ALJ when evaluating a claimant's RFC must be accompanied by “a narrative discussion describing [ ] the evidence” that supports it. Dowling v. Comm 'r of Soc. Sec. Admin., 986 F.3d 377, 387 (4th Cir. 2021) (quoting Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019)) (alteration in original); see Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (explaining that “the ALJ must both identify evidence that supports his conclusion and build an accurate and logical bridge from that evidence to his conclusion”) (internal quotation marks omitted) (emphasis in original). Thus, “a proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion.” Thomas, 916 F.3d at 311.
A claimant's statements are among the evidence the ALJ must consider and reconcile with the RFC assessment. “[A]n ALJ follows a two-step analysis when considering a claimant's subjective statements about impairments and symptoms.” Lewis, 858 F.3d at 865-66 (citing 20 C.F.R. §§ 404.1529(b)-(c), 416.929(b)-(c)). “First, the ALJ looks for objective medical evidence showing a condition that could reasonably produce the alleged symptoms.” Id. at 866 (citing 20 C.F.R. §§ 404.1529(b), 416.929(b)). The ALJ proceeds to the second step only if the claimant's impairments could reasonably produce the symptoms she alleges. See 20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1).
At the second step, the ALJ is required to “evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's ability to perform basic work activities.” Lewis, 858 F.3d at 866 (citing 20 C.F.R. §§ 404.1529(c), 416.929(c)). The ALJ must “evaluate whether the [claimant's] statements are consistent with objective medical evidence and the other evidence.”6 Soc. Sec. Ruling 16-3p: Titles II & XVI: Evaluation of Symptoms in Disability Claims, SSR 16-3P, 2017 WL 5180304, at *6 (S.S.A. Oct. 25, 2017). Importantly, the ALJ is not to evaluate the claimant's symptoms “based solely on objective medical evidence unless that objective medical evidence supports a finding that the individual is disabled.” SSR 16-3p, 2017 WL 5180304, at *5; see Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 98 (4th Cir. 2020) (“We also reiterate the long-standing law in our circuit that disability claimants are entitled to rely exclusively on subjective evidence to prove the severity, persistence, and limiting effects of their symptoms.”).
Pursuant to SSR 16-3p, the ALJ must explain which of the claimant's symptoms the ALJ found “consistent or inconsistent with the evidence in [the] record and how [the ALJ's] evaluation of the individual's symptoms led to [the ALJ's] conclusions.” 2017 WL 5180304, at *8. The ALJ must evaluate the “individual's symptoms considering all the evidence in [the] record.” Id.
B. The ALJ's Decision
The ALJ set out his RFC finding and then cited the two-part procedure for analyzing subjective complaints. R.p. 20. The ALJ next summarized Plaintiff's testimony as follows:
At the most recent hearing, the claimant testified that she is 67” tall and weighs 272 pounds. She is right handed. She stopped working as a cosmetologist because she
was having migraines 2-3 days a week. She was not receiving psychiatric treatment in 2012. She had difficulty sitting, standing, and performing repetitive hand movements. She also had difficulty reaching overhead. She did not look for other work because she enjoyed being a cosmetologist. She messed her son-in-law's hair up by cutting it shorter than he wanted. Other customers were complaining about her work. She was receiving treatment for neck, shoulder, and low back pain from the pain center. She had injured her right shoulder in a car accident and had stabbing pain. The pain was getting worse. She received injections in her shoulder and low back. She was prescribed opioid pain medication which made her sleepy. She had a bulging disc in her low back and dragged her foot. She could stand 15-20 minutes at a time. Walking and standing were unbearable at times. She could walk half of a block before experiencing pain. She could wash dishes and do laundry. She left the house 1-2 times a week. She felt groggy and restless after a migraine. She received a shot for her migraines once a month. She could walk from her house to the grocery store. She had issues with anxiety and depression, but she was not receiving treatment in 2012.R.p. 20. The ALJ also adopted by reference the summary of Plaintiff's testimony from her first hearing.7 R.pp. 20-21, 115. Then the ALJ found:
After careful consideration of the evidence, I find that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.
As for the claimant's statements about the intensity, persistence, and limiting
effects of his or her symptoms, they are inconsistent because they are not completely supported by the objective evidence as of the amended onset date/date last insured.
In evaluating the claimant's complaints, I note that the majority of the medical records either pre-date or follow her amended alleged onset date and date last insured of December 31, 2012. These records are marginally relevant to the claimant's claim for disability as they are chronologically distant from the claimant's amended alleged onset date and date last insured.R.p. 21. The ALJ then discussed one medical record from 2009 and some medical evidence from 2012 and 2013:
The record documents that the claimant has a history of chronic neck and back pain, migraines, and obesity. A cervical MRI in 2009 documented multilevel spondylosis. In 2012, she received treatment from the Nexis Pain Center. A note in August 2012 reported that she had received prior facet blocks and rhizotomy with reduction in pain, but she wanted to postpone further injections. She also acknowledged significant benefit with Baclofen. She was no longer taking Hydrocodone due to concern about long-term side effects. Dr. Trusharth Patel noted that the claimant's neck pain was controlled with her current regimen (Exhibit 2F). Dr. Anilkumar Pillai noted in October and December 2012 and March 2013 that the claimant had full range of motion of the spine without tenderness. Neurologic and musculoskeletal exams were intact (Exhibit 9F). Treatment notes from Smith Spinal Care Center in October and December 2012 and January and March 2013 noted the claimant's report that her pain was aggravated by walking, reaching, looking up/down, driving, and household chores. She acknowledged that she received pain relief from ice, adjustments, medication, stretching/exercise, and lying down. In April, May and July 2013, she reported that exercising prevented her pain level from getting worse (Exhibit 3F). Medication records document that the claimant was prescribed Topiramate, which can be taken for migraines, around the time of the amended onset date/date last insured (Exhibit 10F,19F). A treatment note from December 2012 also assessed the claimant with unspecified migraines with normal neurologic exam (Exhibit 9F). There is no indication that the claimant required emergency treatment or inpatient hospitalization for these conditions around the time of the amended alleged onset date/date last insured. In spite of her allegations of disabling pain, the claimant was not seeking additional treatment for pain including physical therapy, biofeedback, surgery, the use of a TENS unit, steroid injections, or chronic narcotics around the time of the amended alleged onset date/date last insured. Overall, this limited and conservative course of treatment is inconsistent with a level of severity that would have precluded the claimant from sustaining all work activity as of the amended alleged onset date/date last insured.
The doctors' own reports fail to reveal the type of significant clinical and laboratory abnormalities one would expect if the claimant were disabled as of the amended alleged onset date/date last insured. Specifically, exam in August 2012 revealed
near full range of motion of the neck with diffuse tenderness of the cervical spine and paraspinals. She had 5/5 motor strength and intact sensation. She had full range of motion of the lumbar spine with lumbar paraspinal tenderness. The extremities were normal (Exhibit 2F). X-rays of the hands in 2018 noted degenerative changes. X-rays of the cervical spine noted mild spondylosis at ¶ 6-7. X-rays of the left shoulder revealed mild AC joint changes. X-rays of the right shoulder were normal. X-rays of the lumbar spine revealed mild degenerative disc disease at ¶ 5-S1 (Exhibit 6F).R.pp. 21-22.
The ALJ then considered the assessments by the State Agency medical consultants, the opinions of the consultative examiners, and the opinion of a lay witness. R.pp. 20-23 (noting that “none of the claimant's medical sources have made any medical opinion regarding the claimant's functional limitations during the relevant period”). At the end of this discussion, the ALJ summarized his RFC assessment as follows:
In sum, as of the amended alleged onset date/date last insured, the claimant's severe impairments were degenerative disc disease of the cervical and lumbar spine, migraines, and obesity. The record lacks significant objective evidence regarding these impairments around the amended alleged onset date/date last insured. I do not find the claimant's representations of a limited ability to sit, stand, walk, reach, and use her hands, as well as allegations of pain in her neck, back, and shoulders to be totally persuasive. However, I have given the claimant the benefit of the doubt in limiting the amount she could sit, stand, walk, lift, carry, climb, crawl, stoop, kneel, crouch, and reach overhead, as well as by restricting her from work at unprotected heights or vibration. I have considered her migraines in limiting her exposure to vibration and noise. While I find her depression/anxiety to be non-severe at the time of the amended onset date/date last insured as she was not receiving any mental health treatment, I have considered her reported history of these conditions in limiting her to simple work with only occasional public interaction. However, I cannot find the claimant's allegations that she was incapable of all work activity to be consistent with the evidence as of the amended alleged onset date/date last insured.R.p. 23.
C. The ALJ's Lack of Analysis of the Limiting Effects of Plaintiff's Migraines Frustrates Meaningful Review.
Upon review, the undersigned agrees with Plaintiff that the ALJ failed to explain his analysis of Plaintiff's statements regarding the limiting effects of her migraine symptoms, including which symptoms the ALJ found “consistent or inconsistent with the evidence in [the] record and how [the ALJ's] evaluation of [Plaintiff's] symptoms led to [the ALJ's] conclusions.” See SSR 16-3p, 2017 WL 5180304, at *8. It also is not clear to the undersigned that the ALJ evaluated Plaintiff's migraine “symptoms considering all the evidence in [the] record.” Id. The undersigned concludes that the ALJ's lack of analysis and explanation frustrates meaningful appellate review, such that remand is warranted. See Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013) (“A necessary predicate to engaging in 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.”).
After summarizing Plaintiff's testimony, the ALJ just generally concluded that all of Plaintiff's “statements about the intensity, persistence, and limiting effects of . . . her symptoms . . . are inconsistent because they are not completely supported by the objective evidence as of the amended onset date/date last insured.” R.p. 20. Later in the decision, the ALJ explained that he did “not find the claimant's representations of a limited ability to sit, stand, walk, reach, and use her hands, as well as allegations of pain in her neck, back, and shoulders to be totally persuasive.” R.p. 23. He did not, however, make any determination regarding Plaintiff's representations related to the intensity, persistence, and limiting effects of her migraines, notwithstanding his summaries of Plaintiff's testimony noting her statements that she stopped working as a cosmetologist because she was having migraines 2-3 days a week, R.p. 20, and that she has migraines with nausea and vomiting that take 3-4 days from which to recover, R.p. 115.8
To the extent the ALJ made any determination at all regarding Plaintiff's statements related to migraine symptoms, it appears he dismissed them because “they are not completely supported by the objective evidence as of the amended onset date/date last insured.” R.p. 20. Plaintiff argues that it was error to discount Plaintiff's subjective symptoms of migraines based solely on the lack of objective evidence. The undersigned agrees. SSR 16-3p makes clear that the ALJ is not to evaluate the claimant's symptoms “based solely on objective medical evidence unless that objective medical evidence supports a finding that the individual is disabled.” SSR 16-3p, 2017 WL 5180304, at *5; see 20 C.F.R. § 404.1529(c) (explaining that the ALJ “will not reject your statements about the intensity and persistence of your pain or other symptoms or about the effect your symptoms have on your ability to work solely because the available objective medical evidence does not substantiate your statements”). Moreover, “disability claimants are entitled to rely exclusively on subjective evidence to prove the severity, persistence, and limiting effects of their symptoms.” Arakas, 983 F.3d at 98. Here, however, the ALJ appears to rely solely on objective medical evidence to discount Plaintiff's migraine symptoms, which effectively increased her burden of proof. See Lewis v. Berryhill, 858 F.3d 858, 866 (4th Cir. 2017) (finding that “the ALJ's determination that objective medical evidence was required to support [the claimant's] evidence of pain intensity improperly increased her burden of proof') (citing 20 C.F.R. § 404.1529(c)(2)).
Plaintiff also maintains that the ALJ erred by failing to consider all the evidence in the record, and she argues that the ALJ cherry-picked evidence to support his findings while ignoring 63 (“And my shoulders, the pain starts from the right, goes around to the left and then my neck, then becomes a migraine with nausea and vomiting. And that means I'm in the bed for several hours throwing up. And then when all that's over, it takes two to three days to get back onto working motion.”). In light of Plaintiff's testimony and the absence of explanation or analysis by the ALJ, it is unclear from the decision why the ALJ assessed a limitation for exposure to vibration and noise to account for Plaintiff's migraines. other evidence in the record. ECF No. 5 at 22-23. With respect to her migraines, Plaintiff points to numerous records from before 2012 and after 2013 that the ALJ does not discuss anywhere in the decision. The Commissioner, on the other hand, contends it was not error for the ALJ to focus on records from 2012 and 2013, given that the alleged disability onset date and the date last insured are both December 31, 2012. ECF No. 6 at 10, 17-18. Upon review, the undersigned is constrained to agree with Plaintiff.
For a claimant to establish eligibility for DIB, she must demonstrate two essential elements: (1) a disability, which is defined as an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than 12 months,” 42 U.S.C. § 423(d) (1)(A); and (2) a disability at the time the claimant has disability insurance status, id. § 423(a)(1)(A); 20 C.F.R. § 404.131. Thus, a claimant must establish the presence of a disability prior to the last day of her disability insurance status. Johnson v. Barnhart, 434 F.3d 650, 655-56 (4th Cir. 2005).
Although the claimant for DIB must establish the presence of a disability prior to her last date insured, medical evidence produced after the date last insured is generally admissible if such evidence “permits an inference of linkage with the claimant's pre-[date last insured] condition.” Bird v. Comm'r of Soc. Sec., 699 F.3d 337, 341 (4th Cir. 2012). Pursuant to Bird, “the Commissioner is obligated to consider medical evidence post the date last insured as long as ‘that evidence permits an inference of linkage with the claimant's pre-[date last insured] condition' and the failure to do so constitutes ‘an error of law.'” Foshee v. Astrue, No. CIV.A. 4:11-2912-RMG, 2013 WL 310657, at *3 (D.S.C. Jan. 25, 2013) (quoting Bird, 699 F.3d at 341-42). “Further, the ‘possibility of such a linkage . . . may be enhanced by lay observations of a claimant's condition during the relevant time period,' including testimony from the claimant herself.” Id. (quoting Bird, 699 F.3d at 341-42).
The decision of the ALJ focused predominantly on the Plaintiff's medical care from 2012 and 2013, the months immediately surrounding the alleged onset date/date last insured of December 31, 2012. The ALJ gave brief passing mention of an MRI image from 2009 and x-rays from 2018, but otherwise summarily dismissed the “majority” of the medical records as “marginally relevant to the claimant's claim for disability as they are chronologically distant from the claimant's amended alleged onset date and date last insured.” R.p. 21. With the exception of the 2018 x-rays, the ALJ did not discuss any treatment records from 2014 through 2021, notwithstanding that many records document ongoing treatment for her pre-date last insured impairments. See, e.g., R.pp. 854-59, 848-49, 845, 936-41, 1264-80. This evidence “permits an inference of linkage” with Plaintiff's pre-DLI conditions, such that the ALJ was obligated to give the evidence “retrospective consideration.” See Bird, 699 F.3d at 341-42; Foshee, 2013 WL 310657, at *3.
More troubling, however, is the ALJ's failure to discuss treatment records from before the date last insured. With respect to Plaintiff's migraines alone, the ALJ ignored multiple treatment records demonstrating Plaintiff's consistent complaints of migraine headaches accompanied by nausea and vomiting from the period before December 31, 2012. See, e.g., R.pp. 908-09 (February 23, 2009 follow-up note documenting Plaintiff's complaints of “left shoulder pain radiating up the back of her neck to her head causing her to have a headache,” followed by nausea and vomiting); R.p. 420 (September 2009 emergency record noting complaints of “nausea and vomiting for one week” and “dizziness and headache to back of head” beginning in the past week); R.pp. 572 (May 2010 self-assessment noting headaches); R.p. 510 (July 2010 follow-up note documenting medical history of migraine headaches); R.pp. 883-84 (May 17, 2012 treatment note documenting complaints of “acute, severe headache” and assessing Plaintiff as having “migraine unspecified without mention of intractable migraine without mention of status migrainosus”).
Plaintiff testified that she got two to three migraines a week, usually accompanied by nausea and vomiting, and that they would normally last about fourteen to fifteen hours R.pp. 4041, 50-51. At least some of the pre-date last insured treatment notes provide contemporaneous support for Plaintiff's hearing testimony that she had frequent migraines that were often triggered by shoulder and neck pain and followed by nausea and vomiting. Nonetheless, the ALJ did not discuss any of these records or explain whether he found Plaintiff's subjective statements to be consistent or inconsistent with these records. Rather, the ALJ confined his discussion of the medical evidence regarding migraines to one visit in December 2012 and a prescription record. See R.pp. 22.
Moreover, in assessing the RFC, the ALJ did not discuss whether Plaintiff would have any limitations for being off task or routinely absent, notwithstanding Plaintiff's testimony and subjective statements of the disabling effects of her frequent migraine headaches. At the hearing, the vocational expert testified that there would be no jobs available for a person who was off task for more than an hour per day in addition to regularly scheduled breaks, and that being off task for more than 10% of the day would be “work preclusive.” R.pp. 55, 57. The vocational expert also testified that being absent more than one day per month on a regular basis would be preclusive of competitive employment. Id. Thus, a finding of disability may result if the ALJ were to find that Plaintiff's limitations included being off task for more than 10% of the day or being absent more than one day per month on a regular basis.
The ALJ failed to adequately explain why he determined that the record as a whole was inconsistent with Plaintiff's allegations of disabling symptoms resulting from her migraines. See
Lewis, 858 F.3d at 869 (“An ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding.”) (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)). Moreover, although the ALJ cited applicable law, including 20 C.F.R. § 404.1529 and SSR 16-3p, it is unclear whether the ALJ considered any evidence besides objective medical evidence in discounting Plaintiff's subjective complaints of migraine symptoms. See 20 C.F.R. § 404.1529(c)(3); SSR 16-3p, 2017 WL 5180304, at *10 (providing that the ALJ's decision “must contain specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms”).
Without further explanation from the ALJ regarding how he reconciled any inconsistencies in the record and reached his conclusions, the Court is unable to conduct meaningful appellate review of the ALJ's decision, such that remand is warranted. See Cotter v. Harris, 642 F.2d 700, 706-07 (3d Cir. 1981) (listing cases remanded because of failure to provide explanation or reason for rejecting or not addressing relevant probative evidence). Although the ALJ may ultimately determine that Plaintiff retained the RFC to perform substantial gainful activity during the relevant time period, in order for this Court to uphold such a decision as supported by substantial evidence, the ALJ must properly consider and evaluate the evidence and explain his rationale for reaching the decision sufficient to build “an accurate and logical bridge from the evidence to [his] conclusions.” Arakas, 983 F.3d at 95 (internal quotation marks omitted); Bray v. Commissioner of Social Security Admin., 554 F.3d 1219, 1225 (9th Cir. 2009) (“Long-standing principles of administrative law require us to review the ALJ's decision based on the reasoning and factual findings offered by the ALJ-not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking.”). Thus, the undersigned recommends that this action be reversed and remanded to the Commissioner for further consideration and explanation of the ALJ's evaluation of Plaintiff's subjective complaints of migraine symptoms and how he arrived at Plaintiff's RFC, in light of all the evidence and applicable law.
D. Remaining allegations of error
Plaintiff also argues that the ALJ, when formulating the RFC, (1) did not properly evaluate her cervical and lumbar spine problems or the effects of her obesity, and (2) failed to properly perform a function-by-function analysis.
Because the undersigned has determined that the error in the ALJ's assessment of Plaintiff's subjective complaints warrants remand, the Court declines to further address these remaining claims of error. Upon remand however, the ALJ should take such claims of error into consideration. With respect to any remaining claims of error, the ALJ will be able to reconsider and re-evaluate the evidence in toto as part of the reconsideration. See Hancock v. Barnhart, 206 F.Supp.2d 757, 763 n.3 (W.D. Va. 2002) (noting the ALJ's prior decision has no preclusive effect, as it is vacated, and the new hearing is conducted de novo).
E. CONCLUSION
It is RECOMMENDED that the decision of the Commissioner be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative review.
The parties are directed to the next page for their rights to file objections to this recommendation.
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).