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finding any error in considering the claimant's obesity was is harmless where the record failed to demonstrate how obesity further limited the claimant's abilities beyond the RFC determined by the ALJ
Summary of this case from Lilley v. SaulOpinion
No. 5:19-CV-210-FL
03-16-2020
AMANDA WINSTEAD, Plaintiff/Claimant, v. ANDREW SAUL, Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-20, -26] pursuant to Fed. R. Civ. P. 12(c). Claimant Amanda Winstead ("Claimant") filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of her application for a period of disability and Disability Insurance Benefits ("DIB"). Claimant filed a response to the Commissioner's motion, [DE-28], the time for further briefing has expired, and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Claimant's Motion for Judgment on the Pleadings be allowed, Defendant's Motion for Judgment on the Pleadings be denied, and the matter be remanded to the Commissioner for further proceedings.
I. STATEMENT OF THE CASE
Claimant protectively filed an application for a period of disability and DIB on December 19, 2014, alleging disability beginning November 1, 2012. (R. 198, 481-84). Her claim was denied initially and upon reconsideration. (R. 198, 378-408). A hearing before the Administrative Law Judge ("ALJ") was held on February 27, 2018, at which Claimant, represented by counsel, and a vocational expert ("VE") appeared and testified. (R. 198, 216-47). At the hearing, Claimant amended her alleged onset date to December 19, 2014. (R. 198, 219, 499). On June 6, 2018, the ALJ issued a decision denying Claimant's request for benefits. (R. 195-215). The Appeals Council denied Claimant's request for review on March 16, 2019. (R. 1-7). Claimant then filed a complaint in this court seeking review of the now-final administrative decision.
II. STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act ("Act"), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). "The findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive . . . ." 42 U.S.C. § 405(g). Substantial evidence is "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a "large or considerable amount of evidence," Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is "more than a mere scintilla . . . and somewhat less than a preponderance." Laws, 368 F.2d at 642. "In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the "substantial evidence" inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. § 404.1520 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in "substantial gainful activity," i.e., currently working; and (2) must have a "severe" impairment that (3) meets or exceeds [in severity] the "listings" of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity to (4) perform . . . past work or (5) any other work.Albright v. Comm'r of the SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). "If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps." Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy that the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the "special technique" described in 20 C.F.R. § 404.1520a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. Id. § 404.1520a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the "special technique." Id. § 404.1520a(e)(3).
In this case, Claimant alleges the ALJ erred by (1) ignoring facts in evidence that contradicted the ALJ's conclusion, (2) not properly considering obesity as an impairment in conformity with S.S.R. 02-1p, and (3) selectively using the hearing record in order to support his conclusions. Pl.'s Mem. [DE-21] at 10-25.
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Claimant "not disabled" as defined in the Act. At step one, the ALJ found Claimant had not engaged in substantial gainful employment from the amended alleged onset date of December 19, 2014 through the date last insured of December 31, 2017. (R. 200). Next, the ALJ determined Claimant had the severe impairments of low back dysfunction/chronic pain, sacroiliitis, sleep apnea, chronic headaches, fibromyalgia, chronic pain syndrome, obesity, and depressive disorder, and the non-severe impairments of hypertension, gastroesophageal reflux disease, right shoulder bursitis, and irritable bowel syndrome. (R. 201). At step three, the ALJ concluded these impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 201-03). Applying the technique prescribed by the regulations, the ALJ found that Claimant's mental impairments have resulted in mild limitations in understanding, remembering, or applying information; interacting with others; and adapting or managing oneself, and a moderate limitation in concentrating, persisting, or maintaining pace. (R. 202).
Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding Claimant had the ability to perform light work with the following limitations:
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 an individual can perform light work, he or she can also perform sedentary work, unless there are additional limiting factors such as the loss of fine dexterity or the inability to sit for long periods of time. 20 C.F.R. § 404.1567(b). --------
the claimant would be precluded from working at heights or around moving dangerous machinery; would be restricted to frequent, but not constant, use of the hands for reaching, handling, and fingering; and would be restricted to
understanding, remembering, and carrying out simple instructions at a reasoning level of two and three as that term is defined in the Dictionary of Occupational Titles (DOT). Furthermore, the claimant would have the ability to concentrate, persist, and maintain pace sufficient enough to follow those instructions over an eight-hour workday, at two-hour intervals, with normal breaks, but would be unable to perform high stress work that involves assembly line pace or that requires production quotas.(R. 203-08). In making this assessment, the ALJ found Claimant's statements about the intensity, persistence, and limiting effects of her symptoms were not entirely consistent with the medical and other evidence in the record. (R. 204). At step four, the ALJ concluded Claimant did not have the RFC to perform the requirements of her past relevant work. (R. 208-09). Nonetheless, at step five, upon considering Claimant's age, education, work experience, and RFC, the ALJ determined Claimant was capable of adjusting to the demands of other employment opportunities that exist in significant numbers in the national economy through the date last insured. (R. 209-10).
V. DISCUSSION
A. The RFC Determination
An individual's RFC is the capacity he possesses despite the limitations caused by physical or mental impairments. 20 C.F.R. § 404.1545(a)(1); see also S.S.R. 96-8p, 1996 WL 374184, at *1 (July 2, 1996). "[T]he residual functional capacity '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' listed in the regulations." Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting S.S.R. 96-8p). The RFC is based on all relevant medical and other evidence in the record and may include a claimant's own description of limitations arising from alleged symptoms. 20 C.F.R. § 404.1545(a)(3); see also S.S.R. 96-8p, 1996 WL 374184, at *5. Where a claimant has numerous impairments, including non-severe impairments, the ALJ must consider their cumulative effect in making a disability determination. 42 U.S.C. § 423(d)(2)(B); see Hines v. Brown, 872 F.2d 56, 59 (4th Cir. 1989) ("[I]n determining whether an individual's impairments are of sufficient severity to prohibit basic work related activities, an ALJ must consider the combined effect of a claimant's impairments.") (citations omitted). The ALJ has sufficiently considered the combined effects of a claimant's impairments when each is separately discussed by the ALJ and the ALJ also discusses a claimant's complaints and activities. Baldwin v. Barnhart, 444 F. Supp. 2d 457, 465 (E.D.N.C. 2005) (citations omitted). The 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" and also "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)." S.S.R. 96-8p, 1996 WL 374184, at *7; see also Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000) (observing that the ALJ "must build an accurate and logical bridge from the evidence to his conclusion").
1. "Cherrypicking" Evidence
Claimant contends the ALJ ignored facts in evidence that contradicted his conclusion and selectively used the hearing record in order to support his conclusions. Pl.'s Mem. [DE-21] at 10-18, 24-25. "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." Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017) (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)). Further, " [t]he ALJ's failure to 'build an accurate and logical bridge from the evidence to his conclusion' constitutes reversible error." Id. at 868 (quoting Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016)).
Claimant first takes issue with the ALJ's statement that "[a]fter giving birth in January 2016, the record notes little to no care for the claimant's fibromyalgia for nearly a year, until the claimant began treatment with EmergeOrtho in January 2017." (R. 205); Pl.'s Mem. [DE-21] at 11-13. The ALJ's statement, appearing in the RFC discussion where he summarized Claimant's treatment for fibromyalgia, (R. 204-06), is accurate. Claimant admits she "did not get as much treatment for fibromyalgia during this period relative to the treatment during the rest of the relevant period," but notes that on February 8, 2016, she described during a consultative psychological evaluation "difficulties attributed to fibromyalgia, including hand cramps, sleep apnea, back and neck pain, chronic fatigue, pain, and trouble ambulating." Pl.'s Mem. [DE-21] at 11-12 (footnote omitted). Claimant then goes on to discuss treatment she received for fibromyalgia after January 2017. Id. at 12-13. The ALJ discussed Claimant's fibromyalgia treatment both before and after 2016. (R. 204-06). The ALJ found that Claimant's treatment significantly improved her fibromyalgia symptoms, and there is no indication that the ALJ used Claimant's lack of treatment during the one-year period after her pregnancy to justify the denial of benefits. (R. 205-06). Accordingly, the ALJ's statement regarding Claimant's lack of fibromyalgia treatment during 2016 was not error where the ALJ did not give it undue weight and also discussed Claimant's treatment over the entire relevant period.
Next, Claimant takes issue with the ALJ's statement that she "was discharged from physical therapy after attending only four of seven visits with minimal participation at the visits she did attend." (R. 205); Pl.'s Mem. [DE-21] at 13-14. Again, the ALJ's statement appears in the summary of Claimant's fibromyalgia treatment, (R. 204-06), and is accurate. The physical therapy treatment notes indicate Claimant attended four of seven weekly visits. (R. 2059-78). After her first two physical therapy sessions on February 24 and March 3, 2017, Claimant missed her March 10 session because she was "really sore" and could not drive and missed her March 17 session due to a neck spasm. (R. 2059-67). At her March 24 session, Claimant explained she has muscle spasms a couple of times a year, but usually not to that degree, and had received an injection that helped. (R. 2068). Claimant did not perform several of the exercises due to pain. (R. 2069). Claimant also cancelled her March 31 session because she was in too much pain. (R. 2071). At Claimant's final physical therapy session on April 13, she again did not perform several of the exercises due to pain and declined offered treatment modalities, including cryotherapy, electric stimulation, and mechanical traction. (R. 2073). Claimant was discharged "due to lack of significant progress and patient request," and she indicated she would continue home exercises, hoped that her pain would decrease with upcoming injections, and might resume physical therapy in the future "if her pain levels decrease and she desires." (R. 2074). While Claimant argues she was not discharged from physical therapy due to missing sessions or failing to participate, Pl.'s Mem. [DE-21] at 13, the ALJ never indicated those were reasons she was discharged. The ALJ correctly noted that she was discharged having attended four or seven sessions, and the records bear out that she had minimal participation at her last two sessions. (R. 2069, 2073). Importantly, the ALJ need not discuss every medical record in detail, Reid v. Comm'r of Soc. Sec., 769 F.3d 861,865 (4th Cir. 2014), and the ALJ's discussion of Claimant's fibromyalgia indicates his reasoning in finding her fibromyalgia was not disabling was based on her improvement from other treatments, not her limited participation in physical therapy. (R. 205-06). Accordingly, the ALJ's consideration of Claimant's physical therapy treatment was not error.
Claimant also takes issue with the ALJ's stated rationale—improvement with treatment and lack of symptoms on physical examination—for finding her not disabled due to her fibromyalgia. Pl.'s Mem. [DE-21] at 14-18. After discussing the medical evidence related to Claimant's fibromyalgia treatment, the ALJ explained as follows:
The medical evidence of record demonstrates that the claimant received significant improvement in her fibromyalgia symptoms with her treatment regimen. The claimant's physical exams performed by her primary care physician routinely demonstrated full, upright posture, smooth and symmetric gait, no focal muscle tenderness, and normal 5/5 strength (Ex. 18F, pp. 168, 216, 242, 343). At her psychological consultative exam, the claimant demonstrated good posture, normal gait, and no unusual physical features (Ex. 11F). The claimant reported improvement from the Lidocaine patch, noting 50% improvement in her hip pain (Ex. 20F, p. 94). She also reported greater than 20% improvement from the cervical paraspinal trigger point injections and 80% improvement in her hip pain from the sacroiliac injections (Ex. 20F, pp. 83-84). At her June 2017 visits with Dr. Gaught, the claimant reported a pain scale rating of only 4/10 (Ex. 20F, pp. 82).(R. 205-06).
Fibromyalgia causes inflammation in the connective tissue of "muscles, tendons, ligaments, and other tissue." Slaydon v. Saul, No. 7:18-CV-54-FL, 2019 WL 3660573, at *3 (E.D.N.C. Aug. 6, 2019) (quoting Benecke v. Barnhart, 379 F.3d 587, 589 (9th Cir. 2004)). Its symptoms include "chronic widespread aching and stiffness, involving particularly the neck, shoulders, back, and hips, which is aggravated by the use of the affected muscles." Id. (quoting Tilley v. Astrue, 580 F.3d 675, 681 (8th Cir. 2009)). This court has previously recognized that "objective tests are of little relevance in determining [fibromyalgia's] existence or severity." Batson v. Colvin, No. 7:14-CV-48-D, 2015 WL 1000791, at *11 (E.D.N.C. Mar. 5, 2015) (quoting McGlothlen v. Astrue, No. 7:11-CV-148-RJ, 2012 WL 3647411, at *9 (E.D.N.C. Aug. 23, 2012)). "[T]he absence of swelling joints or other orthopedic and neurologic deficits 'is no more indicative that the patient's fibromyalgia is not disabling than the absence of a headache is an indication that a patient's prostate cancer is not advanced.'" Slaydon, 2019 WL 3660573, at *3 (quoting Green-Younger v. Barnhart, 335 F.3d 99, 109 (2d Cir. 2003)); see Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996) (stating that "of greatest importance to disability law, [fibromyalgia's] symptoms are entirely subjective").
Here, the ALJ cites Claimant's normal posture, gait, and strength and lack of "unusual physical features" to support his conclusion that her treatment provided significant improvement in her fibromyalgia symptoms. (R. 205). However, the absence of these symptoms is irrelevant to the evaluation of fibromyalgia. See Preston v. Sec'y of Health & Human Servs., 854 F.2d 815, 820 (6th Cir. 1988) (explaining fibromyalgia patients generally "manifest normal muscle strength and neurological reactions and have a full range of motion"); Slaydon, 2019 WL 3660573, at *4 (finding treatment notes regarding range of motion, synovitis, strength, and gait were not substantial evidence supporting discounting a medical opinion that the claimant was disabled due to fibromyalgia). A lack of muscle tenderness would be relevant because "the pain caused by fibromyalgia, [] can only be 'objectively measured' by assessing plaintiff's tender points." Slaydon, 2019 WL 3660573, at *4. The treatment notes cited by the ALJ indicate that Claimant lacked focal muscle tenderness on one occasion, July 22, 2015. (R. 205, 1346) (citing Ex. 18F, pp. 168 (R. 1272), 216 (R. 1320), 242 (R. 1346), 343 (R. 1447)). In contrast, there are many treatment notes in the record that reflect instances of tenderness on examination. See, e.g., (R. 1911, 1915, 1925) (March 23, June 15 and 26, 2017 treatment notes indicating tenderness to palpation over bilateral PSIS (posterior superior iliac spine) and/or significant tenderness to palpation of cervical paraspinals and upper trapezial musculature); (R. 1934) (February 9, 2017 treatment note indicating "diffuse tender points throughout body, upper and lower extremi[ti]es, at joints/myotendinous junctions, but also in mid portion of long bones," "significant tenderness to palpation over total spine paraspinal musculature, rhomboids, trapezius, quadratus lumborum, gluteal musculature," "tenderness to palpation over trochanteric bursae bilaterally," and "tenderness over PSIS bilaterally"); (R. 1939) (January 24, 2017 treatment note indicating multiple tender points, including the gluteus medius and piriformis bilaterally and the ASIS, PSIS and greater trochanter bilaterally); (R. 2040-43) (January 27, February 29, and April 25, 2016 treatment notes indicating tenderness on palpation of the thoracic and cervical spine). Accordingly, the evidence cited by the ALJ regarding Claimant's posture, gait, strength, and lack of muscle tenderness do not provide substantial evidence for his decision that Claimant's fibromyalgia symptoms significantly improved with treatment.
The ALJ also relied on Claimant's improvement with the use of a Lidocaine patch and trigger point injections. (R. 205-06). Specifically, the ALJ stated as follows:
The claimant reported improvement from the Lidocaine patch, noting 50% improvement in her hip pain (Ex. 20F, p. 94). She also reported greater than 20% improvement from the cervical paraspinal trigger point injections and 80% improvement in her hip pain from the sacroiliac injections (Ex. 20F, pp. 83-84). At her June 2017 visits with Dr. Gaught, the claimant reported a pain scale rating of only 4/10 (Ex. 20F, pp. 82).Id. Claimant argues that these treatments provided only short term pain relief rather than permanent improvement. Pl.'s Mem. [DE-21] at 15-18.
On March 23, 2017, Claimant reported the Lidocaine patches helped her hip pain and reduced it by 50%, although she was only allowed one patch per day and needed two, and Dr. Gaught increased her prescription to two patches per day. (R. 1992-96). Claimant also reported pain in her neck, back, buttocks, and arms; she rated her overall pain a 7/10 in severity; and she was scheduled for nerve block and joint injections. (R. 1994, 1996). On April 19, 2017, Claimant received an upper cervical paraspinal trigger point injection and a greater occipital nerve block, which she later reported improved her pain by 20% and explained that most improvement was when she was using the occipivot machine or applying pressure to the area. (R. 1984, 1990-92). On April 27, 2017, a clinical exam was consistent with sacroiliac joint pain and inflammation, and Claimant received bilateral sacroiliac joint injections for bilateral buttock pain, which she later reported improved her pain by 80% for three weeks and made a "significant difference in her functional ability to care for some, go grocery shopping, do housework, and drive." (R. 1984, 1987-90). However, on June 15, 2017, Claimant reported her sacroiliac joint pain was getting worse; her pain was 4/10 in severity; sacroiliac joint testing produced positive FABER, gaenslens, and distraction tests and significant tenderness to palpation over the bilateral PSIS; and the lidocaine patches typically relieved her pain relatively well during the daytime but she had recently started to experience pain even with the lidocaine patches and was experiencing sleep interruption. (R. 1983-85). Claimant requested another sacroiliac joint injection, because it significantly improved her pain and function for three to four weeks, and her doctor planned to repeat the injections in two months after a pelvic MRI. (R. 1987). On June 26, 2017, Claimant reported her hip, back, and SI joint pain was unchanged with a 4/10 severity, it was aggravated by walking and prolonged sitting, it was alleviated by rest, lying down, and lidocaine patches, and her examination results were the same as on June 15. (R. 1909-13). Claimant's pelvic MRI was normal, and she was scheduled for repeat injections, which the doctor noted were the "only thing that has really helped improve her function." (R. 1981-82).
On July 7, 2017, Claimant received another round of bilateral sacroiliac joint injections. (R. 1976-79). On August 28, 2017, she received another lumbar medial branch nerve block. (R. 1974-76). It was noted that prior to injection her pain was a 7-8/10 with walking, a 3/10 with sitting, and most severe with lying supine on a hard surface, and after the procedure her pain was a 2/10. (R. 1976). Claimant called the following day and reported having eight hours of relief. Id. On September 13, 2017, Claimant received another lumbar medical branch nerve block. (R. 1971-74). Prior to the injection, she rated her right-sided pain a 5/10 in severity, and after the procedure, she walked around the parking lot and then reported her pain was a 1/10 in severity, which was "considerably better than baseline." (R. 1973). Due to the fact that Claimant had greater than 80% improvement and improved walking tolerance, a repeat injection was ordered. Id. The following week, on September 20, 2017, Claimant received another lumbar medical branch nerve block. (R. 1969-71). Prior to the procedure, she reported her pain was a 5/10 in severity, and she was scheduled for a follow-up in three to four weeks. (R. 1971).
A review of the relevant treatment records reveals that the ALJ's limited discussion failed to account for the longitudinal record, and the ALJ failed to discuss the temporary nature of relief Claimant received from the Lidocaine patches and injections and the waxing and waning of her pain. See S.S.R. 12-2p, 2012 WL 3104869, at *6 (July 25, 2012) ("[T]he symptoms of [fibromyalgia] can wax and wane so that a person may have 'bad days and good days.'"). Furthermore, the ALJ relied on limited portions of treatment notes to support his conclusion that Claimant experienced significant improvement in her fibromyalgia symptoms such that she could perform a reduced range of light work, but the ALJ ignored other portions of the treatment notes that were at odds with that conclusion. See Slaydon, 2019 WL 3660573, at *4 (finding error where the ALJ selectively quoted a treatment note indicating that medication to treat fibromyalgia "seemed to help" while ignoring that in the very same visit the claimant was noted to still have pain daily and rated her pain an eight on the pain scale). Such "cherrypicking" of the record is impermissible, and "[t]he ALJ's failure to 'build an accurate and logical bridge from the evidence to his conclusion' constitutes reversible error." Lewis, 858 F.3d at 868 (quoting Monroe, 826 F.3d at 189). Accordingly, it is recommended that the matter be remanded to the ALJ for further consideration of Claimant's fibromyalgia.
Finally, Claimant takes issue with the ALJ's reliance on evidence that she stopped working for reasons other than her allegedly disabling impairments to discount her subjective complaints. Pl.'s Mem. [DE-21] at 24-25; (R. 207). Claimant correctly points out that while she reported she stopped working on May 4, 2012 because her contract expired, she also stated that her condition was severe enough to keep her from working as of November 1, 2012, which was her initial alleged onset date. (R. 233, 501). It is unclear how the former statement, cited in isolation by the ALJ, undermines Claimant's credibility when considered in light of the later statement, particularly given the ALJ's determination that Claimant in fact was unable to perform her past work as a researcher through the date last insured. (R. 208-09). On remand, the ALJ should better explain his reasoning.
2. Considering Obesity in Conformity with S.S.R. 02-1p
Claimant contends the ALJ failed to properly consider obesity as an impairment in conformity with S.S.R. 02-1p. Pl.'s Mem. [DE-21] at 18-24. Under S.S.R. 02-1p, obesity will be considered in determining whether a claimant has a medically determinable impairment; whether the impairment is severe; whether the impairment meets or equals a listing; and whether the impairment prevents the claimant from doing work. S.S.R. 02-1p, 2002 WL 34686281, at *3 (Sept. 12, 2002).
At step two, the ALJ determined that Claimant's obesity was a severe impairment, and at step three, the ALJ stated that Claimant's obesity was evaluated pursuant to S.S.R. 02-1p. (R. 201). In formulating Claimant's RFC, the ALJ stated as follows:
The claimant's body mass index ranged from 36.63 kg/m2 to 38.7 kg/m2 (Ex. 18F, p. 219; 20F, p. 85). This is classified as obese under the Clinical Guidelines issued by the National Institutes of Health referenced in SSR 02-01p. SSR 02-01p requires Administrative Law Judges to consider obesity in determining whether claimants have medically determinable impairments that are severe, whether those impairments meet or equal any listing, and finally in determining residual functional capacity. As indicated in SSR 02-01p, obesity may have an adverse impact upon coexisting impairments. For example, obesity may affect the cardiovascular and respiratory systems, making it harder for the chest and lungs to expand and imposing a greater burden upon the heart. Someone with obesity and arthritis affecting a weight-bearing joint may have more pain and limitation than
might be expected from arthritis alone. In addition, obesity may limit an individual's ability to sustain activity on a regular and continuing basis during an eight-hour day, five-day week or equivalent schedule. These considerations have been taken into account in reaching the conclusions herein.(R. 204).
Claimant cites records indicating her impairments, including fatigue, back pain, joint pain, and depressed mood, may be related to her obesity and that if she could lose weight her sleep apnea, chronic pain, and blood pressure might improve. Pl.'s Mem. [DE-21] at 21-22 (citing R. 638, 642, 644, 812). While the record is replete with references to Claimant's obesity, there is very little evidence regarding the extent to which Claimant's obesity impacted her other conditions or functioning. See Condon v. Berryhill, No. 5:16-CV-950-FL, 2018 WL 1542235, at *3 (E.D.N.C. Mar. 29, 2018) (concluding the ALJ's failure to include obesity in the analysis was harmless error because there was no evidence in the record to support a finding that plaintiff's obesity exacerbated or imposed any limitations on her abilities and thus no way to demonstrate plaintiff was prejudiced by the error). The ALJ acknowledged Claimant's obesity and indicated he considered it in formulating the RFC. (R. 204). To the extent his analysis is lacking, the error is harmless where the record fails to demonstrate how obesity further limited Claimant's abilities beyond the RFC determined by the ALJ.
VI. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Claimant's Motion for Judgment on the Pleadings [DE-20] be ALLOWED, Defendant's Motion for Judgment on the Pleadings [DE-26] be DENIED, and the matter be remanded to the Commissioner for further proceedings.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until March 30, 2020 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C. Any response to objections shall be filed by within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985).
Submitted, the 16th day of March, 2020.
/s/_________
Robert B. Jones, Jr.
United States Magistrate Judge