Opinion
Civil Action No. 8:18-cv-00985-RMG-JDA
04-11-2019
Lisa Adger, Plaintiff, v. Nancy A. Berryhill,, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court for a Report and Recommendation pursuant to Local Civil Rule 73.02(B)(2)(a), D.S.C., and 28 U.S.C. § 636(b)(1)(B). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of a final decision of the Commissioner of Social Security ("the Commissioner"), denying Plaintiff's claim for disability insurance benefits ("DIB"). For the reasons set forth below, it is recommended that the decision of the Commissioner be reversed and remanded for administrative action consistent with this recommendation, pursuant to sentence four of 42 U.S.C. § 405(g).
A Report and Recommendation is being filed in this case, in which one or both parties declined to consent to disposition by a magistrate judge.
PROCEDURAL HISTORY
In April 2014, Plaintiff filed an application for DIB, alleging an onset of disability date of March 7, 2014. [R. 245-46.] The claim was denied initially and on reconsideration by the Social Security Administration ("the Administration"). [R. 141-70, 176-79.] Plaintiff requested a hearing before an administrative law judge ("ALJ"), and, on January 20, 2017, ALJ Gregory M. Wilson conducted a de novo hearing on Plaintiff's claim. [R. 102-40.]
The ALJ issued a decision on February 22, 2017, finding Plaintiff not disabled. [R. 74-101.] At Step 1, the ALJ found Plaintiff met the insured status requirements of the Social Security Act ("the Act") through December 31, 2018, and had not engaged in substantial gainful activity since March 7, 2014, the alleged onset date. [R. 79, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had severe impairments of bursitis of the hip; status post-rotator cuff surgery; degenerative disc disease of the cervical and lumbar spine; diabetes mellitus; depression; and anxiety. [R. 80, Finding 3.] The ALJ also noted that Plaintiff had a non-severe impairment of obesity and that Plaintiff's reported carpal tunnel syndrome, diverticulitis, and heel spurs were non-medically determinable impairments because the medical evidence of record did not contain a diagnosis of these impairments from an acceptable medical source. [R. 80.] At Step 3, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 80, Finding 4.]
The five-step sequential analysis used to evaluate disability claims is discussed in the Applicable Law section, infra.
Before addressing Step 4, Plaintiff's ability to perform her past relevant work, the ALJ found Plaintiff retained the following residual functional capacity ("RFC"):
After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except the claimant can occasionally lift twenty pounds; frequently lift ten pounds; stand and walk two out of eight hours; sit six out of eight hours; occasionally push/pull with the upper extremity; occasionally push/pull with the lower extremity; occasionally climb, balance, stoop, kneel, crouch, and crawl; occasionally climb ladders, ropes, and scaffolds; frequently reach with the
left upper extremity; frequently reach overhead; avoid concentrated exposure to hazards; and never have contact with the public.[R. 83, Finding 5.] Based on this RFC finding, the ALJ determined at Step 4 that Plaintiff was unable to perform her past relevant work as an administrative assistant. [R. 93, Finding 6.] Considering Plaintiff's age, education, work experience, RFC, and the testimony of a vocational expert ("VE"), the ALJ found that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. [R. 94, Finding 10.] Accordingly, the ALJ found Plaintiff had not been under a disability, as defined by the Act, from March 7, 2014, through the date of the decision. [R. 95, Finding 11.]
Plaintiff requested Appeals Council review of the ALJ's decision, but the Council declined review. [R. 1-7.] Plaintiff filed this action for judicial review on April 12, 2018. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff contends the ALJ's decision is not supported by substantial evidence and that the case should be remanded. [Doc. 12.] Specifically, Plaintiff contends the ALJ failed to adequately support his RFC finding Plaintiff capable of light versus sedentary work [id. at 22-26] and failed to properly explain his consideration of Plaintiff's alleged limitations and symptoms in accordance with SSR 16-3p [id. at 27-31]. Plaintiff also contends the Appeals Council failed to properly consider new evidence that might have affected the Commissioner's final decision. [Id. at 32-37].
The Commissioner, on the other hand, contends that the ALJ applied the correct legal standards and that substantial evidence supports the ALJ's finding that Plaintiff is not disabled within the meaning of the Act. [Doc. 13.] The Commissioner argues that the ALJ reasonably found Plaintiff limited to light work [id. at 11-19] and properly analyzed Plaintiff's subjective complaints [id. at 19-23]. The Commissioner further contends that the Appeals Council properly declined to review the new evidence. [Id. at 23-27.]
STANDARD OF REVIEW
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla—i.e., the evidence must do more than merely create a suspicion of the existence of a fact and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) ("Substantial evidence, it has been held, is evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is 'substantial evidence.'").
Where conflicting evidence "allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ)," not on the reviewing court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991) (stating that where the Commissioner's decision is supported by substantial evidence, the court will affirm, even if the reviewer would have reached a contrary result as finder of fact and even if the reviewer finds that the evidence preponderates against the Commissioner's decision). Thus, it is not within the province of a reviewing court to determine the weight of the evidence, nor is it the court's function to substitute its judgment for that of the Commissioner so long as the decision is supported by substantial evidence. See Bird v. Comm'r, 699 F.3d 337, 340 (4th Cir. 2012); Laws, 368 F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).
The reviewing court will reverse the Commissioner's decision on plenary review, however, if the decision applies incorrect law or fails to provide the court with sufficient reasoning to determine that the Commissioner properly applied the law. Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980); see also Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner's decision "is in clear disregard of the overwhelming weight of the evidence, Congress has empowered the courts to modify or reverse the [Commissioner's] decision 'with or without remanding the cause for a rehearing.'" Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971) (quoting 42 U.S.C. § 405(g)). Remand is unnecessary where "the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no purpose." Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974).
The court may remand a case to the Commissioner for a rehearing under sentence four or sentence six of 42 U.S.C. § 405(g). Shalala v. Shaefer, 509 U.S. 292, 296 (1993). To remand under sentence four, the reviewing court must find either that the Commissioner's decision is not supported by substantial evidence or that the Commissioner incorrectly applied the law relevant to the disability claim. See, e.g., Jackson v. Chater, 99 F.3d 1086, 1090-91 (11th Cir. 1996) (holding remand was appropriate where the ALJ failed to develop a full and fair record of the claimant's residual functional capacity); Brenem v. Harris, 621 F.2d 688, 690-91 (5th Cir. 1980) (holding remand was appropriate where record was insufficient to affirm but was also insufficient for court to find the claimant disabled). Where the court cannot discern the basis for the Commissioner's decision, a remand under sentence four is usually the proper course to allow the Commissioner to explain the basis for the decision or for additional investigation. See Radford v. Comm'r, 734 F.3d 288, 295 (4th Cir. 2013) (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985); see also Smith v. Heckler, 782 F.2d 1176, 1181-82 (4th Cir. 1986) (remanding case where decision of ALJ contained "a gap in its reasoning" because ALJ did not say he was discounting testimony or why); Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (remanding case where neither the ALJ nor the Appeals Council indicated the weight given to relevant evidence). On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. See Smith, 782 F.2d at 1182 ("The [Commissioner] and the claimant may produce further evidence on remand."). After a remand under sentence four, the court enters a final and immediately appealable judgment and then loses jurisdiction. Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991).
In contrast, sentence six provides:
The 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 . . . .42 U.S.C. § 405(g). A reviewing court may remand a case to the Commissioner on the basis of new evidence only if four prerequisites are met: (1) the evidence is relevant to the determination of disability at the time the application was first filed; (2) the evidence is material to the extent that the Commissioner's decision might reasonably have been different had the new evidence been before him; (3) there is good cause for the claimant's failure to submit the evidence when the claim was before the Commissioner; and (4) the claimant made at least a general showing of the nature of the new evidence to the reviewing court. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985) (citing 42 U.S.C. § 405(g); Mitchell v. Schweiker, 699 F.2d 185, 188 (4th Cir. 1983); Sims v. Harris, 631 F.2d 26, 28 (4th Cir. 1980); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)), superseded by amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec'y, Dep't of Health & Human Servs., 925 F.2d 769, 774 (4th Cir. 1991). With remand under sentence six, the parties must return to the court after remand to file modified findings of fact. Melkonyan, 501 U.S. at 98. The reviewing court retains jurisdiction pending remand and does not enter a final judgment until after the completion of remand proceedings. See Allen v. Chater, 67 F.3d 293 (4th Cir. 1995) (unpublished table decision) (holding that an order remanding a claim for Social Security benefits pursuant to sentence six of 42 U.S.C. § 405(g) is not a final order).
Though the court in Wilkins indicated in a parenthetical that the four-part test set forth in Borders had been superseded by an amendment to 42 U.S.C. § 405(g), courts in the Fourth Circuit have continued to cite the requirements outlined in Borders when evaluating a claim for remand based on new evidence. See, e.g., Brooks v. Astrue, No. 6:10-cv-152, 2010 WL 5478648, at *8 (D.S.C. Nov. 23, 2010); Ashton v. Astrue, No. TMD 09-1107, 2010 WL 3199345, at *3 (D. Md. Aug. 12, 2010); Washington v. Comm'r of Soc. Sec., No. 2:08-cv-93, 2009 WL 86737, at *5 (E.D. Va. Jan. 13, 2009); Brock v. Sec'y of Health & Human Servs., 807 F. Supp. 1248, 1250 n.3 (S.D.W. Va. 1992). Further, the Supreme Court of the United States has not suggested Borders' construction of § 405(g) is incorrect. See Sullivan v. Finkelstein, 496 U.S. 617, 626 n.6 (1990). Accordingly, the Court will apply the more stringent Borders inquiry.
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a disability. 42 U.S.C. § 423(a). "Disability" is defined as:
the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 consecutive months.Id. § 423(d)(1)(A).
I. The Five Step Evaluation
To facilitate uniform and efficient processing of disability claims, federal regulations have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (noting a "need for efficiency" in considering disability claims). The ALJ must consider whether (1) the claimant is engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the impairment meets or equals an impairment included in the Administration's Official Listings of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents the claimant from performing past relevant work; and (5) the impairment prevents the claimant from having substantial gainful employment. 20 C.F.R. § 404.1520. Through the fourth step, the burden of production and proof is on the claimant. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). The claimant must prove disability on or before the last day of her insured status to receive disability benefits. Everett v. Sec'y of Health, Educ. & Welfare, 412 F.2d 842, 843 (4th Cir. 1969). If the inquiry reaches step five, the burden shifts to the Commissioner to produce evidence that other jobs exist in the national economy that the claimant can perform, considering the claimant's age, education, and work experience. Grant, 699 F.2d at 191. If at any step of the evaluation the ALJ can find an individual is disabled or not disabled, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
A. Substantial Gainful Activity
"Substantial gainful activity" must be both substantial—involves doing significant physical or mental activities, 20 C.F.R. § 404.1572(a)—and gainful—done for pay or profit, whether or not a profit is realized, id. § 404.1572(b). If an individual has earnings from employment or self-employment above a specific level set out in the regulations, he is generally presumed to be able to engage in substantial gainful activity. Id. §§ 404.1574-.1575.
B. Severe Impairment
An impairment is "severe" if it significantly limits an individual's ability to perform basic work activities. See id. § 404.1521. When determining whether a claimant's physical and mental impairments are sufficiently severe, the ALJ must consider the combined effect of all of the claimant's impairments. 42 U.S.C. § 423(d)(2)(B). The ALJ must evaluate a disability claimant as a whole person and not in the abstract, having several hypothetical and isolated illnesses. Walker v. Bowen, 889 F.2d 47, 49-50 (4th Cir. 1989) (stating that, when evaluating the effect of a number of impairments on a disability claimant, "the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them"). Accordingly, the ALJ must make specific and well-articulated findings as to the effect of a combination of impairments when determining whether an individual is disabled. Id. at 50 ("As a corollary to this rule, the ALJ must adequately explain his or her evaluation of the combined effects of the impairments."). If the ALJ finds a combination of impairments to be severe, "the combined impact of the impairments shall be considered throughout the disability determination process." 42 U.S.C. § 423(d)(2)(B).
C. Meets or Equals an Impairment Listed in the Listings of Impairments
If a claimant's impairment or combination of impairments meets or medically equals the criteria of a listing found at 20 C.F.R. Pt. 404, Subpt. P, App.1 and meets the duration requirement found at 20 C.F.R. § 404.1509, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience. 20 C.F.R. § 404.1520(d).
D. Past Relevant Work
The assessment of a claimant's ability to perform past relevant work "reflect[s] the statute's focus on the functional capacity retained by the claimant." Pass v. Chater, 65 F.3d 1200, 1204 (4th Cir. 1995). At this step of the evaluation, the ALJ compares the claimant's residual functional capacity with the physical and mental demands of the kind of work he has done in the past to determine whether the claimant has the residual functional capacity to do his past work. 20 C.F.R. § 404.1560(b).
Residual functional capacity is "the most [a claimant] can still do despite [his] limitations." 20 C.F.R. § 404.1545(a).
E. Other Work
As previously stated, once the ALJ finds that a claimant cannot return to her prior work, the burden of proof shifts to the Commissioner to establish that the claimant could perform other work that exists in the national economy. See Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992); 20 C.F.R. § 404.1520(f)-(g). To meet this burden, the Commissioner may sometimes rely exclusively on the Medical-Vocational Guidelines (the "grids"). Exclusive reliance on the "grids" is appropriate where the claimant suffers primarily from an exertional impairment, without significant nonexertional factors. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e); see also Gory v. Schweiker, 712 F.2d 929, 930-31 (4th Cir. 1983) (stating that exclusive reliance on the grids is appropriate in cases involving exertional limitations). When a claimant suffers from both exertional and nonexertional limitations, the grids may serve only as guidelines. Gory, 712 F.2d at 931. In such a case, the Commissioner must use a vocational expert to establish the claimant's ability to perform other work. 20 C.F.R. § 404.1569a; see Walker, 889 F.2d at 49-50 ("Because we have found that the grids cannot be relied upon to show conclusively that claimant is not disabled, when the case is remanded it will be incumbent upon the [Commissioner] to prove by expert vocational testimony that despite the combination of exertional and nonexertional impairments, the claimant retains the ability to perform specific jobs which exist in the national economy."). The purpose of using a vocational expert is "to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform." Walker, 889 F.2d at 50. For the vocational expert's testimony to be relevant, "it must be based upon a consideration of all other evidence in the record, . . . and it must be in response to proper hypothetical questions which fairly set out all of claimant's impairments." Id. (citations omitted).
An exertional limitation is one that affects the claimant's ability to meet the strength requirements of jobs. 20 C.F.R. § 404.1569a(a). A nonexertional limitation is one that affects the ability to meet the demands of the job other than the strength demands. Id. Examples of nonexertional limitations include but are not limited to difficulty functioning because of being nervous, anxious, or depressed; difficulty maintaining attention or concentrating; difficulty understanding or remembering detailed instructions; difficulty seeing or hearing. § 404.1569a(c)(1).
II. Developing the Record
The ALJ has a duty to fully and fairly develop the record. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). The ALJ is required to inquire fully into each relevant issue. Snyder, 307 F.2d at 520. The performance of this duty is particularly important when a claimant appears without counsel. Marsh v. Harris, 632 F.2d 296, 299 (4th Cir. 1980). In such circumstances, "the ALJ should scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts, . . . being especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited." Id. (internal quotations and citations omitted).
III. Treating Physicians
If a treating physician's opinion on the nature and severity of a claimant's impairments is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" in the record, the ALJ must give it controlling weight. 20 C.F.R. § 404.1527(c)(2); see Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). The ALJ may discount a treating physician's opinion if it is unsupported or inconsistent with other evidence, i.e., when the treating physician's opinion does not warrant controlling weight, Craig, 76 F.3d at 590, but the ALJ must nevertheless assign a weight to the medical opinion based on the 1) length of the treatment relationship and the frequency of examination; 2) nature and extent of the treatment relationship; 3) supportability of the opinion; 4) consistency of the opinion with the record a whole; 5) specialization of the physician; and 6) other factors which tend to support or contradict the opinion, 20 C.F.R. § 404.1527(c). Similarly, where a treating physician has merely made conclusory statements, the ALJ may afford the opinion such weight as is supported by clinical or laboratory findings and other consistent evidence of a claimant's impairments. See Craig, 76 F.3d at 590 (holding there was sufficient evidence for the ALJ to reject the treating physician's conclusory opinion where the record contained contradictory evidence).
In any instance, a treating physician's opinion is generally entitled to more weight than a consulting physician's opinion. See Mitchell v. Schweiker, 699 F.2d 185, 187 (4th Cir. 1983) (stating that treating physician's opinion must be accorded great weight because "it reflects an expert judgment based on a continuing observation of the patient's condition for a prolonged period of time"); 20 C.F.R. § 404.1527(c)(2). An ALJ determination coming down on the side of a non-examining, non-treating physician's opinion can stand only if the medical testimony of examining and treating physicians goes both ways. Smith v. Schweiker, 795 F.2d 343, 346 (4th Cir. 1986). Further, the ALJ is required to review all of the medical findings and other evidence that support a medical source's statement that a claimant is disabled. 20 C.F.R. § 404.1527(d). However, the ALJ is responsible for making the ultimate determination about whether a claimant meets the statutory definition of disability. Id.
IV. Medical Tests and Examinations
The ALJ is required to order additional medical tests and exams only when a claimant's medical sources do not give sufficient medical evidence about an impairment to determine whether the claimant is disabled. 20 C.F.R. § 404.1517; see also Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986). The regulations are clear: a consultative examination is not required when there is sufficient medical evidence to make a determination on a claimant's disability. 20 C.F.R. § 404.1517. Under the regulations, however, the ALJ may determine that a consultative examination or other medical tests are necessary. Id.
V. Pain
Congress has determined that a claimant will not be considered disabled unless he furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing the existence of a medical impairment that could reasonably be expected to produce the pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). Social Security Ruling ("SSR") 16-3p provides, "[i]n considering the intensity, persistence, and limiting effects of an individual's symptoms, we examine the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record." Social Security Ruling 16-3p Titles II and XVI: Evaluation of Symptoms In Disability Claims, 82 Fed. Reg. 49,462, 49,464 (Oct. 25, 2017); see also 20 C.F.R. § 404.1529(c)(1)-(c)(2) (outlining evaluation of pain).
In evaluating claims of disabling pain, the ALJ must proceed in a two-part analysis. Morgan v. Barnhart, 142 F. App'x 716, 723 (4th Cir. 2005) (unpublished opinion); see also SSR 16-3p, 82 Fed. Reg. at 49,463. First, "the ALJ must determine whether the claimant has produced medical evidence of a 'medically determinable impairment which could reasonably be expected to produce" the alleged symptoms. Id. (quoting Craig, 76 F.3d at 594); see SSR 16-3p, 82 Fed. Reg. at 49,463. Second, the ALJ must evaluate "the intensity and persistence of an individual's symptoms such as pain and determine the extent to which an individual's symptoms limit his or her ability to perform work-related activities . . . or to function independently." SSR 16-3p, 82 Fed. Reg. at 49,464; see 20 C.F.R. § 404.1528 (noting that the ALJ must consider all of a claimant's statements about his symptoms, including pain, and determine the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence).
APPLICATION AND ANALYSIS
RFC Analysis
The Administration has provided a definition of RFC and explained what a RFC assessment accomplishes:
RFC is what an individual can still do despite his or her limitations. RFC is an administrative assessment of the extent to which an individual's medically determinable impairment(s), including any related symptoms, such as pain, may cause physical or mental limitations or restrictions that may affect his or her capacity to do work related physical and mental activities. Ordinarily, RFC is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis, and the RFC assessment must include a discussion of the individual's abilities on that basis. A "regular and continuing basis" means 8 hours a day, for 5 days a week, or an equivalent work schedule. . . .SSR 96-8p, 61 Fed. Reg. 34,474-01, at 34,475 (July 2, 1996) (internal citation and footnotes omitted). The RFC assessment must first identify the claimant's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions in paragraphs (b), (c), and (d) of 20 C.F.R. 404.1545. See id. Only after this identification and assessment may RFC be expressed in terms of the exertional levels of work: sedentary, light, medium, heavy, and very heavy. Id. Additionally, the Administration has determined that in assessing RFC, the ALJ
must consider only limitations and restrictions attributable to medically determinable impairments. It is incorrect to find that [a claimant] has limitations or restrictions beyond those caused by his or her medical impairment(s) including any related symptoms, such as pain, due to factors such as age or height, or whether the [claimant] had ever engaged in certain activities
in his or her past relevant work (e.g., lifting heavy weights.) Age and body habitus (i .e., natural body build, physique, constitution, size, and weight, insofar as they are unrelated to the [claimant]'s medically determinable impairment(s) and related symptoms) are not factors in assessing RFC. . . .Id. at 34,476. To assess a claimant's RFC, the ALJ must consider all relevant evidence in the record, including medical history, medical signs, laboratory findings, lay evidence, and medical source statements. Id. at 34,477.
The ALJ's RFC Determination
In his RFC assessment the ALJ found that Plaintiff's ability to perform the full range of light work was impeded by additional limitations, but that she could still perform a limited amount of light work. The ALJ explained,
Treatment record[s] documented a significant bilateral hip impairment, cervical, lumbar, diabetes and nonsevere obesity, which create synergies by the combined effects that cause significant functional limitations. Based on the combined effects I limited the claimant to lifting 20 pounds occasionally, 10 pounds frequently, standing and walking 2 of 8 hours, sitting 6 of 8 hours, and occasional pushing and pulling in the upper and lower extremities. Based on the combined effects of the claimant's . . . hips, cervical spine, lumbar spine, diabetes and nonsevere obesity I restricted the claimant with respect to occasional climbing, balancing, stooping, crouching, kneeling, crawling, ropes, ladders and scaffolds. Restrictions with respect to frequent reaching with the left upper extremity and frequent reaching overhead were impose[d] because of the combined effects of the claimant's left shoulder and cervical spine. Restrictions with respect to hazards [were] impose[d] based on the combined effects of all of the claimant's severe and nonsevere impairments. When considering the mental longitudinal history in conjunction with the claimant's activities of daily living, I concluded the claimant had restrictions with respect to interacting with the public.[R. 93.] In light of his findings, the ALJ presented the following hypothetical to the VE to determine whether there was work that Plaintiff could perform:
Please assume you're dealing with a hypothetical individual the same age as the Claimant, with the same educational background and past work experience. Further assume that this individual can lift 20 pounds occasionally, 10 pounds frequently; can stand and walk two of eight hours, sit six of eight hours.[R. 40-41.] In response, the VE opined that, this person could not perform Plaintiff's past relevant work, but could perform the jobs of checker I, mail clerk (non post office), and router, all of which are classified as light work at the SVP 2 level and could be performed either sitting or standing. [R. 41-45.]
Pushing and pulling in the upper and lower extremities would be occasional. Occasional climbing ropes, ladders, scaffolds; balancing; stooping; kneeling; crouching, and crawling. Overhead reaching, frequent. Left upper extremity reaching would be frequent. Hazards, avoid concentrated exposure. Contact with the public would be never.
Discussion
Plaintiff argues the ALJ's RFC analysis is flawed because "the ALJ rejected the consistent opinions of long-term treating physicians and specialists [who found Plaintiff limited to sedentary work] for that of a non-examining consultant who was unaware of the treating opinions." [Doc. 12 at 25.] Plaintiff contends that the ALJ should have found she was limited to sedentary work, and then the Grids would "direct a finding of disability . . . regardless of the existence of jobs identified by a vocational expert." [Id.] At a minimum, Plaintiff argues, because her exertional capacity falls between rules with opposite conclusions, the ALJ should have explained his evaluation of Plaintiff's RFC in accordance with the Program Operations Manual System ("POMS") DI 25025.015, which Plaintiff asserts also would have resulted in a finding that she was limited to sedentary work. [Id. at 26.]
The Honorable R. Bryan Harwell has addressed a similar scenario where an ALJ found a plaintiff capable of performing light work with the additional limitations of lifting up to twenty pounds occasionally and ten pounds frequently and standing or walking approximately one hour per eight-hour workday. Pringle v. Berryhill, No. 4:16-cv-02639-RBH, 2017 WL 1615854, at *2 (D.S.C. May 2, 2017). In Pringle, a VE testified that the plaintiff could perform certain jobs that were classified as light work even with the additional restriction of standing or walking for only one hour because the jobs involved sitting most of the time. Id. Thus, the ALJ determined that there were jobs that existed in significant numbers in the national economy that the plaintiff could perform and, on that basis, the plaintiff was not disabled as defined in the Act. Id. In affirming the Commissioner's decision and rejecting an argument that the ALJ should have used the Grids to find the plaintiff disabled rather than using a VE, Judge Harwell explained,
The Fourth Circuit has held that a Commissioner makes a proper finding that a claimant is not disabled if the [VE]'s testimony upon which it relied included testimony that jobs exist in the national economy based on a hypothetical that accurately reflects the claimant's work-related abilities. Morgan v. Barnhart, 142 Fed. Appx. 716, 720-21 (4th Cir. 2005) (citing Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989)). Plaintiff does not explicitly argue that the hypothetical was improper. Moreover, other cases in this Circuit have not imposed the heightened standard suggested by Plaintiff. The Fourth Circuit has observed that the rules do[] not prescribe a set formula for assessing the availability of jobs. Walls v. Barnhart, 296 F.3d 287, 291 (4th Cir. 2002). It is clear in this case that the ALJ relied upon the [VE]'s testimony that occupations existed in significant numbers in the national economy given the limitation on standing/walking. The ALJ specifically cited to this testimony and the specific occupations and numerosity of jobs available in determining the extent of erosion caused by Plaintiff's additional limitations.
However, this Court understands Plaintiff's argument to be that the use of a [VE] in this case was unnecessary because the ALJ, in adhering to SSR 83-12, should have found that Plaintiff's limitations were "significantly reduced," and therefore rel[ied] on the Medical-Vocational Rules as a framework to determine that Plaintiff was disabled. In this case, Plaintiff's ability to perform job duties falls somewhere in the middle of sedentary work and light work. In such instances, the Medical-Vocational Guidelines (the "Grid") are used as a framework, rather than to expressly direct a finding of "disabled" or "not disabled." In Burgess v. Astrue, the Court explained that SSR 83-12 did not mandate reversal of the Commissioner's decisions where the ALJ did not set out specific findings regarding the erosion of the occupational base when the ALJ relies upon a [VE]'s analysis of the precise question of whether there are jobs in the economy a claimant can perform. Burgess v. Astrue, No. 2:07-3022, 2008 WL 4904874, at *6 (D.S.C. Nov. 13, 2008). Furthermore, SSR 83-12 considers the special situation of alternating between sitting and standing, and provides "[i]n cases of unusual limitation of ability to sit or stand, a VS (vocational specialist) should be consulted to clarify the implications for the occupational base." SSR 83-12, 1983 WL 31253, *4. This Court finds that the ALJ appropriately relied upon testimony from the [VE] and adequately explained his reasons for his findings, given that Plaintiff's exertional capacity fell in the middle of two rules, giving him a mixed RFC, and directing opposite conclusions as to the finding of a disability. Accordingly, the ALJ's determination that Plaintiff is not disabled, particularly after hearing testimony from a [VE], is supported by substantial evidence and does not constitute legal error.Pringle, 2017 WL 1615854, at *5 (footnote and record citation omitted).
Plaintiff's argument in this case is practically identical to the plaintiff's argument in Pringle, though Plaintiff relies on the POMS rather than SSR 83-12 to support her assertion that the ALJ should have limited her to sedentary work where her exertional capacity fell between two rules with opposite conclusions. [Doc. 12 at 23-26.] As an initial matter, the POMS is not binding and does not have the force of law. See, e.g., Wells v. Commissioner, 430 F. App'x 785, 786-87 (11th Cir. 2011). Moreover, DI 25025.015, on which Plaintiff relies, specifically provides, "If necessary, use the assistance of a Vocational Specialist to determine which rule most closely approximates the claimant's RFC and vocational factors of age, education, and past work experience." Social Security, Program Operations Manual System (POMS), https://secure.ssa.gov/poms.nsf/lnx/0425025015 (last visited Apr. 10, 2019). Finally, Plaintiff does not challenge the specific limitations in the RFC, only the classification as light versus sedentary. But, like in Pringle, the ALJ testified that Plaintiff could perform the referenced jobs even with her stand/walk restrictions. The undersigned agrees with Judge Harwell's reasoning in Pringle, sees no reason to depart from his sound analysis, and finds no basis for remand based on Plaintiff's challenge to the use of the VE.
Evaluation of Symptoms
The determination of whether a person is disabled by pain or other symptoms is a two-step process. First, the ALJ must determine whether objective medical evidence shows the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities and which could reasonably be expected to produce the pain or other symptoms alleged. Craig, 76 F.3d at 593, 595. Only after a claimant makes this threshold showing is the ALJ obligated to evaluate the intensity and persistence of the claimant's pain, and the extent to which it affects her ability to work. Id.
A claimant's symptoms, including pain, are considered to diminish her capacity to work to the extent that alleged functional limitations are reasonably consistent with objective medical evidence and other evidence. 20 C.F.R. § 404.1529(c)(4). Further, "a formalistic factor-by-factor recitation of the evidence" is unnecessary as long as the ALJ "sets forth the specific evidence [she] relies on" in evaluating the claimant's subjective symptoms. White v. Massanari, 271 F.3d 1256, 1261 (10th Cir. 2001) (internal quotation marks omitted). In making these determinations, 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." SSR 16-3p, 2017 WL 5180304, at *10.
In March 2016, the Social Security Administration superseded its policy on assessing the credibility of a claimant's statements, and ruled that "credibility" is not appropriate terminology to be used in determining benefits. See SSR 16-3p, 2016 WL 1119029 (S.S.A. Mar. 16, 2016). "[W]e are eliminating the use of the term 'credibility' from our sub-regulatory policy, as our regulations do not use this term." SSR 16-3p, at *1. "In doing so, we clarify that subjective symptom evaluation is not an examination of an individual's character." Id. "Thus, under SSR 16-3p, the ALJ is no longer tasked with making an overarching credibility determination and instead must assess whether the claimant's subjective symptom statements are consistent with the record as a whole." William M. v. Berryhill, No. 7:17-cv-296, 2018 WL 4659252, at *7 (W.D. Va. Aug. 20, 2018), Report and Recommendation adopted by 2018 WL 4655755 (W.D. Va. Sept. 27, 2018). "Although SSR 16-3p eliminates the assessment of credibility, it requires assessment of most of the same factors to be considered under SSR 96-7p." Keefer v. Colvin, No. 1:15-cv-4738-SVH, 2016 WL 5539516, at n.5 (D.S.C. Sept. 30, 2016). Here, the Court will analyze the ALJ's decision based on the provisions of SSR 16-3p, but the Court notes that the methodologies "required by both SSR 16-3P and SSR 96-7P, are quite similar. Under either, the ALJ is required to consider [Plaintiff's] report of her own symptoms against the backdrop of the entire case record; in SSR [96-7], this resulted in a 'credibility' analysis, in SSR 16-3, this allows the adjudicator to evaluate 'consistency.'" Vass v. Berryhill, No. 7:17-cv-87, 2018 WL 4737236, at *6, n.4 (W.D. Va. June 12, 2018), Report and Recommendation adopted by 2018 WL 4704058 (W.D. Va. Sept. 30, 2018). --------
The following is a nonexhaustive list of relevant factors the ALJ should consider in evaluating a claimant's symptoms, including pain: (1) the claimant's daily activities; (2) the location, duration, frequency, and intensity of the claimant's symptoms; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medication taken to alleviate the symptoms; (5) treatment, other than medication, received to relieve the symptoms; and (6) any measures the claimant has used to relieve the symptoms. 20 C.F.R. § 404.1529(c).
The ALJ's Analysis
At step one of the two-step process, the ALJ confirmed the presence of objective medical evidence showing the existence of medical impairments which could reasonably be expected to produce the symptoms alleged by Plaintiff. [R. 87.] Next, the ALJ found that Plaintiff's
statements concerning the intensity, persistence and limiting effects of these symptoms [were] not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision. Accordingly, these statements have been found to affect the claimant's ability to work only to the extent they can reasonably be accepted as consistent with the objective medical and other evidence.[Id.]
Discussion
Plaintiff argues the ALJ's findings are unreasonable, focusing on the three purported inconsistencies that directly follow the ALJ's statement that Plaintiff's statements about her symptoms were not entirely consistent with the evidence: (a) that although Plaintiff testified that sitting more than fifteen minutes aggravates her pain, she also testified that she sits in a recliner from 7:30 a.m. to 11:00 a.m., 11:30 a.m. to 1:00 p.m., and 2:00 p.m. to 6:30 p.m.; (b) that although Plaintiff testified her medication causes drowsiness, she denied fatigue throughout the medical evidence of record; and (c) that Plaintiff testified that she had not received treatment from a mental health provider. [Doc. 12 at 27-31.] The Court agrees with Plaintiff that some of the reasons listed by the ALJ are not inconsistent with Plaintiff's testimony, and the ALJ failed to "clearly articulate[ the determination] so the [Court] can assess how the [ALJ] evaluated [Plaintiff's] symptoms." See SSR 16-3p, at *10.
For example, Plaintiff's testimony that sitting more than fifteen minutes aggravates her pain is not inconsistent with her testimony that she rests in a recliner for much of the day. In common usage, "sit" means "to rest on the buttocks or haunches," Merriam-Webster, https://www.merriam-webster.com/dictionary/sit (last visited Apr. 10, 2019), and "recline" means "to lean or incline backwards," id., https://www.merriam-webster.com/dictionary/recline (last visited Apr. 10, 2019). Thus, being unable to sit upright in a chair for more than fifteen minutes is not inconsistent with being able to recline for most of the day in a chair designed for that purpose. Plaintiff implicitly made this very point in her testimony when, in response to a question about what Plaintiff does to ease her pain, she specifically testified, "I sit on the recliner most of the day, . . . that getting the pressure off my back and my hips, that's what does it is sitting in the recliner most of the day, or lying down." [R. 110.]
Additionally, that Plaintiff denied fatigue is not inconsistent with her testimony that her medications cause drowsiness. "Fatigue," in this context most commonly refers to "weariness or exhaustion from labor, exertion, or stress," Merriam-Webster, https://www.merriam-webster.com/dictionary/fatigue (last visited Apr. 10, 2019), while "drowsy" means "ready to fall asleep," id., https://www.merriam-webster.com/dictionary/drowsy (last visited Apr. 10, 2019); see also MedlinePlus, https://medlineplus.gov/ency/article/003088.htm (last visited Apr. 10, 2019) ("Fatigue is different from drowsiness. Drowsiness is feeling the need to sleep. Fatigue is a lack of energy and motivation.").
Because the ALJ appears to have relied only on these purported inconsistencies to discount Plaintiff's testimony that sitting for more than fifteen minutes aggravates her pain and that her medications cause drowsiness, the Court cannot find that substantial evidence supports the ALJ's decision. None of the other activities or evidence noted by the ALJ specifically address Plaintiff's ability to sit or her drowsiness. Further, relying on MRI and test results, medical records, a history with the patient since 2007, and physical exams, Plaintiff's treating physician opined that she "[w]ould need to take frequent, unscheduled breaks" and "may need to lie down or recline" [R. 488], which actually supports Plaintiff's testimony. Accordingly, the Court concludes that the decision of the Commissioner should be reversed on this basis.
Remaining Allegation of Error
Because the Court finds the ALJ's failure to properly explain his consideration of Plaintiff's symptoms is a sufficient basis to remand this matter for further consideration, the Court declines to address Plaintiff's allegations regarding the Appeals Council's failure to consider new evidence. On remand, however, the ALJ should consider Plaintiff's additional evidence—a statement from Christopher Clemow, M.D., dated October 13, 2017, and a statement from Eric Loudermilk, M.D., dated June 28, 2017. [R. 13, 55.]
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g), and the case is REMANDED to the Commissioner for further administrative action consistent with this Report and Recommendation.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge April 11, 2019
Greenville, South Carolina